War Crimes Trials - Vol. II The Belsen Trial. 'The Trial of Josef Kramer and Forty Four Others'

The Trial (Defence - Legal Argument for the Defence)


Colonel SMITH - May I take the opportunity of saying once more that we are very grateful to the Court for the assistance it has given in enabling us to present this argument, and you will understand that I am not merely using words of formal courtesy. Our task has been made difficult for reasons upon which I will not dwell, since they are not under the control of the Court, but quite apart from that, this case is one of more than ordinary importance, it is of absolutely crucial importance. Everything that we say and do here is recorded for all future generations, and what we say at this bar, and to whatever decision the Court will come, will be subject for a long time to most minute scrutiny, by historians and by lawyers and many others.

What is involved here is very much more than the fate of these obscure individuals whom the accident of operations has swept into this dock. What is really involved is the issue whether our country will be able, in this crisis and in the face of considerable popular clamour, to maintain a reputation which I think she has won and deserved for upholding the rule of law as between nations in all circumstances. That is an issue which is clearly before the Court at the moment as well as that of the individual accused. We are concerned here solely to determine whether these accused are guilty or not guilty of a war crime, a technical expression in the light of International Law. That being so, it follows that a decision that the accused, or any of them, are not guilty of a war crime under the Law of Nations is no bar to any future proceedings if they are charged upon the same or similar evidence for their acts in Courts administering other law, such as Polish law, German law, or it may be some other.

You will remember the Moscow Declaration of 1943, when it was provided that the majority, of war criminals - that is, excluding the very top level - should be tried in the countries where their crimes were committed, and since a large number of the cases concerned here are Polish, I will begin by saying that every case which originated in Poland, at Auschwitz, can be tried by a Polish Court as an offence against Polish law. I am informed also that the Polish Courts have also tried people for offences committed against Poland outside Poland under Polish law. That is a common feature of the Continental codes, though it is not English law. Furthermore, they can be tried under German law. When I say German law I ought to explain that it means German law under the control of the Military Government. It is important, because whether the cases are tried under Polish law or German law under the Military Government, or under some other, Czech or Hungarian or whatever it may be, the defence which it is now my duty to urge will not be available in those Courts. The reason for that, particularly in so far as the German law is concerned, is that law, No. 1 of the Military Government prevents the Courts now from relying upon any law which gives any privilege to the National Socialist Party or which in any way discriminates against people by virtue of their race religion, etc.

All those Courts are controlled by Military Government in this sense, that if you are dissatisfied with the decision of a German Court, even an acquittal, we can quash the proceedings and try it again under our own Military Government Courts. I want to make it clear, not only to the Court - who I am sure understand it - but to any others who may be interested, that the function of this Court is limited to trying the case of guilty or not guilty of a war crime. As war crimes deal with the Law of Nations, such a decision can in no way affect and in no way prejudice any future proceedings if they are arraigned upon the same or similar evidence under Polish, German or any system of law. Nothing that can be said here, no decision by way of an acquittal, in any way limits the responsibility of the German Government. The German Government, as Article 3 of the Hague Convention says, remains liable for all the acts done in its name, and the German Government is responsible for paying the fullest compensation to every non-German subject who has suffered in these concentration camps, or to the dependents of those who have perished. I shall have occasion from time to time during my remarks to emphasise the immense importance of this distinction between the responsibility of the State and the responsibility of the individual. I mention, it now merely by way, of preliminary in order to emphasise that the function of this Court is limited to a particular job, and that nothing we do here can in any way affect what may subsequently be decided by other authorities.

I want to sketch in a kind of background in outline to the general argument which I shall try to present. I have said that this Court administers only International Law. Our Court is exactly similar to the Prize Court which sits in time of war, to decide upon the legality or illegality of captures made by His Majesty’s ships. It is exactly on all fours in the sense that the Prize Court is constituted by the King’s Commission; it is a British Court purely for that purpose. Having been constituted by the King, it does not administer a law laid down by the King or by Parliament, but it administers the Law of Nations. Now that is precisely the position of this Court. It is constituted by Royal Warrant, and the Royal Warrant lays down the procedure to be followed by the Court, just as the Order in Council lays down the procedure to be followed by the Court of Prize. But neither the one Court nor the other will take its law, as distinct from procedure, from the King or from Parliament. Parliament could intervene, but Parliament does not. That is made very clear in a case which will be familiar to the learned Judge Advocate, the case of the Zamora, which is reported in 1916 2 Appeal Cases at page 77, in which the question in issue was whether the Prize Court was bound by certain rules laid down by Order in Council, and the Privy Council said with considerable emphasis that the Prize Court could not be bound by an Order in Council so far as the law was concerned; it could be bound like every other Court by an Act of Parliament, but there was none in issue. Exactly in the same way it is clear that this Court must use its own judgment independent of the Manual of Military Law and of any other authority whatsoever.

That brings me to another point. In the Regulations you will find - I think it is under Regulation 8 (3) - that the Court takes judicial notice of the Laws and Usages of War. I propose to dwell upon that for one minute, because I really think that that single law is more important than all the rest of the Regulations put together, and it determines very largely the course of my own argument. Judicial notice is a technical phrase which, in effect, means the Court is supposed to know as a matter of its own military knowledge what the Laws and Usages of War are. Every officer is supposed to know them - and I emphasise that because I think it necessary to reassure this Court that when I say I am going to talk about International Law the impression is apt to be taken that I am going to lead the Court into some kind of mysterious legal jungle where only the specialist or expert can find his way about. Actually it is going to be very different indeed. My argument is going to be as free as possible from anything in the way of technicalities. I hope I shall use no argument which is not equally intelligible to every officer here, whether he happens to be a lawyer or does not. The importance of this phrase of the Regulations which I have quoted is this, that it appeals directly to the military knowledge of every member of the Court individually. It says to him; you as an officer are supposed to know what the Laws and Usages of War are; you as a soldier and an officer are supposed to know what is meant by a violation of those orders. You do not need a lawyer to tell you what is meant. Therefore I, without in any way belittling the importance of the functions of the learned Judge Advocate, wish to impress upon the Court at this early stage that it is a responsibility of every individual member of the Court as an officer to exercise his personal and individual judgment upon the arguments which will be put before him. I have myself sometimes been a Judge Advocate and I certainly would be the last to belittle the importance of the office. I am not in any sense belittling it, but, at the same time, I ask the Court to share the responsibility of the learned Judge Advocate when they are asking themselves: What is a war crime; is this a war crime or not?

I now propose to deal with Chapter XIV of the Manual of Military Law. Having said that the Court administers International Law, the next point I wish to emphasise as strongly as I possibly. can, is that the law which you will administer is the law at the time of the offence. That, of course, is an obvious and almost universally recognised principle of all criminal law. I wish I could say it was universally recognised, but I cannot, because it has been deliberately violated by the Germans. But, generally speaking, it is a fundamental principle of all criminal law in civilized countries that you cannot punish a man for a crime which was not definitely a crime under the relevant law at the time the act in question was committed.

