2 Elul 5721 (14 August 1961)

Presiding Judge: I declare the one hundred and fourteenth Session of the trial open.

Attorney General: May it please the Court, in pursuance of the questions which arose at the end of the last session, I have prepared a detailed list of precedents referring to our law of conspiracy. Strictly speaking, this is only a somewhat more detailed compilation of legal material which is already in your possession. I have handed it to Counsel for the Defence, after it was prepared in a language with which he is familiar. I should be grateful to the Court if the Court would attach this list to the legal material we have submitted.

Presiding Judge: Thank you. Dr. Servatius, if you please.

Dr. Servatius: Your Honour, the Presiding Judge, I have completed the written summing-up, and the Attorney General has received it for perusal - the last part, it is true, only this morning, as technically it had not been possible to complete it earlier. If he thinks it necessary to reply to this summing-up, I shall raise no objection, provided that a short reply can be given thereafter, as agreed previously. Personally, I think that a reply on my part will not be necessary. Should legal questions arise, the Court will have to decide them.

I respectfully submit to the Court this final summing-up which does not yet include the enclosures; I shall file them during the break.

Presiding Judge: Yes. As to the reply or the possibility of further comments, we shall deal with this point at the end of the summing-up of Counsel for the Defence. Could you submit another two copies of these written submissions?

Dr. Servatius: Yes, Your Honour, but I can do so only during the break; the typing is not yet finished.

Presiding Judge: I mark the written submissions with my initials. Yes, Dr. Servatius, we shall now hear the oral summing-up for the Defence.

Dr. Servatius: Your Honour, the Presiding Judge, Members of the Court.

Were the comments of the Attorney General on the intent and the character of the Accused true, this would be a cause for delight and satisfaction in some circles. This portrayal would become the foundation for a monument which the enemies of the Jews throughout the world could put up for the Accused. But this foundation fortunately consists only of grains of sand which have been assembled.

Delight ought to be experienced also by Hitler's erstwhile followers: Now we know it! The Fuehrer had not given any order to commit murder. Like King John, they could say:

It is the curse of kings to be attended by slaves: they took a caprice, a hint, for an order, and fully committed the bloody deed.* {*King John Act IV, Scene II. The latter part of this quotation is Dr. Servatius' free rendering of the original}

The Accused has to answer fifteen Counts of the indictment. In the latter Counts of the indictment - Counts 13 to 15 - the Accused is charged with having been a member of organizations which have been declared criminal by the judgment of the International Military Tribunal at Nuremberg - SS, SD and Gestapo. The decision of the International Military Tribunal does not contain any penalty. The decision is the result of the exercise of legislative powers vested in the tribunal. The judgment declares the criminal character of the organizations, as if it were a legislator.

However, this declaration is limited in space and in time, and confined to certain specified offences. The findings are based merely upon the acts, for the commission of which one of the main accused was convicted by the tribunal. Therefore, their effect has been restricted to the scope of application of the London Charter. The effect of the declaration was restricted to acts amounting to crimes against peace, or to war crimes, or to crimes against humanity connected therewith.

Presiding Judge: Dr. Servatius, you may, of course, sit down during the translation, according to the practice in this Court.

Dr. Servatius: The Nazis and Nazi Collaborators (Punishment) Law has adopted the idea of a criminal organization as an independent term. The Prosecution has, therefore, had to prove in this trial that these organizations were criminal organizations, and to what extent they had been so. This has not been done. The criminal nature of the organizations is denied.

The organizations were misused by the political leadership. The members of the organizations do not bear any collective responsibility. This was taken into account by the International Military Tribunal itself. It established as a condition for punishment under Control Council Law No. 10- which had already been enacted by the Occupying Powers already to the verdict - that the criminal intent of the individual member of the organizations be proved. According to the political circumstances prevailing at that time, this could be done only in the form of a recommendation to the Occupying Powers. Actually, the courts have accepted this recommendation.

Section 3 of the Nazis and Nazi Collaborators (Punishment) Law does not require proof of criminal intent. It provides for punishment of membership in the aforesaid organizations as such. Making acts punishable with the deprivation of liberty, without the necessity for proof of criminal intent, is contrary to basic conceptions adopted by civilized nations. It is hardly consistent with ideologies based upon the rule of law.

The Court is not empowered to supplement the law. It cannot add the requirement of proof of criminal intent. It lacks the power required to that effect under constitutional law. It should not be permitted to prosecute a class of persons without having to prove criminal intent, just because it appears to the legislator to be suitable. This is precisely what Hitler, without any legal authority, had undertaken to do in respect of the Jews. Without troubling the legal profession, he treated them as a criminal organization.

It must not be permitted to promote this principle now, under the cloak of a legislative instrument, to the rank of a rule of law. No class or organization should be made subject to collective punishment. Guilt is a personal attribute. It is the one and only basis of responsibility. In these proceedings, the Accused can be charged in his capacity as an individual, and his criminal culpability can be examined. The Accused should not be convicted, therefore, under Counts 13 to 15.

Counts 9 to 12 are distinguished by special features. They refer to acts which the Accused is alleged to have committed abroad against foreigners. This concerns Poles, Slovenes, Gypsies and the children of Lidice.

