CLOSING SPEECH FOR THE DEFENDANTS FRANZ HOESSLER, JUANA BORMANN, ELISABETH VOLKENRATH AND HERTA EHLERT
Major Munro opened his address by saying that public opinion throughout the whole of Europe had been outraged by the dreadful conditions found at Belsen on 15th April, 1945, and because of what had been disclosed during the case in respect of the gas chamber at Auschwitz. Public indignation had been thoroughly roused, but the Court was not concerned with moral issues and would not be so until such time as any of the accused was proved guilty of the charges against them.
Before deciding whether or not a crime had been committed, it was common sense to ask first of all whether what was alleged to have been done was a crime at all, and then to decide, if it was, whether it was a crime of which the accused could be said to be guilty. In this respect he wished to adopt what Colonel Smith had said. At the time of the offenses there was a conflict between German domestic law and International Law; and he maintained that where there was such a conflict a man was not presumed to know International Law, and apply it in defiance of his own law, but was bound to obey his own law; is any crime was committed by this obedience, then it was committed by his Government and was a matter for high diplomatic action or, as in the case of the matters before the Court, for accusations, consideration and decision at Nuremberg.
Major Munro stated that a lot of evidence had been heard in the court about conditions in concentration camps other than Belsen and Auschwitz, and he submitted that they were not there to judge the concentration camp system nor the ghastly policy of extermination of the Jews, but to judge people called upon compulsorily by their Government to undertake the execution of its policies. The accused had no option but to obey their own law, and the Court had to judge the manner in which the executive duties had been carried out.
Two types of evidence were before the Court - affidavit evidence and the evidence of witnesses who gave testimony on oath. With regard to the affidavits, the Prosecutor had suggested that the accused had changed in appearance since the date when the photographs were identified. Major Munro did not think that that was a true picture of the position. When the photographs were recognised in the first place this had been done by people who knew the accused themselves in the flesh, and if they had known them well enough to identify them then they ought to have been able to do so in the court. Litwinska had originally identified Ehlert this way, but failed to do so in court. As other Prosecution witnesses had identified Ehlert in court it was proof that she could now be easily recognised. Again, there was the monotonous regularity with which the Defending Officers had to ask the witnesses as to discrepancies between their statements and their oral evidence. The difficulties in making these statements were obvious, but the fact that there were such difficulties and that there were possibilities for error and misunderstanding must have the effect of making all these affidavits thoroughly unreliable and open to suspicion. The last point with regard to the statements was the large amount of hearsay evidence, and although hearsay evidence was admissible before the Court, Counsel submitted it ought to be discounted altogether when it appeared in an affidavit.
As far as the oral evidence was concerned, Major Munro accepted that of the British officers, Mr. Le Druillenec, Dr. Leo and Dr. Bendel in their main essentials. With regard to the evidence of Dr. Bimko and the other Jewish girls, the Court had had a good opportunity of deciding and making up their minds as to the value of these witnesses, but he would like to point out that when a girl had been arrested for no apparent reason, sent to a concentration camp, her father, mother and family sent to a gas chamber, and she herself had ended her captivity in the dreadful conditions at Belsen, it was not unnatural and not surprising she should come into court revengeful, possibly vindictive.
The oral evidence against Hoessler was concerned with two types of accusation only - the gas chamber selections and responsibility for the public hanging of four women at Auschwitz. Many witnesses had said that Hoessler was present and took an active selective part in the gas chamber parades, but he had told the Court quite frankly what his duties were on those parades - that he had never selected victims himself, and, as far as he could, had even prevented as many as possible from going to their deaths. The testimony of the witnesses did not shake the accused’s insistence that he did not do any personal selecting, and they might very well have seen him sorting out people on parade for what they would not have realised at the time were for very different purposes. There had been a great deal of confusing explanations about what did in fact happen on these and other parades, and that in itself was a significant thing. Counsel submitted that because they knew there had been gas chamber selections, the witnesses had jumped to the conclusion that if people were picked out on parade and never seen again then they had been sent to the gas chamber. There had been no satisfactory as proof to whether these expressions of opinion had any foundation in fact, or even that Block 25 was only used for gas chamber victims and for nothing else. One thing about Auschwitz was perfectly clear, that there were many parades and that on these parades people were selected and sorted out for all sorts of purposes, namely, working parties, and that those thus selected were sometimes sent away from the camp to work somewhere else and were never seen again. There were selections for scabies, and there had been evidence that Block 25 was used to house such infected cases. In any large camp people were continually being sorted out, paraded and detailed for all sorts of purposes, and in the absence of any positive proof that people could have known beforehand that any particular parade was for a gas chamber selection and no other, the accused must, at the very least, be given the benefit of the doubt. If a very large number of people were paraded knowing it was for a gas chamber selection, what was the behaviour and temper of that parade going to be? It was difficult indeed to keep order on even the morning or evening Appell. How much more difficult would it have been to control large numbers of people who were perfectly well aware that if picked out they were going to be sent to a horrible death? and Counsel suggested that it would have been impossible. Would normal human beings stand there quietly and wait to be selected? Would they, after being selected, still remain quiet and orderly and wait to be sent to their death? Such an assumption was the height of absurdity. These people, who outnumbered their guards to a tremendous extent, would most certainly have panicked and stampeded if they had had no real doubt that they were going to be sent to the gas chamber. No evidence had been offered that any scenes of that kind had occurred, and this was conclusive proof that the people on these parades could not possibly have known what they were parading for.