No one will disagree with that outside Germany, and I would like to draw your attention to the fact that we have emphasised in our conquest of Germany that fundamental principle which the Germans themselves violated. In the first law of the Military Government we have laid this down: "No charge shall be preferred, no sentence imposed or punishment inflicted for an act unless such act is expressly made punishable by the law in force at the time of its commission." Now I am emphasizing that because I think it is possible that an argument may be used that International Law is progressive, and whatever it is in the books the Court may be invited to go ahead and create a new precedent for something which has never been done before. If that is in the mind of my learned friend I will say it is a most dangerous thing, and what is more relevant in this particular case is that it would embody one of the worst features of the German system which we are trying to destroy. By law on 10th May, 1935, Hitler was very impatient with the irritating tendency of the German judges to decide cases according to law, and he laid it down that people were to be punished although they committed no offence against the law if what was called sound public opinion, "gesundes Volkempfinden" as it is called in Germany, demanded their punishment. We are in some danger of that here. Public opinion, sound or, unsound, has lashed itself up into a fury over this case, and all of us sitting here at this bar have some personal experience of it - not that it is relevant, but I can assure you we have been made to feel it.

You see what that German law meant. It meant really the abrogation of the rule of law. Germany in the old days would have been proud to call itself "Rechtsstaat," but the law of 1935 made an end to it. Under that law anybody could be punished for anything; Hitler did not care whether it was against the law or not. Therefore I feel I cannot overemphasise, even at the risk of being tedious, the importance of asking the Court to consider only the law as it was clearly enforced at the time of the alleged offence, and on ordinary principles of criminal law it will be for my friend, Colonel Backhouse, to prove that every act charged was a criminal act punishable in the individual concerned at the time it was committed. It is no function of the Court to ask itself whether the law is a good law or not, or whether it is adequate. If you will be good enough to glance at the Manual of Military Law, Chapter XIV, you will find rather an interesting footnote at the foot of page 4. This is the chapter which has been inserted later into the Manual and the footnote reads: "The experience of the Great War subjected the Hague Rules to a severe test. On the whole . . . the Rules did not work badly, and their absence would have been disastrous." Then it goes onto say: "At some future time they will require to be reconsidered at an International Conference and brought more up to date. Further provision is specially required for dealing with the treatment of resident enemy subjects, the means of carrying on war, the bombardment of undefended places, the question of military reprisals, the punishment of war crimes, and the occupation of enemy territory."

Now whether you agree with that or not, it was clearly in the minds of the learned authors of that chapter, Colonel Edmunds and Professor Oppenheim, that they did not think the law was quite good enough, they thought it needed being brought up to date, and as they say quite properly it must be brought up to date by international agreement. You will see, therefore, that the law may possibly be defective in the opinion of the Court; you may think it is a great misfortune that the law, as we find it does not contain rules which enable us in this Court to punish these people. However, that is a matter to be decided elsewhere. May I here draw a contrast with the forthcoming trials at Nuremberg. Nobody pretends that that is a trial under the existing law in 1939. In fact, I think I may say that lawyers as a whole are rather doubtful about the whole proceedings, but that is another matter, It is, at any rate, a special case governed by special international agreement of all the Powers concerned. This Court, on the other hand, does not rest upon any international agreement; it is constituted by purely British authority by His Majesty’s Warrant, and its duty is purely to administer the law exactly as it finds it at the time of the alleged offence.

The rest of what I have to say is what I will call my main argument, and for the convenience of the Court I will say at this point that it fall under two main heads. First, I will discuss the question of what is and what is not a war crime. Second, I will deal with the question of responsibility. Throughout my argument I should like to say that I am really speaking continuously, as it were, in two capacities. On the one hand as counsel addressing a Bench; on the other hand as an officer appealing to the military judgment and experience of other officers. There are various points, one being more important than the other, but the two are interwoven all through.

The first point is: What is and what is not a war crime? Here I would direct the attention of the Court to Chapter XIV of the Manual of Military Law, but perhaps I should begin by saying a word or two about the chapter. It dates from 1914 in its present form, and the authors were the late Colonel Edmunds and Professor Oppenheim. For the most part the text is substantially the same as the last edition of Professor Oppenheim’s well-known work on International Law before his death. Technically it is not an authority in the same sense that lawyers understand the word "authority"; that is to say, something which is binding upon us. On the first page it describes itself as being, I think, the best guide at present available on the subject of which it speaks. It is not meant for lawyers but for serving officers as a practical working instruction telling them what they have to do when they come up against a particular point. It is written in non-legal language, but at the same time I think for the most part it is perfectly sound in law, and I am going to appeal to it with some confidence.

With that much introduction to this question of war, crimes, I will say this, that in every crime you have to consider three elements: the Act, the Perpetrator, and the Victim. In each case the Prosecution has got to prove that the accused is guilty in all three respects. That is to say, the act constitutes the thing which the law punishes, the perpetrator is the person who can commit the act, and the victim is the person against whom it can be committed. In most cases the last two do not matter, but there are some crimes which can be committed by some people only - by doctors, by the clergy, and by solicitors, and some, as we all know, committed only by soldiers. Similarly, certain crimes can only be committed against certain people, against people under such and such an age and so on.

Those three points, if relevant, have all got to be proved by the Prosecution. I am going to begin with the question of the act. What acts constitute war crimes? Here I am going to ask the Court to consider with the utmost care the relevant passages of the Manual which, as I say, are substantially the same as in Oppenheim’s book. They are also substantially the same as in the American Manual.

Paragraph 441 of Chapter XIV of the Manual says this: "The term ‘War Crime’ is the technical expression for such an act of enemy soldiers and enemy civilians as may be visited by punishment or capture of the offenders. It is usual to employ this term, but it must be emphasised that it is used in the technical military and legal sense" - notice "military" and "legal" only - "and not in the moral sense." It goes on to say in paragraph 442: "War crimes may be divided into four different classes:

(i) Violations of the recognised rules of warfare by members of the armed forces. (ii) "Illegitimate hostilities" - that does not concern us - "(iii) Espionage and war treason" - that does not concern us - and "(iv) Marauding" - which also does not concern us. The only thing we are concerned with at the moment is sub-section (i) of paragraph 442: "Violation of the recognised rules of warfare by members of the armed forces." Paragraph 443 gives a long list of examples. They are not necessarily exhaustive, but it is difficult to think of anything else. My first submission upon this is that when you read "Violations of the recognised rules of warfare by members of the armed forces" and go on to read paragraph 443, which gives a long list of examples, you will see that they have only one thing in common; they have all something to do with war. They are all concerned with military operations, ending up with the treatment of the inhabitants of occupied territory. That is the common feature of them all.

