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

The Trial (Summing Up)

Fifty-first to Fifty-Third Days - Wednesday, Thursday and Friday, 14th, 15th and 16th November, 1945


The summing-up by the Judge Advocate followed, and occupied two days and part of a third. The Judge, Advocate said:

"May it please the Court. The German State set up the camp of Auschwitz and it now becomes your duty in the light of the evidence you have heard in this court to decide what took place in the war years from 1942 until 1943.

"I think you will be satisfied that to Auschwitz were taken by force innumerable people for the purpose of providing man power and women power for the German military machine, and I think you will be satisfied that among those who were taken, without any excuse, without any right, and against their wishes, were a number of Allied nationals.

"The case for the Prosecution as regards Auschwitz is this. They do not complain or ask you to consider whether the taking of Allied nationals to Auschwitz was right or wrong. What they do say is that when they were there they had no right to be ill-treated or maltreated to an extent that they should die, or that they should suffer physical hardship. It is for you to decide what is the law equally as it is your duty to find the facts. The responsibility of deciding the law is upon you, Sir, and your members, and in arriving at the law you are entitled, of course, to accept the argument of Colonel Smith and those defending officers if it appeals to you. On the other hand, you are entitled to accept my advice as the Judge Advocate of this Court, but I must impress upon you it is for you to find the law.

"As you know, the accused here are being charged with committing a war crime, and you can only deal with a war crime in this court and only with the specific alleged crime in the charge-sheet. You are soldiers and it is your business to know what are the customs and usages of war. It is your duty to know when there is a breach of them.

"You will find in the Royal Warrant, under which this Court is constituted, a definition of a war crime. A war crime means a violation of the laws and usages of war committed during any war in which His Majesty has been or may be engaged at any time since the 2 September, 1939. It is for you, Sir, and your members, to say whether the treatment of these Allied nationals in Auschwitz was or was not a breach of those laws and usages.

"I think I am right in saying that Colonel Smith's argument was largely directed to the gas chambers and to the killing in that respect at Auschwitz, and not really directed so much to the matters of alleged cruelty and maltreatment. I am going to put this issue quite simply to you and then I am going to leave it. If you are satisfied that Allied nationals were taken in the way which has been described to you, and that they were put in a gas chamber because they were of no use to the German Reich, is that or is that not a violation of the customs usages of war? Gentlemen, it seems to me that you will be entitled, and well entitled, to say that it was.

"In regard to the more general question of ill-treatment or mal-treatment, I do not think perhaps the same difficulties arise, because I do not think it is anybody's contention that they were in any way authorised by the German Reich, as it has been suggested might be the case in regard to the gas chambers. If you are satisfied that there was this war crime in the way I have suggested to you, then, of course, you would find the charge-sheet was properly before you.

"There has been raised by Colonel Smith the question of whether this gassing in all the circumstances should be treated as something which the accused could not help. In other words, that they, were being ordered to do it by superior authority, and that they were therefore absolved from any culpability which might arise. Again I am going to deal quite shortly with that matter.

"I have carefully considered what Colonel Smith said and what the defending officers said, and I feel myself that I must advise you that the law as laid down in Volume II of Oppenheim's International Law, 6th Edition, is that which you should follow. I should like to read to you the full extract contained on page 452 rather, than leave it as it is in the Manual of Military Law.

"'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 a war crime, neither does it in principle confer upon the perpetrator immunity from punishment by the injured belligerent. A different view has occasionally been adopted in military manuals and by writers, but it is difficult to regard it as expressing a sound legal principle. 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 law cannot in conditions of war discipline be expected to weigh scrupulously the legal merits of the order received; that rules of warfare are often controversial and an act otherwise amounting to a war crime may have been executed in obedience to orders received as a measure of reprisal. Such circumstances are probably in themselves sufficient to divest the act of a stigma of war crime.' Then I will omit a little portion of the paragraph. It continues: 'However, subject to these qualifications, the question is governed by the major principle that members of the armed forces are bound to obey legal 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 sentiments of humanity.'