The same applied to the arrivals of transports, and the way the gas chamber was constructed proved a deliberate intention to avoid panic. The victims were led to what they were obviously intended to believe was a shower bath, they were given a towel and sent along ostensibly to have a shower. It must have been that the intended victims did not know beforehand what was in store for them, and if this was so then nobody could have known in advance that any particular parade was in fact for the gas chamber. The Court had heard Hoessler’s own account of his duties, in which it was clear he did have quite an amount of sorting out to do himself but that must be distinguished from actual selections of victims. Counsel submitted that not only was there clearly insufficient proof that Hoessler had selected the victims, or that his activities could permit of no other interpretation, but that there was positive evidence that there were plenty of circumstances which could have and did mislead these witnesses. Hoessler, although denying he selected victims himself, admitted he was frequently present on these parades in his capacity, as orderly Lagerführer, and the learned Prosecutor could probably say that anyone present in any capacity was a party to the crime, the enormity of which was too much for words and could not be described. Counsel would not deny that these mass exterminations were crimes of a very horrible type, although whether they were war crimes for which the accused could be held responsible was another matter.
Major Munro said that this brought him to the defence of acting under orders. He quite realised that where there was a conflict of domestic law and International Law there was a body of opinion which said that a man should refuse, even at his own peril, to obey an order which was obviously unlawful and wrong according to all standards. He submitted that the basis for that was that if he refused he would be protected by his own system; but that did not apply when there was a conflict between domestic and International Law. Where there was conflict between domestic and International Law the peril in which he stood would be not from a superior officer but from his own State and Government.
Four witnesses, Sunschein, Klein, Sompolinski, and Litwinska, had asked the Court to believe that there were special circumstances to prove that Hoessler's part in these selections was malicious and without any qualification of superior orders whatsoever. Sunschein had said that Hoessler found a pyjama outside her block, held a selection there and then, and that those selected were sent off presumably to the gas chamber because she saw smoke coming out of the crematorium chimney. Counsel submitted that this was nothing other than a colossal presumption, and only showed that some type of selection was made and that those selected were taken away in the direction of where Block No. 25 lay. Hoessler himself said about this that what happened was that there were Kommandos working in a squad called Union, and that sometimes he got reports that several members had not worked satisfactorily or had done something wrong. Then he made selections by taking people who were reported in that way from the Kommando, and sent them into quarantine in Compound A - that is the blocks where people who did not work were put. Helen Klein had asked the Court to believe that she herself had been selected on a parade, had gone to Hoessler to plead for her life, and had been told she had lived too long, and that then she had run away. From the evidence before the Court it would appear she was the only one who ever protested, that she did not say it was Hoessler who had selected her, an she was not sent to a gas chamber. Hoessler said that he remembered no such incident, denied its possibility, and pointed out that if she had appeared to be perfectly healthy she would not have been chosen for the gas chamber anyway. Did the Court believe that if the circumstances had been as described by this witness, and Hoessler had actually taken the attitude which she alleged, this girl could have possibly escaped so easily? Major Munro submitted that the whole story was pure nonsense, that it proved nothing against Hoessler, and that his own explanation was obviously the correct one.
