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

The Trial (Request for Charges to be Heard Separately)
Captain PHILLIPS - I wish to make an application on the subject of separate trials under Rule of Procedure 32 that the defendants are incorrectly joined in both charges, and, secondly, that the two charges are incorrectly joined at the one trial. I would like to divide what I have to say into two separate parts, and deal, first of all, with the joinder in this case of the two charges, charges one and two, which deal respectively with what happened at Belsen and what happened at Auschwitz. In our submission the joinder of these two charges is bad and unaffected by Regulation 8 (2) made under the Royal Warrant which says, "in any such case they may be charged and tried jointly in respect of any such war crime and no application by any of them to be tried separately shall be allowed by the Court." The submission of the Defence here is that this is not an application to be tried separately, but is an application that the two charges, one and two, Belsen and Auschwitz, should be heard separately, preferably by separate Courts.

In our submission - and I am dealing at the moment with the people who are concerned only in the first charge - there are really two types of people in this case, those charged on the first charge and those charged on both charges. From the point of view of those who feature only in the first charge, the Belsen charge, it would appear wrong that they should be tried on that charge at the same time as the other people who are being tried on both charges. The man who is charged with having been at Belsen only will, during, the course of the trial, hear evidence given of what happened at Auschwitz, which can in no possible way, be evidence against him; in other words, he is going to be prejudiced straight away. Suppose you had charged A with obtaining money by false pretences, and B is also charged with obtaining money by false pretences, both in the same town and on the same day but no connection between them, no joint action, it would, in our submission, be wrong that those two people should be tried together, at the same time on those two separate offences, inasmuch as in the eyes of the jury or Court the evidence against B would tend to prejudice A, and vice versa. We therefore submit that here there is no justification in joining the two charges, Belsen and Auschwitz, in the case of those who were only at Belsen and were never at Auschwitz, because between the two there is no nexus or connection at all; they merely have this in common, that they were both concentration camps administered by Germans. We say that there is no connection between the two charges other than the slight similarity that they both relate to matters in concentration camps, and my point is that in the absence of special provision that would be obviously no justification for the two charges to be joined together. The question therefore arises: is there in this case any special provision which does justify what would otherwise be improper? In our submission the answer is that there are only two possible heads under which this may be justified, Regulation 8 and Rule of Procedure 16.

Rule of Procedure 16, which provides for joint trials, reads as follows: "Any number of accused persons may be charged jointly and tried together for an offence alleged to have been committed by them collectively; where so charged any one or more of such persons may at the same time be charged and tried for any other offence alleged to have been committed by him or them individually or collectively, provided that all the said offences are founded on the same facts or are part of a series of offences of the same or a similar character." In our submission that rule does not in this case justify a joinder of the two charges, and we say that while there is a certain similarity between the subject matter of the two charges there is between them nothing in the nature of a series; all they have in common is this slight surface similarity of them both being concentration camps administered by Germans. These accused on whose behalf I am speaking at the moment were never at Auschwitz, they never had any connection with the place at all, and if they are to be tried at the same time as the others who were at Auschwitz they will undeniably be prejudiced by the volume of evidence about Auschwitz which will be admitted and which will be irrelevant in their case.

Regulation 8 says, "Where there is evidence that the war crime has been the result of concerted action upon the part of a unit or group of men . . . ." That does imply that there is such prima facie evidence arising out of the summary of evidence or, its equivalent as will justify the Court in coming to the conclusion that there has been a unit or group and that there has been concerted action. Now these accused never were at Auschwitz. How then can they be said to have formed part of a unit or group, or to have taken part in any concerted action when, in fact, they were never there? But that is rather by the way, because the final paragraph to that rule reads, "and they maybe charged and tried jointly in respect of any such war crime and no application by any of them to be tried separately shall be allowed by the Court." This is not an application for them to be tried separately - I will make that application later. This is an application that the two charges should be heard separately.

I now wish to make the same application on behalf of those who feature in both charges. Of course, it will be sufficient, if you find on either ground, because that will have the same effect of separating the two charges, but I think it proper to indicate the grounds on which those charged on both charges make the same application. They rely on Rule of Procedure 108 which reads, "The statement of offence may be made briefly in any language sufficient to describe or disclose a violation of the Laws and Usages of War" - this is as amended by the Regulations - "No formal charge sheet shall be necessary, but the convening officer may nevertheless direct a separate trial on two or more charges preferred against an accused; or the accused, before pleading, may apply to be tried separately on any one or more of such charges on the ground that he will be embarrassed in his defence if not so tried separately, and the Court shall accede to his application unless they think it to be unreasonable." That is the ground on which those concerned in both charges now apply for the charges to be dealt with separately. I shall indicate briefly the reasons why they are going to be embarrassed in this case. Of the bulk of the evidence contained in the abstract which has been provided, at least 50 per cent, if not more, relates to Auschwitz. Therefore a man who is standing his trial on allegations concerning what he did at Belsen is surely to be prejudiced when the greater volume of the evidence heard by the Court is going to be about what he is alleged to have done, and principally what others are alleged to have done, in Auschwitz. However fair-minded the Court my be it is an effort which it is almost impossible for them to make, to keep in two water-tight compartments these two bodies of evidence and to prevent themselves from being prejudiced on one charge by the evidence on another.