"You will probably find the real reason why that attitude is adopted by the writer is contained in the last paragraph: 'To limit liability to the persons responsible for the order may frequently amount in practice to concentrating responsibility on the head of the State whose accountability from the point of view of both international and constitutional law is controversial.'

"That is entirely a matter for you. Do you think when people have been dragged away to Auschwitz and have been put in the military machine and have been gassed and killed without any trial, because they have committed no crime except that of being a Jew or being unwanted by the State, that that is not a clear violation of an unchallenged rule of warfare which outrages the general sense of humanity? It seems to me a very simple point and one which you will have to consider. If you are satisfied that I have correctly directed upon you the law, then, gentlemen, it would be open to you to find that this charge-sheet, both as regards Auschwitz and Belsen, is properly before you, and that you are competent to deal with it on the basis that it is clearly a war crime within the meaning of the word.

"Now I want to remind you that in every trial in a British court there are two main issues which have to be established, and you will forgive me if I perhaps repeat things which are known to you because of your experience and standing in the Army. I feel it is my duty in a case of this gravity to emphasise these points although it may well be they have already occurred to you. The two broad issues that have to be established to your satisfaction beyond all reasonable doubt are, first, has the crime set out in the charge-sheet been established? Secondly, if it has been established, have the accused or any of them before you in the charge-sheet been proved to your satisfaction to have committed it?

"I propose, if I may, to deal very shortly with the first issue. Rightly or wrongly (it is, of course, for you to decide whether or not you accept it) in my view, there is a tremendous general body of evidence going to establish that at Auschwitz the staff responsible for the well-being of internees were taking part in these gassings; that they were taking part in improper, unlawful beating; that they were taking part in Appelle; that they were taking part in the use of savage dogs; that they were overworking and underfeeding the internees; and maybe that these were even experiments imposed upon people, so-called in the interests of science, against their will. I am not suggesting for a moment that the prisoners in the dock necessarily committed what I call that general crime. I will consider that later in detail under the second heading. There is that evidence before you and I must leave it to you to decide whether you accept it or not. As, however, that evidence is before you I am satisfied to say that there is evidence upon which you could find that the war crime set out in the first charge had been committed.

"Equally at Belsen I think you have the same kind of general allegation of ill-treatment or maltreatment, but substituted for the gas chamber you have what the Prosecution allege to be a state of willful or culpable neglect whereby thousands of innocent people lost their lives. Again, rightly or wrongly, on that charge I submit to you that there is a tremendous volume of evidence upon which you could properly find that the charge as set out in the charge-sheet was committed by the staff employed at Belsen who were responsible for the well-being of the internees. If I am right that there is evidence upon which you could so find, then all I have to do is to leave you to consider that later on in closed court. The real difficult issue in this case, and the issue upon which I propose to spend most of my time in an endeavour to assist you, is whether each or any of these accused have been proved by the Prosecution beyond all reasonable doubt to have committed the offense with which they are charged. I feel that you will forgive me if I mention a few matters of general detail. 1 want first of all to deal with the affidavits."

The Judge Advocate then dealt with the affidavits. He said that it would have been preferable to have had the deponents in person before the Court, but that the admission of the affidavits was necessary in war conditions. The safeguard was that the court need only give to them such weight as they saw fit.

Continuing, the Judge Advocate said: "I agree with the defending officers that they are dangerous material. We all know how people will tell you things in the smoke-room and how they would quickly retract them if they had to appear in a court and be cross-examined. I have the greatest faith in cross-examination. I have been brought up to realise what a potent weapon it is in discovering the truth. That, of course, has been denied the defending officers. Consider these affidavits and the way in which they were taken, especially on the question of identity. You need no words from me to realise that you must be most careful in dealing with those affidavits, and I am sure you will find it is difficult to act upon just one or two unless they are supposed in material particular showing that they are really worthy of credence and belief. Again, it has been pointed out to you that sometimes a witness who has appeared here differs materially from his affidavit or that he introduces matters which were not in the affidavit when he made it. Those are all matters which I know you will carefully consider. It is for you to decide, when you come to consider any particular affidavit, whether you are prepared to say that it has any weight or not.