Sompolinski had begun his evidence by insisting that Hoessler was the Kommandant of the gas chamber or the crematorium, but admitted in cross-examination that he came to this conclusion because he thought Hoessler was in charge of the transports arriving there. Hoessler had to patrol the train and posted himself at the far end beside where. crematorium was, and this was the obvious explanation of why the witness should have come to this rather absurd conclusion. Lastly, there was the dramatic story told by Litwinska of having actually been put in the gas chamber and then taken out again by Hoessler. In the first place, that was almost the opposite of an accusation, but that did not matter much as Counsel personally did not believe the witness anyhow. Hoessler also denied it, and there was no reason why he should if it were true. Dr. Bendel had given evidence that bodies were piled so high inside that ghastly room that when the doors eventually were opened the corpses fell out. How could anyone who opened this door find this girl apparently without any difficulty, merely by lifting up her hand, and then drag her to safety? The whole story was fantastic. In her affidavit Litwinska had said that the man who took her out wore a gas mask, but when asked in court she said she did not know. She said this selection was at Christmas, 1941, but this was outside the period of the charge, and at that time there was no Birkenau and no Hoessler. Counsel submitted that it was clear that Hoessler was present only in his capacity as Lagerführer to keep order, and that this was his sole connection with the selections; and that he did everything he could not only to save as many people as he could from doom, but also to improve the conditions in the camp.
Hoessler was alleged to have attended and to have been responsible for the public hanging of four women in December, 1944, and he admitted that four women were in fact executed and that he officiated at that execution. But he denied having given the orders or, being otherwise responsible personally for sending these women to their deaths. About 7th October, 1944, these women had been accused of stealing explosives during a revolt at the crematorium, and some ten to twelve weeks elapsed before the execution took place. It was obvious that enquiries must have proceeded throughout that period, and the Court were entitled to assume that the matter had been referred to higher authority, which effectively disposed of any suggestion that Hoessler ordered and carried out the executions on his own. The accused, therefore, was in exactly the same position as the public hangman and could not be held liable for what the Court could not hold was not a lawful sentence of death, according to the code of any country at war, following due process of law. There was no question whatever about the order being obviously illegal or morally wrong, or contrary to all normally accepted moral standards.
In the affidavit evidence, Adelaide de Jong had stated that she was forcibly sterilised on the orders of the Kommandant of the camp, named Essler. Counsel considered that as Hoessler had never been Kommandant of the camp, all that this witness had done was to confuse the identity of the camp Kommandant. Kalderon had deposed that Hoessler had repeatedly administered savage and brutal treatment to half-starved internees - a phrase with a very familiar ring which sounded like the answer to a leading question on the part of the investigating team. In the pages and pages of affidavits there was not another suggestion of that kind, nor had any oral witness made any similar accusation whatever in court.
With regard to Belsen, there was only one specific allegation against Hoessler, the affidavit of Josef Hauptmann. He said that attached to the train in which one of the transports was travelling there was an ambulance wagon, and there were still nine alive in that wagon when they arrived at Bergen station. Hoessler came up and gave instructions that the nine sick persons were to be shot, but the deponent did not see them shot. Again, this was the only allegation of its kind, and it was usual in all courts of criminal law that if somebody was charged with murder it had to be proved that the victim alleged to have been murdered was in fact, dead. Hoessler was only in Belsen for a very few days, in charge of Camp No. 2 at the Wehrmacht Barracks, and he was never near Camp No. 1, except when he went to get his orders from Kramer and possibly on one occasion, some six weeks before, when he had come along and taken away some women. He had otherwise no connection with Camp No. 1 and could not be held responsible for the conditions there. He had got his orders from Kramer to take over a part of the Wehrmacht, Barracks and, according to the evidence, he had done everything he possibly could to feed the prisoners there and achieve some semblance of order. Counsel submitted that Hoessler was entitled to an acquittal on both the Auschwitz and Belsen charges leading out of the question of collective responsibility.
