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

The Trial (Defence - Closing Speeches)


Captain Phillips said that he wished to adopt Colonel Smith’s argument on International Law, and did not wish to repeat what Colonel Smith had said. There was, however, one point of International Law with which he did wish to deal, and which had not so far been touched upon. That part of Colonel Smith’s argument which dealt with the defence of superior orders had proceeded upon the basis that the old text in the Manual of Military Law was a correct statement of the law and that the recent amendment was incorrect. It might be that the Court would reject that argument, and Captain Phillips wished therefore to deal with the matter on the basis of the law as laid down in the recent amendment to the Manual of Military Law.

That amendment (Cap. XIV, Para. 443) read as follows: -

"The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent. Undoubtedly, a Court confronted with the plea of superior orders adduced in justification of a war crime is bound to take into consideration the fact that obedience to military orders, not obviously unlawful, is the duty of every member of the armed forces and that the latter cannot, in conditions of war discipline, be expected to weigh scrupulously the legal merits of the order received. The question, however, is governed by the major principle that members of the armed forces are bound to obey lawful orders only and that they cannot therefore escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity."

Accepting the law as there laid down, Captain Phillips said it was still for the Prosecution to prove two things: first, that the acts alleged against the accused outraged the general sentiments of humanity, and, secondly, that they violated an unchallenged rule of warfare. There could be no doubt that they outraged the general sentiments of humanity, but what was the unchallenged rule of warfare which they violated? In his submission, there was no such rule. The only rule to which the Prosecution could point was that contained in paragraph 383 of Chapter XIV of the Manual of Military Law, which dealt with the duty of an occupying Power towards the inhabitants of occupied territories. But, as Colonel Smith had pointed out, that was a rule the breach of which gave rise to State, and not to individual, responsibility and punishment.

Continuing, Captain Phillips argued that originally warfare between States was not regulated in any way by rules; but that as a result of the growth of chivalry and various practical considerations, rules and usages came into being. At first, these rules were no more than general standards of conduct or customs which had no binding effect upon the belligerents; but as time went on and these customs continued to be accepted and obeyed, they gradually hardened into unchallenged rules of warfare; thus, at any time in the history of International Law there were two bodies of law: on the one hand, customs or rules of practice which varied in their degree of authority, and, on the other, unchallenged rules of warfare accepted on all sides. Captain Phillips submitted that the rules relied upon by the Prosecution in this case belonged to the first body and that they were not unchallenged rules. If that were the case, then even upon the basis of the law as laid down in the amendment the plea of "Superior Orders" offered a good defence.

Turning to the case against his accused, Captain Phillips said that the Prosecution must prove one of two things: either that the accused directly and with their own hands killed or injured an Allied national at Belsen, or that they were indirectly responsible for the death, injury or suffering of an Allied national at Belsen. So far as the first alternative went, even accepting the Prosecution’s evidence, there was no evidence of the direct personal killing or injury of an Allied national by his accused. If the Prosecution were to succeed, therefore, it must be upon the second alternative. They must show not only that the accused were at Belsen, but that in some way they were responsible for the conditions there. It was not enough to say that Belsen was a war crime, his accused were at Belsen, therefore they were guilty.

Captain Phillips said that he wished to deal with certain aspects of the evidence in general before turning to the individual accused. So far as the Prosecution witnesses went, he asked the Court on the whole to accept the evidence of those who spoke of general conditions, such as Brigadier Glyn Hughes, Mr. Le Druillenec, Dr. Bendel and Dr. Leo, and to contrast their evidence with those, such as Dr. Bimko, who spoke against individual accused. He suggested that while the former were usually liable the latter were almost universally unreliable. He also wished to add a word to what had already been said about the affidavits, because the evidence against three of his accused was affidavit evidence only, and no live witness had spoken against them. He would say nothing about the discrepancies between the affidavits and the live witnesses, for that had been adequately dealt with. But he wished to mention certain points. First, the whole of the inmates of Belsen were invited to make accusations, so that one started with a deponent who had a natural, but considerable, animus against the accused. Secondly, the affidavits as then before the Court were prepared by an officer from statements taken by other people. Thirdly, the accused were not present when the affidavits were sworn, and therefore identification depended upon photographs. fourthly, the series of photographs used for this purpose was practically confined to those who had been officials at Belsen; consequently a deponent identifying one would inevitably pick a winner every time; he would be bound to pick out somebody who had been at Belsen, and that fact would lend some apparent colour to his story. This method should be contrasted with the normal procedure of an identification parade. Fifthly, it was not clear from the evidence that great care had been taken to ensure that the key of names was correct. Finally, Captain Phillips reminded the Court that by Regulation 8 they should give such weight to each affidavit as they thought fit. He suggested that they should be reluctant to rely upon any affidavit which was not corroborated by an oral witness.