"I will now say a few words. about the witnesses themselves. We all feel, I am sure, very sorry for these unfortunate people who have had to undergo these terrible experiences, and it is only right that I should say that they will receive at your hands every possible consideration when you are considering their evidence. But you have to remember that the law likes to have, if it can get them, what it calls 'credible witnesses.' That is a witness who has no personal interest, who is calm and collected, and who is free from any sort of bias. I do not for one moment wish to suggest that any of these witnesses have come here with a bias, but they have been through terrible things and they have seen and believed, through the actions of some of the people in the dock, that they have lost their fathers or mothers, or whatever relation it may be. Therefore, without any criticism of them, is it not right for you gentlemen to consider carefully whether at times they may not have allowed their feelings to rather elaborate or tint their evidence?"

The Judge Advocate then dealt with the evidence of the accused, and warned the Court that it should be careful in considering that evidence when it was directed against another accused.

The Judge Advocate then proceeded with what he said he considered to be his real duty, and dealt with the evidence in detail. Turning to the second charge relating to Auschwitz, he reminded the Court which of the accused had been arraigned on that charge. Dealing with the Prosecution case, he said:

"The case for the Prosecution, as I understand it, is that at Auschwitz there had grown up a practice or a course of conduct under which internees, including Allied nationals, were being treated in such a way that they were of no value at all as human beings. What the Prosecution ask you is this. If you are satisfied that the people there were being put into gas chambers, that they were of such unimportance and so little value was attached to their human lives, is not it common sense to assume that it is reasonable that when it came to the more daily matters with which they were concerned, there would be some substance for saying that they would be ill-treated because they were of no value? The case for the Prosecution is that at Auschwitz members of the staff agreed together, either tacitly or expressly, that they would ill-treat these internees, and that they would take part in the gassing. It is for you to say, when you come to consider each accused, whether the Prosecution have satisfied you that he or she was concerned in the ill-treatment as a part with others on the staff."

The Judge Advocate then dealt with the case against each accused separately. He reminded the Court of the evidence given for and against each of them, in great detail, and said that it was for the Court to decide these questions, and that if he seemed to express any opinion of his own the Court should ignore it.

Dealing with the responsibility of the accused Kramer for the gas chambers at Auschwitz, the Judge Advocate said:

"Very shortly, I do not think that Kramer is disputing that he has been present on these selections for the gas chamber; sometimes only certain types of them, and I think what he is trying to say is this. 'The gas selections and the gas exterminations were very special. They were really under the charge of the Kommandant at Auschwitz. They really concerned the Political Department, and they really concerned the doctor. I had little or nothing to do with them.'"

"Well, it is for you to say. He was in charge of Birkenau and you may think, that this gassing and extermination was a highly organised business, that it was not dependant upon any one man but required a large amount of people to operate it, and it may well be that the degree of guilt varies as regards responsibility. However, it is for you to say whether it was necessary or not for quite a number of people to take part in operating that machine. Are you satisfied by the Prosecution's case that Kramer was taking part in it in his official capacity? I feel that I need not deal with that aspect of the case many great detail, because it has been put to you so often; but is it possible for you, as reasonable men, to adopt the view that Kramer was not taking an essential part, an official part, such as it was, in sending these unfortunate people to the gas chamber There can be little doubt that Kramer appreciated that this was not a proper thing to do and must have known it was wrong. You have heard what has been said as to that, but I think his defence is, as I put it before, that 'I really had no responsibility for it.' I am saying no more as to Kramer's responsibility or otherwise in regard to the gas chamber."

Dealing with the case of Dr. Klein, the Judge Advocate said that the Defence agreed substantially with the truth of the facts alleged against him by the Prosecution, that he appeared an honest witness, and that his defence was that he did these acts because be was ordered to do so. It was for the Court to consider whether that was a good defence.