The rules of International Law are all ultimately reasonable rather than technical. There is a good reason for them all, and if you turn back a page you will find the reason. The number of the paragraph is 438. The general arrangement of this manual corresponds, broadly speaking, to the rules of warfare attached to the Fourth Hague Convention. One has got to remember that it has got to be considered as a whole. If you go through, it you will find, following the Hague Convention, that it deals with one subject after another; the question of combatant and non-combatant, the question of legitimate weapons and that sort of thing, the question of legitimate and illegitimate bombardments, prisoners of war, the sick and wounded, and ends up a little before this with the occupation of enemy territory. That takes you down to paragraph 434. That follows the rules attached to the Hague Convention in the same order, and it is, as it were, a War Office commentary upon the Hague Convention. In other words, the greater part of this chapter is devoted to explaining what you can and cannot do in actual operations. That is the general principle.

I now come on page 81 to the means of securing legitimate warfare. You have been told already what legitimate warfare is and is not, and then you have this section which gives the means of securing legitimate warfare. Complaints are always made in any war. Paragraphs 435 and 436 reemphasise the principles of State responsibility. It quotes the Third Article of the Convention: "The offending State should be made to pay compensation and is responsible for all acts committed by persons forming part of its armed forces." Then it goes on to say what remedies are available: "As war is the last remedy of Governments for injuries, no means would appear to exist for enforcing reparation for violations of the laws of war. Practically, however, legitimate warfare is, on the whole at least, Secured, through several means recognised by International Law. Moreover, it is in the interest of a belligerent to prevent his opponent having any justifiable occasion for complaint, because no Power, and especially no Power engaged in a national war, can afford to be wholly regardless of the public opinion of the world. (438) These means fail into two classes according to whether or not they fall under the category of self-help. To the one class belong: complaints lodged with the enemy; complaints lodged with neutral States. To the other class belong: punishment of war, crimes committed by enemy soldiers and other enemy subjects; reprisals; and the taking of hostages."

If you read this as a whole you get it placed in the right perspective. The punishment of war crimes is a means of securing legitimate warfare and nothing else. That is very important and I do wish to impress that upon the Court as strongly as I can. The only purpose of making a war crime punishable in the individual is that it is a means of securing legitimate warfare, and it is introduced because without this terror hanging over individuals you could not be certain that mere international action on international level would secure legitimate warfare. That explanation governs everything that follows and I cannot emphasise it too strongly. In the light of that you must read the definition which is described as being technical military and legal, which appears on the next page at paragraph 442 and is explained further in the following paragraphs. At this point I will refer to the introductory speech of my learned friend Colonel Backhouse, who, I think, is under a misunderstanding. My friend quoted paragraph 383 of the Manual, which says: "It is the duty of the occupant to see that the lives of inhabitants are respected, that their domestic peace and honour are not disturbed, that their religious convictions are not interfered with," etc. That is a paraphrase of Article 46 of the rules attached to the Fourth Hague Convention. Where I think he has gone wrong is he has failed to see that the words: "It is the duty of the occupant" refer only to the enemy State. Throughout the Hague Convention these words, "The occupant," are always used in the sense of the enemy State. It occurs over and over again in the Convention and is always in that sense. But when it is a question of making a case against individuals, that is entirely irrelevant. It is the duty of the occupying Power to see that everything is done properly in occupied territory; and if the occupying Power fails to provide for that, then, of course, Article 3 of the Convention comes in, which I have already quoted, namely, the occupying Power must make compensation.

The same thing applies to the next paragraph, that is the Laws and Usages of War in respect of the inhabitants of occupied countries, occupied by a belligerent. Here is a curious slip. "Paragraph 442" - says Colonel Backhouse - " of the same chapter reads as follows: ‘War Crimes may be divided into four different classes, the first of such classes being violations of the recognised rules of warfare.’" If you turn to the Manual you will find that Colonel Backhouse has overlooked the second part of that paragraph: "by members of the armed forces." So it is easy, as I say, to misunderstand these sections if you do not bear in mind that the primary purpose of the rules is to secure the responsibility of the enemy government, and that it is only in certain exceptional cases, which are carefully defined in the Manual (and I would submit correctly so), that responsibility rests upon the individual.

As I have said, when you read these paragraphs together and as a whole you will see that they are all bound together by this common principle that all acts cited are directly connected with the operations of war, and that the purpose of the punishment of war crimes is that it is a means of securing the legitimate conduct of the operations of war. Bearing that in mind, let us turn to the case or cases before us. Here I am going to be very untechnical and possibly painfully obvious when I say that these have nothing to do with the war at all. This policy of concentration camps was started by Hitler within a few weeks of his ascension to power in early 1933. It was continued with ever increasing intensity throughout the whole time of peace, and it would have been continued after the war if the Germans had won the war. It was part of a national German policy, a policy which we are all agreed is detestable, primarily the degradation and ultimate extermination of the Jewish race. More than that, in addition to the unfortunate Jewish race the Germans regarded as their inferiors the Slavonic races, who were treated with scarcely less severity. So I would like to submit to the Court, and as strongly as I can, that we are dealing here with incidents which occur, it is true, in time of war, but which have no logical connection with the war whatever - a policy which was begun in peace as a peace-time policy and was intended to be carried on as a permanent and long-term policy. As soon as the Germans overran some territory, east or west, it does not matter, they at once put into effect in that conquered territory their racial policy, and they would have continued to do so with even greater intensity, if they had happened to win the war.

Put it in another way. From our own point of view, in what way does it assist the security of our forces to punish someone who has been guilty of misbehaviour in a German concentration camp? How do we assist the operations of our armies by punishing people who have done this or that wicked thing, such as at Belsen or a great many other places?

A Member of the Court - I should just like to ask a question. I am not clear because in paragraph 442, sub-section (ii) of Chapter XIV, that covers members who are not members of the armed forces, and I cannot see the difference.

Colonel SMITH: It is covered in this way. If someone who is not a member of the armed forces takes part in hostilities, including the commission of a war crime, he thereby comes under the second sub-paragraph. "Illegitimate hostilities in arms committed by individuals who are not members of the armed forces." Either he is a member of the armed forces or he is a civilian committing illegitimate hostilities, one way or the other. But apart from those examples given in paragraph 442, which are divided under those four heads, there are no war crimes. As I say, the Manual is not authoritative in the sense in which lawyers understand that word, but I submit that it has very great weight. If you turn to the American Manual, which the Americans call the Basic Field Manual No. 27, Rules of Land Warfare, you will find that it is substantially, though not verbally, the same as our own. The relevant Articles are 345 and following. They follow the lines of the Hague Convention. Article 346, "Remedies of Injured Belligerent," is practically the same as our paragraph 438. Article 347, "Offences by Armed Forces" gives the examples in almost the same words as our Article 442. Then you have : "Hostilities committed by Individuals not of Armed Forces." Then people called "War Rebels," that means who rise against the military governments; "Unauthorised Belligerents," "Armed Prowlers" (the Americans have added that), and then "Marauders," which is the same as our own.