Finally, they will be embarrassed in their defence because the conditions at the two camps were vastly different. At Auschwitz there is alleged to have been one of these gas chambers which operated on a very considerable scale. There is no such allegation in respect of Belsen. I do not know what the Prosecution's case will be, but if they are going to say that the man in charge of No. 2 Cookhouse is guilty because he knew these people were going into the furnace, that is obviously going to be a very important point for the Defence. The fact that the conditions at the two camps were extremely different, and the application of what may prove to be the law to the facts in those two different cases, is going to make it very difficult for the Court and for the Defence to separate the one from the other. The accused, all of them, object to the joinder of the two charges. Those who appear in the first charge only object on the grounds that the joinder does not comply with Rule of Procedure 16. Those who feature in both charges object on the grounds that the joinder does not comply with Rule of Procedure 108. Finally, both classes say that Regulation 8 of the Royal Warrant has no application to this part of this case, that is, the joinder of the charges.

The JUDGE ADVOCATE - Do you not agree that the Prosecution are setting out in the first charge a sort of war crime committed by a group of persons at Belsen, and then are putting a second charge alleging another sort of group war crime at Auschwitz?

Captain PHILLIPS - Yes. I say that the first charge should be tried and disposed of, and at a later date charge two should be tried and disposed of.

Colonel BACKHOUSE - Dealing with the question of whether the two charges should be taken together or separately, my friend suggests that they do not come within RP 16. I am afraid I entirely disagree. We disagree, of course, not on law but on facts. My friend says these are not similar offences, and that they are two quite different camps and quite different charges. On the contrary, the charges are identical, word for word. The only difference is in the victims, and in many cases there is no difference in the victims because you will find that every one of the witnesses called in respect of Auschwitz was also, in fact, an inmate of Belsen at a later stage. The allegation of the Prosecution is that these two cases are a continuation of a series in so far as those persons who were at Auschwitz are concerned. Each of the persons, with the exception of Starostka, came from Auschwitz to Belsen. The allegation of the Prosecution is that, first of all at Auschwitz they ill-treated a body of persons and that they then went to Belsen where they continued with the ill-treatment of that body of persons. One offence is precisely the same as the other. The individual methods of ill-treatment sometimes varied because, in the submission of the Prosecution, every known method of ill-treatment was used at one or other of these camps. The same people were acting as concentration camp guards in one camp and went to the other and acted as concentration camp guards there. They ill-treated literally the same people at Auschwitz as they did at Belsen. Of course, at Belsen they found a lot of new people as well. All the witnesses with regard to Auschwitz were found at Belsen.

These cases are part of a series of similar offences and are properly joined together, on the same charge sheet. I will say that if the Court decides to separate these two charges I will apply to give the evidence in respect of Auschwitz on the Belsen charge. Some of the accused have indicated their defence in relation to Belsen as virtually one of accident. Some have in fact said, "We realise that conditions here were appalling, but we could not help it." I should therefore ask, if necessary, to give evidence that the conditions which these people created somewhere else were equally appalling and that they merely carried on with a series of similar offences. It is my submission that these two charges should be tried together.

With regard to the question of the joint trial of individual persons, I want to make it quite clear from the outset that the Prosecution in this case will allege that this is a joint and collective offence by a group of people. Individual atrocities committed by individual persons are put forward to show that they were taking part in and acquiescing in the system which a group were carrying on. They were acting in common under a commanding officer, Kramer, who was the Kommandant of that camp. All the accused were either members of his staff or internees who had been given authority by him. I say they are definitely a group and indeed, in the sense of this rule, a unit. As such, in respect of each charge the Court cannot take note of an application to try persons named in that particular charge separately. I agree that does not apply to the question of splitting the charges, which is a separate application. I say they should not be split; they are plainly part of a series of similar cases and that they come directly within the amendment which was specially made for this purpose in cases of this nature.

The JUDGE ADVOCATE - What about the one accused who does not seem to have taken part in the system because she was not there?

Colonel BACKHOUSE - That particular accused was, of course, a member of the group at Auschwitz and therefore must be tried with the other members of the group there. She is a member of the Auschwitz group who did not come on, as far as I know, to Belsen. She must be tried with the other Auschwitz people and it clearly, cannot embarrass her to hear about Belsen.

Captain PHILLIPS - In my submission the Prosecutor has dealt almost exclusively from the point of view of the victims. It is not denied that many of the people who were at Belsen had previously been at Auschwitz, but what of it? What we are concerned with here is the accused, many of whom never were at Auschwitz. What connection, therefore, can they have with what has been suggested by the Prosecutor to be a series of cases in which they all had some common interest? Not only were certain of the accused never at Auschwitz, but certain of them did not even arrive in Belsen until February, and some of them even as late as April of this year. Yet those are the people who it is said may fitly be tried as having taken part in what is called a series of offences. I do not deny for one moment that Auschwitz and Belsen were similar; my point is that they could not properly be said to have formed part of a series.

The JUDGE ADVOCATE - May it please the Court. The application by the Defence is that it would not be right, that it would bee embarrassing and improper, if you were to take the whole of the evidence together which relates to these two charges, and if you were to try the accused upon these two charges at one and the same time. There is an application to sever these charges, that is to say, that this Court should first of all deal with the first charge and that thereafter this or a different Court should proceed to deal with the second charge. This is a matter entirely for you.

(The Court close and confer.)

The JUDGE ADVOCATE - Captain Phillips, the Court ask me to say that they are indebted to you for a very clear and cogent argument and they have understood it very thoroughly. They have considered it, but over-rule this application and they will not sever the first charge from the second. That being so, the Court will listen to anything more you want to say.

The Trial (Request for Charges to be Heard Separately)