Dealing with the question of beating, the Judge Advocate said: "That seems to me an opportune moment to deal with this question of beating. You are not here to punish any man or woman for beating people if you are satisfied that although it was irregular the conditions were such that they justified it. If discipline and order could not be maintained without a reasonable use of force, I am sure you are going to say, whether there had been specific authority to use that force or not, that you are not going to hold that against any of these men or women as a war crime or as a breach of the customs and usages of war. Let us get it quite clear, gentlemen, that what the Prosecution are alleging, and what they have to prove, is the use of force of such a kind that it was savage and brutal, that there was no justification for it at all, and that it existed merely because the person causing it was party to a system of cruelty which was in force in concentration camps. I am not going to take up your time on that. If you accept from any accused that, in circumstances where you might have done it yourself, she hit somebody with her hand, well and good, but there is a vast difference between hitting people with your hand and hitting them with a stick or kicking them, and the Court will no doubt have a very keen eye to discriminate between these various kinds of alleged ill-treatment when they come to consider the case. After all, great damage can be done to people even with the hand if people do it in anger or get into the habit of doing it every day so that gradually more force is put behind it."

Referring again to the affidavits, the Judge Advocate said: "Let me, at this moment take the opportunity of mentioning the affidavits. I am quite prepared to accept that you, Sir, and your members could not be bettered for arriving at a conclusion, by looking and listening to a witness, as to whether they are telling the truth. Whether you are so qualified to do that when you have not the actual words of the witness but merely the Interpreter's idea, and the witness is one whom you do not normally meet, a German, Austrian or Jew, is a matter which no doubt you will turn over in your own mind. As I have said, in many cases of this kind, however admirable the translation may be - and I would like to pay a tribute to the work of the official interpreters here, especially the Polish Sergeant and Captain Forrest - it cannot give exactly what the witness has said. There are innuendos and meanings which can be conveyed.

"Equally, gentlemen, any criticism that may be made of the witnesses in the flesh must become stronger if it applies to an affidavit. Whether it be for the Prosecution or for the Defense, there is ample room for the final English translation which appears before us to contain errors and be different from what was said originally in the far-off distant past when they were taken at Belsen Camp. Now, that is merely unfortunate for the Prosecution if that be so, but it might cause injustice to the Defence, and therefore I advise you that if there is any question about the accuracy of any translation, it is your duty to give the benefit of that, if there is any doubtful meaning, to the accused, and not to the Prosecution."

Having dealt with the evidence on the second (Auschwitz) charge in great detail, in so far as it related to each accused, the Judge Advocate said: "I have been through this evidence and it is for you to sort it out and separate the wheat from the chaff. I suggest that among those accusations there is a considerable amount of chaff, but, be that as it may, there is a considerable volume of evidence which you may be prepared to believe, that she (Starostka) was, at any rate, taking part in some of these gas selections (whatever her motives may be is for you to decide) and that she was beating internees. It is entirely a matter for you, and one upon which I cannot do any more than refer you to the evidence. Are you satisfied that this woman was willing to be an official at this camp, that she liked power, and that she may have used it when it suited, her to benefit the Poles who were interned? Are you satisfied that the accusations made against her by the Prosecution have been made out in such a way that you are prepared to take the view that the evidence is consistent with the fact that when she was on the staff, as a Blockälteste or Lagerälteste of this concentration camp, she was, in violation of the laws and usages of war, concerned with the other members of the staff in the ill-treatment of Allied nationals, either named or unknown, so as to cause their death or to cause physical suffering to them?

"I have completed my survey of the evidence in so far as it relates to the second charge. As I have pointed out to you, the main allegations relate to Allied nationals unknown. Well, gentlemen, I want now to tell you what I think you already know, and that is that you have not got to prove everything in a charge. You have got to prove the substance, and if you are satisfied that there was ill-treatment, substantial ill-treatment causing death or physical suffering, to people whose names the Prosecution were not able to put before you, that would, in my view, allow you to convict the accused; even though you were not satisfied upon any particularly named person, provided you are satisfied that the substance of the charge is made out.