Therefore you see that the American Manual is substantially the same as ours, and so far as I have been able to carry out my own personal enquiries, there is a substantial general agreement among the various military manuals as to what a war crime is. They all have this in common, that it must be a crime connected with the prosecution of the war in some way or another, either when hostilities are still proceeding or by resisting occupation in a territory which is under military government. Although I have made the fullest search available to me since the last time I was here, I can say with certainty I have been unable to find any example of a war crime which does not come under one of those heads. The burden of proof is not on me but on my learned friend, Colonel Backhouse, and I challenge him with some confidence to produce any example in history of a war crime which cannot be brought within the principles which I have tried to explain to the Court.

Note 6 on page 82 reads: "The term ‘War Crime’ has by usage in 1914-18 been employed more especially in respect of violations of the recognised rules of warfare rather than to the remaining classes of war crimes enumerated. Its more general meaning is, however, well established in International Law." I think what the author had in mind was probably the Leipzig Trials of 1919, in which the best known examples were the submarine sinkings and things of that kind. This bears out what I have been trying to say. As is well known, the British Government collected a large number of alleged war criminals of the last war, and by arrangement they were prosecuted not before our Courts or before International Courts, but before the German Supreme Court. Most of them were acquitted. I think I am right in saying, however, that all those cases which were put forward by the British Government after the last war fell within the principle that I have mentioned. They charged the offender with some act such as the sinking of an unarmed ship without warning, which had a direct relation to the operations of war. The point I have been, trying to make is that the acts charged in this charge-sheet have nothing to do with the operations of war at all. They are operations which happened in times of war in pursuance of a policy initiated six years before the war broke out, and a policy which was intended to be carried through to the end in peace and in war until it had achieved its object. I think that was probably what was in the author’s mind.

I have already referred to the important fact of the Court being instructed to take judicial notice of the Laws and Usages of War. I suggest to you that what I have been just trying to explain is what every soldier would regard as a war crime. None of us until these cases were raised would ever have dreamt of saying within our military experience we should treat as a war crime something remote from the theatre of war, committed in pursuance of a policy originating in peace, and having no relation whatever to any military operation on the face of the earth. For the moment I will assume the rôle of an officer talking to officers, and I would ask you: Would not any officer, if he was asked before all this business began what a war crime was, have answered in the sense I have just been trying to explain? I think he would. I am sure my learned friend will have a difficult task in trying to convince the Court to the contrary.

I have said enough about the question of the act, and I am now going on to speak about the perpetrator and victim. Concerning the perpetrator I need not say very much. Looking back at paragraph 442, which is substantially identical with the American Manual, you will find that the first sub-section is: "Violations of the recognised rules of warfare by members of the Armed Forces." Of course, civilians can commit war crimes such as espionage, war treason, and marauding. Also a civilian can be guilty of the murder of a prisoner of war. That is all. But if he does the latter, he is committing an act of hostility and an illegitimate act of hostility for which he can be punished under the second sub-section of paragraph 442, but here none of the acts charged in this charge-sheet, except possibly one, come under that head.

This is a convenient point to refer to the few cases charged where the victims have been prisoners of war. One of them was a British subject who was captured as a prisoner of war and transferred to the concentration camp - a clear international wrong. What did the wrong consist in? The wrong consisted in ceasing to treat him as a prisoner of war, and taking him out of the camp where he was protected by the Geneva Convention and putting him in that concentration camp, where he was exposed to the same treatment as any other inmate. The responsibility there was with those who took the man out and sent him to Auschwitz or Belsen or elsewhere. But the responsibility of the people at Auschwitz and Belsen was the same in regard to that man as any other inmate. I do not know if they even knew he was a prisoner of war. In any case they, had no option but to treat him as anyone else. That is why I emphasise now the importance of drawing a clear distinction between the responsibility of the German State and responsibility of the individual in the particular case. That is a very good example.

Supposing a prisoner was murdered in his prisoner of war camp by a soldier or a civilian, you would have a clear case of war crime. If you take him away from a prisoner of war camp and put him in an internment camp, the German Government is responsible for failing to treat him in accordance with the Geneva Convention. When he is in an internment camp he is just the same as any other internee and the responsibility is the same. The violation, as I say, may be either by members of the armed forces or by civilians, but by civilians only in certain limited cases which I think are sufficiently set out in the Manual, and in all cases the same thing applies as before; whether they are committed by soldiers or, civilians, they, must have direct connection with the operations of war.

Turning to the victim, here I shall have to ask the patience of the Court in an argument which is more technical than anything else I propose to inflict upon you. They must be Allied nationals. I think we are agreed upon that and the charge says so - again for a very good reason. It is no part of our business to punish crimes committed by one German against another, nor is it our business to punish Germans for crimes committed against their allies. I say that for this reason. I notice references to Hungarians and Italians who are certainly not Allied nationals, even though some of them have come over to our side. The words "Allied nationals" have a definite meaning and relate only to those who are nationals in the list of countries known as the "United Nations." There is a definite list which does not include Hungary or Italy, even if the present Italian Government is co-operating. I do not think the Prosecutor is likely to press the matter, so I will not say much more about.

On the question of the Poles, who are, I think, in the large majority, together with some Czechoslovakians and possibly Austrians, I have got rather a more difficult task. Article 442 includes among war Crimes the ill-treatment of the inhabitants of occupied territory. What do we mean by "Occupied Territory"? Our Government regards Poland and the greater part of Czechoslovakia as territory occupied by the Germans in the sense of the Hague Convention. But, on the other hand, putting ourselves in the position of the accused, who are Germans, there arises the question: What is the accused to do? Does he obey the law of his own country or does he act upon the international position? Here comes a very important point which will come in a good deal in what I have to say during several stages of this argument.

I am submitting to the Court with confidence this proposition. Wherever there is a conflict between International Law and the law of a particular country, it is the duty of the citizen of that country to obey, his National Law. For that I have got quite overwhelming legal authority. I have gone into as many countries as I have had time to look at and they are all the same. I will refer the learned Judge Advocate to two cases only, and although I could overload this heavily with authority I will spare the Court needless references.