The first charge against Bormann was that she had a large and vicious dog which she made attack women. She admitted having a dog, except for a short period, and her answer was that she liked dogs. There was some confusion about this dog; some said it was a large black animal, some a brown one. When asked to explain why it was that so many witnesses and deponents made the same type of accusation, Bormann said that all she could think of was that she had been mistaken for a woman called Kuck, who was like her in figure. The only line which Counsel could possibly take for her defence was that there was a very distinct possibility of mistaken identity. The only serious obstacle to Bormann’s defence was the evidence of the accused Koper, and the Court might well say that she at least could not possibly be making any mistake about identity, and there were markings on her body which the doctor had said were at least consistent with dog bites. That might be so, but she might have been bitten by a dog at any time. Koper’s evidence was that of an accomplice, since they were jointly charged, and her name had kept popping up in the case like a jack-in-the-box as an irresponsible, hysterical, unprincipled informer, and a tool of the S.S. Not only was she an informer, but also a bearer of false information, and such a mischievous bearer that the prisoners could not put up with it any longer and set upon her. Counsel submitted that not only was she a ridiculous person but a vicious one, and no weight to what she had said in her statement or evidence could be given by the Court. Dr. Bimko, Rozenwayg, Sunschein and Lasker all remembered Bormann as having had a dog, but they had never seen that dog attack anyone. Only two witnesses, Szafran and Wohlgruth, had made any specific allegations, and they spoke clearly of one and the same incident. Their two accounts of this one incident appeared to be suspiciously alike, and Szafran had been able without hesitation to place definite dates in answer to specific questions. The Prosecutor could not turn round and say that dates meant nothing in this case and that witnesses could not be expected to remember them. If that were true, one could only say that an honest witness would say that they could not really remember dates. But that was just what this witness would not do, and in her eagerness to accuse somebody she had committed herself to untruths so patent as to make her evidence look silly. In her affidavit no mention was made whatever of any such incident. Would it not have been likely that if she had seen such an appalling incident she would have remembered it at the time she was shown the photograph and put it in her affidavit? The Court was therefore entitled to wonder whether this girl’s evidence was not the result of a conversation between her and the other witness, Wohlgruth. Both Szafran and Wohlgruth said that the incident had taken place in April, 1943, but the accused insisted that she had not arrived in Birkenau until 15th May, 1943, a month later. The learned Prosecutor did not cross-examine on this date, and it would seem therefore that the evidence must stand. Counsel’s defence was a complete and unqualified denial that those attacks were ever instigated by Bormann, and an important feature also was that she had not arrived until a time after the alleged incident had taken place.
Major Munro maintained that as the various affidavits against Bormann referred to incidents alleged to have taken place in the summer of 1944 there was no point in going into them in detail, as the accused insisted she had never been in Birkenau at all, and she had not been in the least shaken in cross-examination. One curious feature about the evidence with regard to the dog was that whilst Bormann admitted having her dog at Belsen, not a single witness had come forward to accuse her of making it attack anyone there - a very significant point.
The second type of charge against Bormann was that in Belsen she beat prisoners very severely with her fists and with a rubber truncheon. Three affidavits referred to assaults at Auschwitz and one at Belsen. Counsel pointed out to the Court that Bormann was a small and very frail woman and that it was inconceivable that she could inflict such punishment on internees. She said she never beat anybody with a rubber or any other kind of stick, but admitted having kept discipline by hitting with her hands, and Prosecution witnesses had admitted that that was sometimes necessary. It was not surprising that the Aufseherinnen at these camps had sometimes lost patience in what must have been a very difficult task indeed to control. Sunschein in her evidence had said that the accused beat people frequently, but that as it stood could not be called a war crime. Rozenwayg had said that the accused was guilty of beating, but in cross-examination had admitted that she was hit once only by Bormann with her hands. That was typical, not only of the way that witnesses exaggerated, but also of the of translation, where the word "schlagen" could mean anything from a single blow up to a beating. The other witnesses who came into court must have had equal opportunity of watching her sometimes, and yet they had not said that she had done those things which other deponents said she did.
The third type of charge against Bormann was that she had been present on gas chamber selections. This she denied, and her defence was the same as that for Hoessler, namely, that she must have been seen on some parade or other sorting people out and sending them away, and that the deponents had made a mistake. Only two live witnesses had said that she was on a gas chamber selection, Jonas and Szafran. The affidavit of Yilka Malachovska, only proved that 50 girls were taken out of a party of 150 and were sent outside the camp. It was perfectly obvious that they were being transferred from one Kommando to another.
With regard to Volkenrath, only one witness, Hammermasch, had come into court and recognised her by her correct name. Sunschein had spontaneously recognise Volkenrath as Weinniger, which was her sister’s name, and Frommer had said without any prompting that it might have been the accused’s sister who made her kneel down. Counsel stated that there could not possibly be a defence of mistaken identity, but that the confusion of the two sisters must have the effect of destroying every single affidavit in respect of Auschwitz, and that the Court could not be satisfied that an affidavit really did concern Volkenrath unless they had something special to connect it with her. The accused’s answer to the affidavits, alleging specific ill-treatment, was that she denied that they were true, although, with regard to the gas chamber charges, she admitted she was on these parades a few times, but only to keep order, and that she took no part in the selections. There was no satisfactory proof that she did any such selecting, and Counsel applied to her the defence of acting under coercion in so far as she was present on parade at all.