"The case for the Prosecution is that all these people were employed on the staff at Auschwitz, and they ask you to say that all these people knew that a system and a source of conduct was in force, and that in one way or another, in furtherance of that common agreement to run the camp in a brutal way, all those people were taking part in it. They suggest that if you are satisfied they were doing it, then they must, each and every one of them, assume responsibility for what happened. It is again hardly necessary for me to remind you that when you come to consider the question of guilt and responsibility, the strongest case must surely be that of the Kommandant, Kramer, and then down the list according to the positions they held. You are not bound to find anything which the evidence does not establish, but that is the case for the Prosecution. They may have had different responsibilities, but the Prosecution say, looking at it clearly and fairly, is not it an irresistible inference that there was a concerted design at this camp to act in the way that has been proved? They ask you not to treat these individual acts which you may find to be proved merely, as offences committed by themselves, but also as evidence clearly indicating that that particular person was a party willingly in the furtherance of this system.

"That is the second charge and there is nothing I propose to add to it except to remind you that anything I may have said is intended to be entirely impartial, and that you would be well advised in closed court to consider carefully those arguments which have been put before you by the defending officers and the Prosecutor. They are entitled to take what I am not entitled to, namely, a view of the case and put it to you. They will no doubt receive your careful consideration, together with the advice that I have been able to give you. If there is a reasonable doubt you must acquit. You are not bound to convict all of them. You are not bound to convict any. You can, if you like, convict one and acquit another. That, I think, is known to you, and although it is a joint charge, each and every one of these accused is entitled to have your individuals examination of his case in the light of the evidence which appertains to his particular case and no other, subject to this, that if there is a question of system being introduced, the Prosecution may have gone outside the particular facts of the charge in order to found an argument that what was being done was systematic and not merely on one occasion only."

Turning to the first (Belsen) charge, the Judge Advocate reminded the Court of its nature, and which of the accused had been arraigned upon it, and said: "I wish I could say that this was the end of my labours in this long and complicated case, but, as you know, I must now invite your attention while I deal with what I consider to be the more difficult charge: the first charge relating to Belsen. I have said all I propose to say about Starostka, but there are, on the first charge, a large number; in fact, everybody else in the dock except Gura, and I see no way of doing it except by taking the case against each one and putting the evidence before you as I have already done in the case of Auschwitz.

"In this case it is alleged 'that they at Bergen-Belsen, Germany, between 1st October, 1942, and 30th. April, 1945, when members of the staff of Bergen-Belsen Concentration Camp responsible for the well-being of the persons interned there, in violation of the law and usages of war, were together concerned as parties to the ill.-treatment of certain of such persons, causing the deaths of Keith Meyer [Mayor] (a British national), Anna Kis, Sara Kohn (both Hungarian nationals), Heimach Glinovjechy and Maria Konatkevicz (both Polish nationals), and Marcel Freson de Montigny (a French national), Maurice Van Eijnsbergen (a Dutch national), Maurice Van Mevlenaar (a Belgian national), Jan Markowski and Georgej Ferenz (both Polish nationals), Salvatore Verdura (an Italian national), and Therese Klee (a British national of Honduras), Allied nationals, and other Allied nationals whose names are unknown, and physical suffering to other persons interned there, Allied nationals, and particularly to Harold Osmund le Druillenec (a British national), Benec Zuchermann, a female internee named Korperova, a female internee named Hoffman, Luba Rormann, Isa Frydmann (all Polish nationals), and Alexandra Siwidowa, a Russian national, and other Allied nationals whose names are unknown.'

"Let me, very clearly, state that at Belsen the Prosecution say the same sort of thing was happening as regards the causing of physical suffering, but I think the matter of importance and that upon which most time has been spent is the question of the conditions at Belsen. There can be no doubt at all that public opinion all over the world has been roused by this appalling and extraordinary picture, that in a civilised country in the Year of Grace 1945, there could be so many deaths, taking place at once, and that men, women, and children could end up no bigger than emaciated walking skeletons. It is not the fact that one or two were in such a condition What appalls everybody is the magnitude of it, and it is not surprising that all over the world people are saying: 'This cannot be right. We must look into it and somebody must be punished.' Well, that is understandable, but it is not exactly the way in which you will approach this case. Your duty, as I said before, is to satisfy yourselves that a war crime was committed at Belsen in regard to the way the camp was run, and to consider whether, in the light of the evidence, these people are to blame. You are in the position which world opinion is not. You have heard the whole of the facts, and it is in the light of those facts that you will have to decide the fate of these accused in the dock."