The first case I would mention is that of Mortensen v. Peters in 1906, in the High Court of Justiciary, which is the Supreme Court in Scotland, reported in 8 Session Cases, 93: 43 Scottish Law Reports 872. In that case the question was quite distinctly raised, and it arose this way. The British Parliament passed an Act prohibiting certain forms of fishing in various waters which included the whole of the Moray Firth in Scotland. They prohibited it in comprehensive terms. Now, the waters of the Moray Firth include a great deal more than the recognised limits of territorial waters. The offender was a Norwegian trawler, which was fishing outside territorial waters but within the area covered by the Statute. He was convicted in a Scottish Court and was carried on appeal to the High Court of Justiciary in Scotland (which is the same as the Court of Appeal in England), and the Court unanimously held that they were not concerned as to whether the State violated International Law or not, and we have to admit that it did. The law of the land, however, expressed in an Act of Parliament, was binding on the Court and they had to uphold the conviction. You will find it very fully expressed in the judgment, and it could not very well be otherwise. The Court is bound by Parliament as representing His Majesty’s Government, and every administrator, police official or ordinary citizen is bound by the law of the land, and if Parliament inadvertently oversteps the limits of International Law that is a matter not for the individual citizen, or the judge, or policeman; it is a matter of discussion on high level between the two governments concerned. Actually, that was what happened when it was drawn to the attention of the Government. They discontinued these prosecutions against foreign fishermen and squared it up with the Norwegians, and introduced an amending Act which said the prosecutions in those cases would only be directed against British vessels.

I could spend the whole afternoon piling up authorities to this effect, but in order to show that this is not a purely British view I will quote an American case, again from high authority, because it comes from the Supreme Court of the United States. The case is that of Fong Yare Ting V. United States in 93, 149 United States Reports 698. Congress there did exactly, or rather more violently, what our Parliament did. They passed legislation in direct violation of a Treaty with China. It was one of these Acts for the exclusion of Chinese and putting various restrictions upon them which was, in fact, contradictory to a Treaty between the United States and China. I will just quote from the footnote which sums up the decision in this way: "the provision of an Act of Congress passed in the exercise of its constitutional authority must, if clear and explicit, be upheld by the Courts, even in contravention of stipulations in an earlier Treaty."

Of the other researches which I have undertaken I will merely say this, that the attitude of the German Courts is exactly the same. I will not go into further detail because this is highly technical. As far as I have been able to find out, that is the common principle of the Courts of all countries, and where there is a conflict between International Law and Municipal Law the citizen is bound to obey his Municipal Law, as a matter of individual duty. That does not diminish the responsibility of the State towards the offending State for its failure to make its internal law correspond with its international obligations. That is not only technically correct but it is fundamentally reasonable.

The average Englishman can be expected to know the law of his own country; and if we are faced with a case where our Parliament has passed a Statute which is said to contravene International Law, any one of us, officers or civilians, would say something like this: "Well, I do not know about this International Law. I know this is the law because the policeman tells me it is the law and I have to do it." That is the common sense attitude of the ordinary man and I think it is the only feasible attitude. What I have said there is going to govern a good deal of what I have to say during this argument.

In the first instance I am going to apply it to this question of occupied territories. Naturally, Great Britain did not recognise the annexation of Poland or of the greater part of Czechoslovakia, but by German law, which Kramer and all the other defendants consider, Poland was German territory - perhaps I would be more precise if I said about half was German territory and the rest was Russian - but at any rate, the western half of Poland was formally annexed to Germany. The Court will remember when Germany invaded Poland in 1939 the country was overrun and resistance ceased, I think, after about three weeks. During that time the Russians invaded from the east. They reached an agreement on 8th October, 1939, with the Germans, the effect of which was substantially that Poland was divided up approximately on the Curzon Line, and the western half became German in two classes and the eastern half became Russian. That is the position as far as the eastern half is to-day. Great Britain did not recognise either one or the other. This German part was divided into two parts, of which the western was formally annexed and became part of Germany. The eastern part was called a General Government. The distinction between them was purely technical, except for this, that the western half was treated as German for all purposes; the eastern part was no less German, it was not a temporary military occupation, it was a permanent arrangement by which Eastern Poland was put under a General Government which had, of course, dictatorial powers. My point is this, that neither of them were intended to be temporary occupations. The annexation of the western part and the area called the General Government in the eastern part were both equally permanent, and the Polish State, from the German point of view, ceased to exist, and the German law with minor variations was equally applied to both. We need not bother very much with the internal differences, but every German in those parts (and Auschwitz is in the annexed part) was bound, too, by German law. It was no longer temporarily under military occupation in the sense of the Hague Convention. German law was applied by German authority, and the Polish State and Polish nation had ceased to exist. That was the position as Kramer or anyone else found it when he was in Poland.

As I say, the individual is bound by the law of his country. We may say that the occupation was premature. It may have been, and, of course, the course of the war has undone it. Let me give you a more precise parallel to that - the South African War. That began in October, 1899, and lasted until June, 1902. In May, 1900, about eight months after the beginning of the war, the British Government rather prematurely published a proclamation annexing permanently the Transvaal and the Orange Free State. It may have been premature, I think it was, but that does not matter. My point is this: Would any officer of this Court, if he had been an officer serving in South Africa at that time, have ventured to say to his superior: "I am afraid the Government has been premature in annexing these countries, and I am afraid I cannot obey your orders"? It would be a perfectly impossible situation. Any one of us, if we had been officers in South Africa or ordinary citizens, would have had to obey the articles of the proclamation and leave it to the high-ups, if it was doubtful, to fight it out in the normal way on the international level.

Of course, every crime must be considered to a certain extent from the point of view of the criminal. If it is something which he cannot be expected to know or understand, that is a material element. For instance, if the person is of a certain age or class, such as a policeman; it is, I believe, more serious in law to assault a policeman than to assault anybody else. If, however, you did not know that, you could not be convicted of assaulting him as a policeman. If it consists in committing a crime against the occupant of an occupied territory - and the accused person is bound by the law of his country to treat it as part of Germany - the material part of the guilt is simply not present. I hope I have made that point clear.

What it comes to is this. So far as all these accused were concerned, Auschwitz was Germany, and the people in it were German subjects. They were not German citizens because the citizenship in Germany belongs to a privileged class now by virtue of the Nuremberg law of 1935, which restricts German citizenship to pure Germans. This law restricts Jews and Poles and various other people. But all these people were German subjects; that is to say, subject to the full force of German law, and owing allegiance to Germany although they were not German citizens in the sense that they had the privileges of German citizens under the German Citizenship Law of 1935.

What I have said applies also to Czechoslovakia, except that it is a little more complicated there. This dismemberment of Czechoslovakia was piecemeal, and the first act of dismemberment (I am afraid we were committed because it was carried out with our active assistance) was the annexation of Sudetenland, for which we must all share the blame. Six months after we had agreed to that, Hitler invaded the rest of Czechoslovakia, and what happened was that part of it was transferred into the Protectorate of Bohemia, part of it was given to Hungary, and a little bit of the eastern end was given to Russia. However, I need not go into all these details because the substance of the matter is the same as in the case of Poland, namely, that from the point of view of any German all that territory except the bits given to Hungary or Russia, was German territory either by direct annexation or by a Protectorate, which is only a mere technical difference.