Captain Phillips then dealt with each accused separately, starting with Charlotte Klein. The only evidence against her was the affidavit of Luba Triszinska, who said that she was responsible for deaths by beating and had also beaten internees for stealing bread. It was hard to conceive of a more vague piece of evidence than that; so vague as to be almost impossible to controvert. In the circumstances the Court should look at the evidence of the accused herself and see what she said. She admitted that she was in charge of the bread Kommando, and that internees often stole bread, and that she hit them to stop them. The Court might well think that she would have trouble taking round the bread in a starving camp, arid that what she had said was true. Her story was confirmed by Unterscharführer Müller, who said that he had had occasion to reprimand her for being too familiar with members of her Kommando.

Finally, there was one important point in her favour. Her job of taking bread around the camp was one of the most public that could be imagined in a starving camp; it was a job that took her into every corner of the camp, Yet, not a single witness had come forward to speak against her. Surely the inference was obvious, namely, that she had behaved reasonably well.

The next accused was Herta Bothe. In her case also the evidence was that of the affidavits alone. The first of importance was that of Wilhelm Grunwald, who accused Bothe of shooting two prisoners with her pistol. So far as the affidavit went, the Court should note that the deponent was only aged 17. Counsel submitted that this was relevant in assessing his worth. So far as the incident itself was concerned, Bothe denied that she had ever had a pistol; in this she was corroborated by Charlotte Klein and Gertrud Rheinholdt. Nor had any Prosecution witness alleged that she had a pistol. The affidavit provided no internal evidence by which its truth might be judged; like many others, it was so vague and tendentious that it should be ignored. Next was the affidavit of Sala Schifferman, aged 18, who accused Bothe of beating to death a Hungarian called Eva beside No. 4 Kitchen in January or February, 1945. The Prosecution, in cross-examination, put it to Bothe that she worked in the wood yard beside No. 4 Kitchen. It was true that she did work there. But if the Court were to be asked to accept the location of the alleged offence, then they should accept the date also. And Bothe had not worked in the wood yard until the 10th or 11th of March. Counsel suggested that either the incident was untrue, or so exaggerated as to be untrue, or that, if it happened, it did not happen to this accused. Luba Triszinska named Bothe as severely beating internees and thereby causing their ultimate deaths, and added that she was in charge of the vegetables. The first comment to make about this affidavit was that Bothe was never in charge of the vegetables. Both she, Ehlert and Lothe had denied it; nor had any Prosecution witness alleged it. Thus the affidavit had proved erroneous on the only point where it was possible to check it. The accused Lohbauer, in her statement, had said that she had seen Bothe ill-treating prisoners, and that she should be punished. In her evidence Lohbauer had partially withdrawn this statement, and all it then amounted to, submitted Counsel, was that she had seen Bothe slapping prisoners. Finally, there was the affidavit of Helen Hammermasch, who said that she had seen Bothe beat a naked woman in the bath-house with a rubber truncheon. But when Hammermasch gave evidence herself she failed to identify Bothe at all. The affidavit was important, apart from the incident of the bath-house, because it showed how weak was all the affidavit evidence. Just as Hammermasch failed to identify Bothe face to face, so very likely would Sala Schifferman and Luba Triszinska. No Prosecution witness who had come to court, continued Counsel, had a word to say against Bothe; and yet her duties had been of a public character. Surely the inference must be clear, and she had done nothing very bad?

Captain Phillips then dealt with the case of Frieda Walter and said that the evidence against her was all affidavit evidence. First was that of Alexandra Siwidowa, which alleged that Walter had beaten the deponent and others when she was in charge of the garden Kommando. There was no dispute that the accused was in charge of this Kommando and she admitted having struck the deponent and others. Counsel submitted that it was a question of degree; and that Walter had used no more force than was reasonably necessary under the circumstances, in order to stop the stealing that was going on. Next was the affidavit of Edith Trieger, who said that Walter, when supervisor of No. 2 Kitchen used to beat women practically every day. That suggested that must have been in the kitchen for some time. Yet it was not disputed that Walter was only in that kitchen on two days, namely 14th and 15th April. The affidavit of Luba Triszinska contained accusations against Walter similar to those made against others of his accused, the same observations applied in that case. Apart from the statement of the accused Ehlert that she had heard that Walter had often beaten, there was no other evidence against her. Only one Prosecution witness identified Walter; that was the witness Zylberdukaten, who had nothing to say against her. As in the case of others of his accused, Counsel continued, Walter’s job was a very public and prominent one, and if she had done all the things the affidavits suggested, it was strange that no one had come forward in person to accuse her.