The Judge Advocate then proceeded to examine the evidence for and against each accused in great detail. Having dealt with each of them separately, the Judge Advocate turned to the more general aspect of the case, and said: "I think you will appreciate what the case for the Prosecution now is. On a broad basis it is suggested that in Germany in these war years there was this system of concentration camps of which Auschwitz and Belsen were two; that in those camps it was the practice and the habit to treat people, especially the unfortunate Jews, as if they were of no account and had no rights whatsoever; that the staffs of these concentration camps were deliberately taking part in a procedure which took no account of those wretched people's lives; that there was calculated mass murder such as at Auschwitz; that there was calculated disregard of the ordinary duties which fell upon a staff to look after the well-being and health of people at Belsen; that throughout all these camps the staff were made quite clearly to understand that brutalities, ill-treatment, and matters of that kind would not be punished if they took place at the expense of the Jews, and the case for the Prosecution is that there was this common concerted design of the staff to do these horrible and terrible things.

"The Prosecution have brought before you in the dock a large number of persons ranging from Kramer, the Kommandant who was in charge of Auschwitz (Birkenau) and Belsen (and who seems to have been such a loyal and faithful servant to his masters that he was twice decorated by them, a second time in January, 1945, after his sojourn at Auschwitz), down to the Kapo or the functionary who was a tool, and whose reward for his efforts appears to have been to have been to have the right to a bed and an extra bowl of soup. Be that as it may, the Prosecution's case is that they take the view, and they, ask you to consider whether it has been established or not, that all these people in the dock in one way or another were taking part in this common concerted way to ill-treat and in some cases kill, these unfortunate Jews. If you are satisfied of that, they ask you to say that each and every one must bear their responsibility for what happened. Their responsibility must, of course, vary with their position, but the Prosecution say they are still guilty.

"Now, Sir, I know you will carefully consider those matters. You may think that there is no distinction which one should give to people who are concerned in their various duties with the gas chamber. You may think that if these Aufseherinnen were responsible and taking part in a concerted scheme at Belsen to ill-treat these Jews they must take the responsibility for that. On the other hand, if you think these Aufseherinnen, or some of them, were at Belsen doing a good job of work in the kitchens and trying to help as much as they could, that is a factor you will have to consider when considering their guilt or otherwise for the appalling state of affairs that arose at Belsen. That is the issue which you have to consider, and I propose to leave it in your hands to deal with in the light of the evidence."

The Judge Advocate mentioned the length of the trial and said that those responsible for the arraignment of the accused having very properly decided that they should have a fair trial, it was not surprising that it should have taken so long. Particularly was this so having regard to the number of the accused, the necessity for interpretation, cross-examination and representation. In the long view, time was relatively unimportant and it was justice that counted.

In conclusion, the Judge Advocate said: "You are about, in the next few minutes, to go to the peace and quiet of your room to decide the fate of these men and women in the light of the evidence. When you go I would ask you to take with you the words of Lord Sankey in the famous case of Woolmington v. the Director of Public Prosecutions, 1935, A.C. 462, a case that is known throughout the length and breadth of every English court. 'Throughout the Web of the English Criminal Law one golden thread is always to be seen, that it is the duty the prosecution to prove the prisoner's guilt. If at the end of and on the whole of the case there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal no matter what the charge or where the trial.' The principle that the Prosecution must prove the guilt of the prisoner is part of the common law of England, and no attempt to whittle it down can be entertained, and no attempt has been made in this case by the Prosecution to whittle it down.

"If you have a reasonable doubt in regard to any one of these accused, it is your duty to record a finding of not guilty. On the other hand, if the Prosecution have established their case to your satisfaction, and have excluded a reasonable doubt by producing that judicial certainty which excludes such a doubt, then, gentlemen, it would be your duty to convict and to mete out that stern justice which a conviction on charges of this kind not only requires but demands." (The Court adjourned at 1057 to consider their verdict, and reassembled at 1605.)

The Trial (Summing Up)