Therefore at this point a war crime can be regarded, firstly, from the point of view of the act, secondly from the point of view of the perpetrator, and, thirdly, it can only be collectively committed against a certain victim, and it is for the Prosecution to prove that he was an Allied national, and an Allied national under the law by which the accused was bound.

This very nearly concludes my first argument under the general heading of what is or what is not a war crime, or what is in more technical language a violation of the Laws and Usages of War. I foresee the Prosecutor, rightly or wrongly, saying that by the books or by the authorities this is not a war crime, but that we have got to bring our law up to date. International Law is not static; it is continually developing. It has to adapt itself to meet new situations as they arise. Therefore, he may ask the Court to say that something which is not a war crime according to all the books and according to all the precedents of history is going to be a war crime from the time the Court gives its decision. If that is in the mind of my learned friend I am going to try and meet it. Obviously it is in the nature of a flanking attack after the frontal attack has failed. It is dangerous to me for this reason - International Law does develop. It is not static: if it were static it would be dead. I have in suitable cases strongly followed that doctrine myself, but what I will try and submit to the Court now is that the development is always thee application of accepted principles to new situations and never a reversal of accepted principles themselves.

I will take as an example a case in which I had personal concern. That was a case of contraband in the early stages of the war. There is a very long history behind this question of contraband stretching back to the Middle Ages, and there have been innumerable controversies as to what articles could and could not be included in the list of contraband of war. At the beginning of the war we made a kind of proclamation and treated almost everything as contraband. Certain neutrals objected to that and they pointed out, quite rightly, that we had never gone as far as this before, and they quoted all kinds of precedents to show that we were going very much further than anybody else had gone before; and it was perfectly true. The answer to it all was also perfectly sound. The principle of contraband is that you are entitled to stop and capture any cargoes which are going to help your enemy in carrying on the war. It meant the control over every form of commerce, but the technical and physical requirements of our armed forces have practically brought every article of commerce within the principle of contraband. That was the answer which His Majesty's Government put forward to those neutrals who raised that point. I thought then, and think still, that it was a perfectly sound answer. At any rate, it worked, because it was a case of taking the principle of contraband and applying it to the modem development.

I could cite many other examples very largely on warfare in which one has to take account of modern developments, both in the character of the modern State and in the new system of modem commerce and technical implements of warfare. They have their effect not upon the principles of International Law but upon its application to the particular problems of to-day. Does that apply here? Can you say, that some circumstance has arisen which compels us to treat as a war crime something which has nothing whatever to do with the war?

We are not faced with a new problem here. The concentration camp started in Germany, in 1933, and in Italy much earlier, and, broadly speaking, the ill-treatment of subject races has been only too common in history in one form or another. The facts, unfortunately, are not new, except in their intensity and atrocity, but if you say that modern International Law ought to punish maladministration in concentration camps in a country we happen to conquer, then, of course, you are coming up against the fundamental principle which I have mentioned, namely, that you must not, at any cost, make your law after the event in criminal law. I mentioned the German Treaty which violated that principle. It has been held up as a violation not only of war but of conduct, and I would suggest to the Court that the argument which might be based upon this perfectly sound document is a deadly and perilous thing if it is applied in a case like this, because it would, in effect, lead us into acknowledging one of the most terrible things that our enemy has done. On the other hand, Of course, it would be flatly contrary to principles we have laid down in our military government law for the conduct of Germany.

I now come to the second main heading of my argument, and the first question we have to ask ourselves is? Can these individuals be individually punished for the various things they are accused of doing? Let me say again what I have said before. In International Law, the general principle is that the Stare and not the individual is responsible. As an example I mentioned the case when one of our ships makes a capture which is subsequently proved to be illegal and is condemned as such by the Prize Court. That does not mean that the captain of the vessel is punished. It means that we have to pay compensation for the ship and its cargo. If, to take another example, a British subject is maltreated in Mexico, as has happened in the past, then the Mexican Government has to pay compensation to the British Government. Any question of punishment is for the Mexican Government to settle as an internal affair. That principle is well established, and for obvious reasons.

To that principle there are a few exceptions, of which one is the pirate. International Law has always permitted a pirate to be punished by anybody who can catch him, because he is an enemy of the human race. He is punished because he would not be a pirate if any Government was responsible for his action. There are other exceptions created by a large number of treaties which deal with such things as the opium trade and white slave traffic, which are punishable. Another exception is that of the war criminal. There again there is a reason for the exception; the reason being that which we have already seen in Article 438, where if you had not got the right of punishing war criminals on the spot you could not carry on your operations of war and security. None of those reasons apply to the case now before you. We are only dealing with these cases after the war is over. Nothing that has happened in concentration camps has affected our operations in the slightest degree while the war was still in progress.

I want to refer to the argument with which l have dealt in some length in connection with occupied territories. I am coming a little later to the so-called defence of superior orders, but before I come to that I want to make it clear that the problem here in, most cases is not that of superior orders as it appears in the Manual or in the other text-books. The cases there put before you are all cases where the soldier, or some other subordinate, is faced with the difficult alternative of obeying his commander, who is obviously giving an illegal order on the one hand, or punishment by his superior or by a Court of law on the other. That is the problem.

What I am going to suggest to the Court now is that all these orders were legal, so far as it is a matter of orders at all. Here, I am afraid, I must invite the Court to consider rather carefully the extraordinary structure of Germany. We have in Germany a most extraordinary situation in which there was not and could not normally be any conflict between an executive order or legal ruling and an illegal one, in the sense that a low does not permit it. In the very first stages of Hitler’s regime the Reichstag abandoned all its powers and Hitler became the Executive and Legislator in one. Not only did Hitler himself combine all these powers, but he also delegated them to certain members who were directly responsible to him. Each member had the force of law within his limits, and the most important one of these members was Himmler, with whom we shall be especially concerned this afternoon.

Himmler held high office in the S.S. before it became a legal organization at all, and after the revolution his rise became very rapid indeed. In due course by various stages he became first of all head of the police, including the Gestapo and S.S, and in 1943 he became Minister of the Interior. My point is that under the German arrangement he could issue an order which as such had the force of law. That was reinforced from the other point of view by a important law of 10th February, 1936. I am not sure if that has been put in or not. That put the Gestapo and, in fact, all police activities beyond the reach of the law in so far as they were of a political nature. The practical result of that was no police action (and the word "police" covers an immense lot in German) could be challenged in any court; neither could it be questioned by anybody except at the peril of his life. Apply that to the most important thing in the charges, the gas chamber at Auschwitz. If you ask me to produce a law legalizing the gas chambers at Auschwitz and Belsen, of course I could not do it. All that was needed was an order from Himmler saying "Have a gas chamber." That order was a law which every German had to obey in so far as it concerned him.