Captain Phillips then turned to the last of his accused, Irene Haschke who was the only one who had been accused by an oral witness. Hanka Rozenwayg said that Haschke had pushed a woman into one of the concrete ponds beside Kitchen No. 1, and that the woman had drowned. So far as this allegation went, the first point to note was that Haschke never worked in No. 1 Kitchen. It was difficult to follow the witness’s description on the plan. There was no pond near No. 3 Kitchen, which was the one in which Haschke did work. Counsel submitted, therefore, that if this incident did occur it must have been at No. 1 Kitchen, but that it had not occurred to Haschke. Next was the witness Ilona Stein, who accused Haschke of beating with a variety of implements. There was no dispute about the kitchen here, and the incidents probably related to that accused. It was a question of the degree of beating. The witness had said that on one occasion she had run away and that the accused "left her arm in the air." That, continued Counsel, was a very graphic way of describing what in his submission had really happened, namely that the accused had not been attempting to beat these people at all, but had merely been trying to drive them away from the cookhouse. It was admitted that the cookhouse was often surrounded by a throng of people trying to get food, and in the circumstances it was not unnatural that the accused should occasionally sally forth to drive them away. The story of the witness was basically true, but grossly exaggerated as to the degree of force and the implements used. That concluded the oral witnesses, but there were in addition the affidavits of Katherine Neiger and Luba Triszinska, and the statement of Ehlert. These did not add anything to what the witnesses had said.

Having dealt with the evidence against each of his four, accused Captain Phillips said that there were certain observations which he wished to make which applied to them all. In the first place, he asked the Court to take the view that those accused, who had arrived at Belsen late in February, 1945, when conditions were already chaotic, had used no more force than was necessary for the discharge of their duties; that they had not been guilty of cruel and sadistic beatings, but had only done what they had done to enable them to distribute the bread, the food, the wood and so forth.

But the matter did not rest there, for the Court was being asked to say that apart from their personal acts those accused were responsible for the conditions at Belsen. It became necessary, therefore, to examine some of the evidence on that point. Brigadier Glyn Hughes had said that it would have taken from two to three months for the conditions discovered at the liberation - 15th April - to have developed, assuming that the internees were robust on arrival; that he had at his disposal 54 officers and 307 other ranks of medical units, and that those numbers were necessary to deal with conditions as he found them. It was therefore material, continued Counsel, to enquire how long those conditions had existed. The important date for that purpose was the end of February, when his accused had arrived at Belsen. According to the affidavit of Wiesner, of the prisoners arriving in the last three months, about half were dead in the trucks that brought them. According to the Prosecution witness, Dr. Leo, as early as the beginning of February about one-fifth of the prisoners were dead on arrival, while the remainder were in a weak condition. In other words, continued Counsel, at the date of the arrival of his accused, the camp was already full of dead and dying, typhus was rife and conditions were chaotic. Yet those were the conditions for which it was said that his accused must bear responsibility. It was with this as a background that he asked the Court to determine the responsibility of the accused.

So far as the Regulations, and particularly Regulation 8 (2), were concerned, he agreed with what had been said by his friends, and only wished to add this: those Regulations were procedural only, and they did not (nor could they) alter the substantive law. The Court in determining the guilt or innocence of the accused should consider the general conditions, and then consider the share in the responsibility therefore of each accused. Captain Phillips suggested that the proper test was the degree of control which they were able to exercise over those conditions, and that there should be no responsibility without control. He reminded the Court of the work of his accused; Charlotte Klein was in charge of bread, Frieda Walter was in charge of the garden, Irene Haschke was in partial charge of a cookhouse, and Herta Bothe was in charge of the wood yard. What control could any of these have had over conditions which existed when they arrived at the camp? They were all small people, and it was the duty of the Court to confine the punishment to the actual offenders.

In conclusion, Captain Phillips said that as it was easy in such a complicated case for the issues to become fogged, he wished to remind Court of the points upon which they must, in his submission, be satisfied before they convicted any of the accused: first, that what had happened at Belsen was contrary to the Laws and Usages of War; secondly, that the defence put forward by Colonel Smith was not open to the accused - namely, the conflict between German and International Law, and the defence of superior orders; thirdly, that the accused had personally killed or caused injury or suffering to an Allied national; or fourthly that they were in some way responsible for the general conditions at Belsen. Unless the Court were satisfied on those points, the accused were entitled to be acquitted.

The Trial (Defence - Closing Speeches)