Volkenrath had admitted maintaining discipline by hitting with her hand and boxing ears, but she denied ever having used a rubber truncheon or a wooden stick. Of the oral evidence, there had been remarkably little, and only eight witnesses had come into court and referred to her in any way at all. Of these eight, only three said anything about her at all. Hammermasch had spoken of two incidents; one when Kramer interrogated and hit the escaped Russian girl, and the other when the girl was said to have been taken and beaten. With regard to the Kramer incident, she said exactly the same as Ehlert, that she had been present at the interrogation. When other girls were interrogated later Ehlert said that as Oberaufseherin Volkenrath had had to be present, but she denied the incident about taking a woman into a room and beating her, and thought that Hammermasch was mixing this incident up with the other one where she herself had left during the interrogation by Kramer. This, Major Munro maintained, was a perfectly, reasonable explanation. The oral evidence against Volkenrath was extraordinarily weak in comparison with the affidavits, and he asked the Court to judge the weight of the affidavits in comparison with what had been heard in court.
Ehlert, although technically at Auschwitz, had been at one of the sub-camps called Risko, and the only connection between that camp and Auschwitz was that it had been administered from the headquarters at No. 1. There was no connection whatsoever between it and Birkenau, and Major Munro asked the Court for a clear acquittal for Ehlert on the Auschwitz charge. The only other type of charge left was that she beat people and generally ill-treated them. Herkovitz had alleged that Ehlert found some jewellery on her, beat her, and made her run behind her bicycle to the Political Department, and that she was then put into the bunker for three weeks and given food every two days. Ehlert admitted that there was an incident like that but she strongly denied that she beat the deponent either before or after she had taken her to the Political Department. If she had been beaten, then that had nothing whatsoever to do with Ehlert. Margit Weiss and Bialek had both described in affidavits the incident with regard to Koper which Ehlert herself had spoken of in court, and Counsel submitted that it was perfectly clear that Koper had falsely informed against the prisoners, that Ehlert had confronted them together and was then powerless to stop the rumpus which had followed. There was no evidence that Ehlert had taken an active part in the assault. Litwinska, in her affidavit, had accused Ehlert of shooting a victim outside the cookhouse, but when she came into court, although recognizing Ehlert, she said she made no accusation against her in regard to this. With reference to the oral evidence, Sunschein and Klein had said that Ehlert stood at the gate and struck prisoners with her hand as they passed, and Lasker, even went so far as to add that she did her job very well. All this Ehlert agreed with. The only other witness was Hammermasch, who spoke of the two incidents Counsel had already mentioned. That was all the evidence against her.
Major Munro said that this left him only with concerted action to deal with. The Prosecutor on the first day had said that if the Court were satisfied that the conditions he had outlined had existed in Belsen and Auschwitz, then the Prosecution had amply made out a case against each of the accused persons who had taken an active part at either of those camps, however small it might have been. There was a very great danger of serious injustice if one was to say that because the conditions in Belsen were revolting and because the gas chamber at Auschwitz was such a ghastly thing, therefore anyone on the staff, even functionaries, were all responsible equally for what everybody else was proved to have done in the two camps. If that was true, then all that would be necessary would have been to select one of the accused, prove a murder against him, prove that the rest were members of the staff and then proceed to convict. But this was negatived by the Prosecution in a case where many of the witnesses were themselves functionaries - Dr. Bendel and Sompolinski had both worked in a Sonderkommando, and if that proposition was true, then these two people should be in the dock themselves. As they were not indicted, or even under arrest, the Prosecution could not therefore make such a broad claim.
Counsel submitted that "concerted" action, according to a dictionary, meant "planned together, contrived, or mutually arranged," and he submitted that it could have no other meaning than the normal common-sense dictionary meaning of the word. He could find no evidence of planning, contriving or arranging. Could it be said that it was mutually planned and arranged to send all these millions to the gas chamber; or that Hoessler, Bormann, Volkenrath and Ehlert had planned and contrived in Belsen to bring about the course of deliberate and homicidal starvation? If the Court were satisfied there was no such evidence, then these accused could not be held responsible for anything other than what they had been proved to have done themselves. If Counsel could satisfy the Court that he was entitled to a verdict of acquittal for all or some or any of these four accused in respect of their individual acts, then they must thereby also be automatically released from responsibility under Regulation 8. However, if the Court said they were guilty, it was Counsel’s submission that they could only be held collectively responsible for other acts of similar type and nothing higher. If they were found guilty of having beaten people, they could not be collectively responsible for having shot people. |