It is not disputed that the Gestapo and, in fact, all police activities were exempt from control of the Courts. No complaint could be put before any Court in relation to what they did. It will also not be disputed, I think, that under the German constitution there was a delegation of legislative power to each of these chief commissars within the zone of his activities. From that - and this is my own inference - I will say that everyone was bound at his own peril to obey as law any order given by the competent authority within his department. Applying that to the particular case of the gas chamber and other atrocities, what it means is this: If Himmler said a gas chamber was to be erected, he did not need to pass a special law, for it. His order was sufficient, and everyone concerned had to obey it. That is my proposition and I believe it to be a perfectly sound one. What it leads to is this. In the case of the average German it was impossible to have the kind of conflict which might arise in England, where a man might question the order of his superior officer and say: "You cannot give me that order under the Army Act," and so on. An order as an order is perfectly legal, and where there is a conflict between the internal law and the international law the individual must always obey his internal law.

If you look at Kramer’s evidence in this case you will find that he lays emphasis upon the fact that all the decisions in matters of policy including the gas chamber, for instance, came from above; that he was a mere administrator who carried on the routine work of the camp, and that such a question as to who was to be put into the camp or, taken out of the camp, for death or for any other purpose, lay outside his power, That is Kramer’s own evidence and it is not contradicted anywhere in the evidence so far as I have read it. I would submit to you upon the facts that that is a correct inference to be drawn from the evidence put before the Court.

I will submit that upon the evidence which has been put before the Court that the Kommandant of the camp held a very humble rank indeed, equivalent of a captain, and, a fortiori, all the people under him were nothing more than the humblest kind of administrators. At Auschwitz, Kramer was merely the head of one section in this vast camp and all the big decisions were taken outside him and over his head and he could do nothing about it.

Now I am coming to my last point, this so-called, defence of superior orders. I say "so-called" because I think it is rather a misleading description of that defence. I ask the Court to look at the Manual of Military Law, paragraph 443, which has been amended very recently in a rather significant way. Paragraph 443 begins by saying: "The more important violations are the following" - then it runs along for a dozen lines or more, and then in the original edition, which is before me, it goes on to say: "It is important, however, to note that members of the armed forces who commit such violations of the recognised rules of warfare as are ordered by their government, or by their commander, are not war criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to the other means of obtaining redress." That was how it stood until last year, and, I think in April, it was altered. The effect of the alteration is not to destroy but greatly to water down the so-called defence of superior orders. I am going to submit to the Court that the original text was right, that the amendment is wrong, and as I have already explained, the Court is its own judge of law and is not bound to take it from the War Office, Privy Council, or anybody else.

The original text which I read a moment ago is in precise agreement with the American Manual. In paragraph 347 of the American Manual it is said: "Individuals of the armed forces will not be punished for these offences in case they are committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall." So until April of last year our Manual was in exact agreement with the American Manual and with many others too. I submit that that was correct and in accordance with ordinary experience of the necessities of military discipline. The first effect of the alteration is to throw us out of step with the Americans and with the rules of other armies as well, and I submit it is most unfortunate that the amendment was made in April, 1944, at a time when war crime trials were in active preparation. Where is the authority for the amendment? The original text was that of Edmunds and Oppenheim in 1914. Now Professor Oppenheim died in 1919 and his book went through various editions, and the latest text which has been incorporated into the Manual is taken practically verbatim from the latest edition of the 2nd Volume of Oppenheim. Now, it is always a dangerous thing to clip a little bit out of a book without reference to its general context in the whole book. I do not expect, the Court to read the whole of Professor Oppenheim’s two volumes or his other writings, but I think I may say this. In the book as a whole he maintains very strongly the doctrine of the Viennese school, in which he was brought up, that International Law has an inherent superiority to Municipal Law, and where the two are in conflict Municipal Law must be wrong. If you were to read Professor Lauterpacht at length you would find, that Professor Lauterpacht, who is a very able man indeed, does maintain that doctrine which is commonly known as the doctrine of the Viennese school, in which he himself as a young man was brought up. Somebody in the War Office or elsewhere, I think, who found himself severely blocked in preparing war criminal trials - I am merely guessing now - by this paragraph of the Manual, discovered in the latest edition of Oppenheim something which suited him much better, so he cut it out and put it in in order to make the path easier. As I say, that is, to a certain extent, guesswork, but it is at least a reasonable guess in view of the latest amendment.

Surely it will be most unfortunate if we condemn people in cases where the defence of superior orders is pleaded by virtue of an amendment to our own Manual, the text of which carries no authority outside this country, a text at variance with the Americans and others, and a change introduced in April, 1944, and brought up now, in a case in which the charge-sheet begins in October, 1942. If so, you have there a very bad example, you are convicting a man on a 1944 text for offences which relate to 1942 or 1943, and a text which is admittedly in conflict both with our reasoned view, extending back for a very long time, and with the views of other nations. I submit it is quite impossible for the Court to accept that revised sentence - it is just one sentence, I think - as an accurate statement of the law, and I submit that the law was correctly stated as Edmunds and Oppenheim stated it in the old edition, which has served for many years. So much for that particular text. It would afford the most legitimate criticism of any decision in which the defence of superior orders was brought up if that text was relied upon in the circumstances which I pointed out.

The JUDGE ADVOCATE - Do you quarrel with the footnote? It refers to the 6th Edition of Oppenheim, which you have referred to, and then it says: "The statement which appeared prior to this amendment" - that is the one which is crossed out - "was based on the 5th Edition of Oppenheim’s International Law, Volume II, at page 454." Then it goes on - I do not know whether you agree or disagree with it - "which was, however, inconsistent with the view of most writers upon the subject, and also with the decision of the German Supreme Court in the case of the Llandovery Castle," and then it gives a reference.

Colonel SMITH - I have a recent article by Lauterpacht on International Law, and what he says is: "The German code of military law has long provided that the subordinate is liable to be punished as an accomplice if, when obeying an order he knows that the order involves a crime or misdemeanour." If he knows that involves crime, but that I do not think is very substantially different from ours. Lauterpacht goes on to say: "According to the law of other States, the immunity of the soldier obeying orders ceases if he knows or ought to have known of the unlawful nature of the order." I have got to quote all those in those in the light of what I said a few minutes ago. In the normal case that conflict would not arise because the order he was bound to obey was itself lawful under German law.

