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

The Trial (Defence Application for Separate Trials)
Captain PHILLIPS - Having regard to your decision on the question of severing the trials, the question of whether the defendants, the accused in this case, are correctly joined together, in our submission depends upon the interpretation which the Court gives to Regulation 8 of the Royal Warrant or the Regulations made under the Royal Warrant. The first three lines of the first paragraph says, "Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men . . ." and then it goes on to provide they may be tried jointly, and so on. Clearly, the Court cannot deal with the matter fully until the case has been tried, so it must mean "Where there is evidence on the face of the matter that the war crimes have been the result of concerted action against a unit or group." In our submission unless the Court is satisfied on prima facie evidence of concerted action there is no reason why it should not hear an application for a separate trial.

The word "concert " means to plan, to premeditate, or to contrive, all of which words clearly imply a certain amount of common intention or common action between various people. What evidence is there available at this stage to the Court that what happened at Belsen and what happened at Auschwitz was the result of planning, contrivance or pre-arrangement? In our submission there is no such evidence; and in support of that contention I would point out that certain of the accused did not arrive at Belsen until April, 1945. The liberation took place on 15th April. How then, can these persons be said to have been responsible for or taken part in a series of war crimes committed at places where they never were, as in the case of Auschwitz, or where they only were for a short period as in Belsen? It is ridiculous to suggest that there is at this, moment, whatever, may be later, available to the Court any evidence to suggest concerted action. It is admitted that the charge sheet alleges that these people, when members of the staff of Belsen and responsible for the well-being of people there, were together concerned and so on as parties to the ill-treatment of certain such persons, but the point I am making is that the Court is entitled to look behind the wording of the charge sheet and at the substance of the matter as it stands and as it can only stand from the available depositions at this moment. If the Court is not satisfied that there is now evidence of concerted action it is entitled to hear from individual accused an application to be tried separately on the grounds either that they will be embarrassed in their defence if tried jointly or on the grounds that they wish to call for their own defence some of these people who stand accused with them here today and who would otherwise not be available as a witness for the Defence except possibly upon cross-examination if that accused gave evidence on his own behalf.

(All the Defending Officers then made applications for separate trials based on Captain Phillips’ argument.)

Colonel BACKHOUSE - The case for the Prosecution is that this is a joint charge of creating bad conditions at Auschwitz in respect of the second charge and at Belsen in respect of the first charge. There are no specific details contained in the charge, but it was ill-treatment which caused the death of a number of people and the cause of suffering to a large number of other people. The case for the Prosecution is quite a definite one; it is that the people concerned are all members of an organization, that they served under a joint leader, and that their action are common - that each one of the persons in the dock has taken part in these cruelties. I ask the Court to say that from the evidence on the depositions there is ample prima facie evidence on which the Court can draw the overwhelming inference that this was a common action by all those people. It cannot be coincidence that at five different cookhouses people are shot; it cannot be coincidence that at Auschwitz people went round hitting people on the head with a large stick and at Belsen people did precisely the same thing. If it is suggested that people were only at Belsen for two days, I would be prepared to show by evidence that those people did the same thing at other places before they got there and that they were taking part in this concerted action of ill-treating those internees. I ask the Court to regard the application as a whole as being one which must fall on the ground that there is ample evidence on the summary that there was concerted action by these people at Auschwitz and at Belsen.

The JUDGE ADVOCATE - There seems to me to be a little more substance and a little more difficulty for the Court in this application than the last one. It arises rather out of the wording of the Royal Warrant. There is no doubt that at this stage of the proceedings there is really no evidence before you upon which you can judge, and I suppose it must have been intended that the documents which are now existing would be put before you - the charge sheet and the abstract. You have to look at those documents, and the question you have to consider is whether or not you think this is an alleged war crime which has been the result of concerted action on the part of a unit or group of persons. If you are satisfied that it is so and treat it as such, then you must refuse this application. If, on the other hand, you say that it does not come within that sub-section, then you may consider the application on its merits. If you decide to reject this application, presumably some of these accused will be giving evidence themselves in their own case, and if that is so there will be an opportunity, no doubt, to ask any questions the Defence may want to put

(The Court close and confer.)

The JUDGE ADVOCATE - Captain Phillips, I will address my remarks to you, but they equally apply to your colleagues who addressed arguments to the Court. The Court have considered the arguments and they feel that these are cases which do not fall within Regulation 8 (2) and that they are therefore bound to comply with the Regulation. That being so, they must refuse the applications. That means that no accused will be tried separately so far as this trial is concerned.

(The accused were asked to plead to the first charge and severally plead Not Guilty.

The accused were duly arraigned upon the second charge and those concerned all plead Not Guilty.)

The Trial (Defence Application for Separate Trials)