The real problem is slightly different. What is called the defence of "superior orders" is rather a misleading phrase, because the real nature of the defence is that of freedom of the realm, coercion. As you know - and I am sure the learned Judge Advocate will tell you if you have forgotten - there are various English [British] decisions upon this question of the duty of the military to obey orders. They are all referred to in the early chapters of the Manual. I do not think I need refer to them because we are not now administering English law or any other particular law. What I will try and establish is what I conceive to be the underlying principle of the whole thing, and that is most clearly and lucidly, expressed as far as I know in the French Penal Code, that it is not a crime when the accused was either in a state of insanity at the time of the act or when he was being constrained by a force which he was unable to resist. That is the principle of the thing apart from any particular international system of law. Could a man really have done otherwise?

A great deal of the evidence here has been asking whether this woman or this man selected people for a gas chamber. Well, as far as I read it, what happened was that they brought these people on parade at various stages and they were selected by doctors. Put yourself in the position of these people. Could they have done anything else? That is the real question. If you could put it in that way, had the man any real freedom of choice or the woman any real freedom of choice? Supposing this woman had said: "I will not bring these people on parade because I believe they are going to the gas chamber," what would have happened? Well, it would not have saved them; they would have gone to the gas chamber anyhow. What it would have meant for her I can hardly imagine - probably in the gas chamber herself. Surely in a case like that the real point is not all this technical dispute about superior orders. One person holds a view slightly different from that which another holds. We can get away from all that technicality because the real question the Court has got to put to itself is this: Had the accused person in the time and place concerned any real freedom to do anything else than he or she is alleged to have done? That is the real principle, and I think it is correctly stated in Article 64 of the French Penal Code and is the basic principle which should underlie the determination of every case when anything is done in pursuance of orders.

I have already emphasised the immense importance of this case. It is really a historic one, and I know perfectly well that I and my friends beside me here are asking the Court to take a very difficult and very unpopular decision. I know, of course, the Court is as impervious as we are to all outside things wherever they may be, and I do realise that the decision I am asking the Court to take is a difficult one in view of what we all feel about these concentration camps. I need not appeal to the courage of the Court because that, I know, is there, but if you take the longer view of it I feel certain that the decision of the Court to uphold the law as it governs at the time of the act will be one that will go down in history, as an act of courageous upholding of the dignity of the law which has been so severely shaken by the events of these terrible years. That, I think, is the real issue involved apart from the fate of the individuals in this particular case. Upholding the authority of the law, whether it suits us or not at the present moment, whether it pleases the public or not or anybody else, to uphold the dignity of the law as the law, and to say firmly that nobody who comes before a British Court can be convicted unless the Prosecution proves beyond all manner of doubt that be is guilty under the law which governed the act at the time it took place.

That is the essence of my whole case, and every detail is really hung upon that. I can sum up my whole argument upon that. If I can persuade the Court to agree with me upon that fundamental principle, I verily believe that this decision will go down in history as one of those great decisions which from time to time have adorned our legal history, a decision in which great judges have stood fast against all kinds of pressure from the Crown, from politicians, from popular clamour, and decided strictly in accordance with the law.

A Member of the Court - In your view, did the Jews of Poland become full German nationals after the German occupation of Poland?

Colonel SMITH - Yes, they became German nationals but not German citizens. The German statutes in this red book draw a clear distinction between the two and anybody who is in German territory is attested to German nationality, but there is a higher state, there is the German Bürger, and the Bürger has privileges which a Jew or a Pole has not. He has got to be an Aryan German. I think that is made completely Clear by the two Acts of German nationality and German citizenship which are here. The Germans have maintained in substance the old German nationality law of pre-Hitler days, but they have superimposed upon the old German nationality law a Nuremberg law of 1935 which creates this new status of German citizenship, Bürger, which is a privileged class among German, nationals. The book is before the Court and it is all in there.

The Member - Jews in concentration camps had to wear the Star of David all the time, had they not?

Colonel SMITH - I believe that is so.

The Member - Jews were not allowed to hoist the German flag?

Colonel SMITH - No, they were not. There is another law called the Flag Law which says that Jews have no right to fly the German flag. There is a whole bundle of those German Bürger laws in this red book.

Another Member of the Court - Not only the Jews in the camps had to wear the Star of David, but the Jews wandering about the streets had to. Why should they be considered German nationals if they did not do as other German nationals?

Colonel SMITH - The point of being a German national is it makes him subject to all the liabilities of the German but it does not give him the privileges of a citizen. The Jews got the worst of it both ways; they were liable for all the duties that the Germans could impose upon them but they did not get any of the privileges. It was definitely a subject race and that, I think, is very clearly borne out in those two laws. In one case the old German nationality law is continued. That was quite a reasonable law, very much like our own, but then they superimposed on top of that, the citizenship law of 1935, which created the privileged status of Bürger which the Jew could never hope to attain. That was, of course, carried out by dozens of other laws, for example, the law of marriage or the law for the protection of German blood and honour, the Flag Law which I mentioned a moment ago, and dozens of other laws which all hit at the Jews one way or another. But they were still German nationals, and that made it impossible, of course, for any other State to take a friendly interest in them. It was an ingenious and devilish system.

Another Member of the Court - If they were German nationals, why were their papers marked "Stateless"?

Colonel SMITH - I think, if I may say so, the word "Stateless" was only put on those passports in cases where the Jew had left Germany without permission, because then he would carry no identity documents and he would be de-nationalised by German law because there was a law which provided for that. He would be quite literally Stateless and somebody or other who issued him a passport, either in England or in France or in Belgium, would write the word "Stateless" upon it, but if he left Germany without the consent of the German Government, I am pretty sure he would not carry a passport of that kind.

Colonel BACKHOUSE - As a matter of fact that is not so, but I am afraid I cannot give evidence on it any more than Colonel Smith. It was put on by the German authorities when they did allow a Jew to leave.

A Member of the Court - I do not quite see your argument about the definition of a war crime. In these days when we launch total warfare between nations, everybody is involved in the war - we have all agreed to that - and therefore I cannot see your argument about this war crime business.

Colonel SMITH - My argument is simply this that these crimes had nothing to do with the operations of the war, and the best proof of that is that they began in peace time and would have continued after the war was over; but that, if I may say so with respect, is a completely different matter from what I think is in your mind, namely, the distinction between combatant and noncombatant. I quite agree that the circumstances of modern war make it much more difficult to draw the old distinction between combatant and non-combatant in the same way as it was done. It is irrelevant to us whether the perpetrators were combatant or non-combatant.

Another Member of the Court - Was not the making of V weapons another part of the war effort?

Colonel SMITH - It certainly was, but probably the tasks on which the unfortunate people were employed had something to do with the war effort because all work is connected with the war effort, but we are not trying them in connection with the tasks on which they were employed but of ill-treatment of them in the camps, which is entirety another matter.

The Trial (Defence - Legal Argument for the Defence)