The sovereign power of the State of Israel was established, in respect of the offences enumerated in the Nazis and Nazi Collaborators (Punishment) Law, only by that law. It is in the discretion of a state, as a matter of principle, to extend the scope of its jurisdiction in criminal matters.

Normally, this is not done in order to catch small fry, but to aim at political opponents. This is a principle which was adopted by National Socialist Germany in the form of the new Article 4 of the German Criminal Code. However, such an extension of the scope of criminal jurisdiction must be carried out within the limits of binding international law, and according to international law at least one point of reference has to exist between the state claiming criminal jurisdiction and the offender. In this respect, crimes against the State of Israel or its citizens have to be ruled out as a point of reference, for at the time of the commission of the offence, the State of Israel did not yet exist.

However, it can also be sufficient that the offender has his abode within the territory of the state. The connecting link to the criminal jurisdiction will be, in that case, the duty of allegiance which is owed by everybody resident in the country. But even this fleeting point of reference does not exist in this case. The offences committed against foreigners - Counts 9 to 12 - have, therefore, to be abandoned.

However, the charges proffered in that respect have to be refuted, for they might be relevant as circumstantial evidence in respect of other charges.

The Ninth Count refers to the deportation of half a million Poles during the years 1940-1942. However, the question at issue here is not deportation - as a measure of punishment or coercion - to concentration camps, but a mass- resettlement connected with provision of work and mobilization of labour. Such a resettlement of the civilian population has not been expressly prohibited by the Hague Convention as regards the Laws and Customs of War on Land. It can be necessary and permitted where special circumstances require regulation.

In the case under discussion, the resettlement was carried out within the framework of an exchange of populations. It was connected with the unification and return for resettlement of German ethnic groups. Under the slogan "Home to the Reich," millions of Germans living abroad were moved to territories under German sovereignty, and other ethnic groups were exchanged. The practice of the states has confirmed such resettlements as permissible, even where the resettlement resulted in the forcible removal of the inhabitants without making provision for alternative homes, and the expellees were abandoned to their fate. I refer to the evacuation of Alsace-Lorraine after the First World War; I refer to the expulsion of the Germans from Czechoslovakia after the Second World War. To my knowledge, even the State of Israel has faced similar problems and has had to find solutions. The misery and suffering which were inflicted by such measures to the politically weaker party were the same in all these cases; one had to put up with them.

The Accused was not responsible either for the planning or for the carrying out of resettlement. Planning took place at the highest level; the plans were carried out locally by the commissions for resettlement. Only after lack of experience and unsuitable measures had produced disastrous results regarding transportation, the Accused was called upon. He had to remove the difficulties which had arisen in carrying out the transportations, and this he did. As to further details, I refer to the closing brief.

The Tenth Count refers to the resettlement of Slovenes in 1941. What has just been stated in respect of the resettlement of Poles applies to them, too. The resettlement was carried out upon Hitler's command; it was ordered by Himmler in his capacity as Commissioner for the Strengthening of German Folkdom. The Accused had not been entrusted with the selection of those to be resettled, nor with their seizure or their treatment. Manpower and material resources required to that end were not available. The Accused was ordered by Heydrich to take care of the final implementation by way of transportation. The acts of resettlement were carried out in a purposeful, orderly fashion. As to the charge that, in carrying out these resettlements, crimes against humanity were committed, the Prosecution has not adduced any evidence.

In the Eleventh Count of the indictment, it is alleged that, during the entire period of the War, the Accused seized, deported and exterminated Gypsies. However, it has not been proved that the Accused had planned such measures, nor that he had ordered them to be taken. The arrest of the Gypsies and their transfer to concentration camps was not carried out by Department IV of the Head Office for Reich Security, but by Department V of the Police (Criminal Investigations) Office of the Reich.

The Twelfth Count: The children of Lidice. We have to examine the responsibility of the Accused for the fate of these children. The collection and the transport of the children from Prague to Litzmannstadt was carried out by the Prague branch of the Central Office for Race and Resettlement, upon the order of the Commander of the Security Police and the SD. The highest level in the Central Office for Race and Resettlement was Section III B 4 of the Head Office for Reich Security in Berlin, headed by Standartenfuehrer Dr. Ehlich. In this affair, the name of the Accused is not mentioned at all.

It is considered to be circumstantial evidence of his involvement that the head of the Central Office for Migration in Litzmannstadt, Obersturmbannfuehrer Krumey, called upon the Accused's Section regarding further steps to be taken in respect of the children. He did not receive a reply from there, but afterwards informed the competent Department III - to which he had likewise applied ealier - that he had approached Section IVB4 about this matter, on the assumption that special treatment had been provided for the children. What was the meaning which could have been attributed in 1942 to the term "special treatment," can remain an open question. It should be emphasized that what was expected was not "special treatment," but some special treatment. The author of the letter, the witness Krumey, declares he had had in mind some special treatment, as the police had not been prepared for the reception of children.

The same considerations apply to the return transport - to the communication made by the Commander of the Security Police and the SD in Prague on the evening of 12 June 1942, which originated in an enquiry by telephone. In this communication it is stated:"No special care is required." Here again particular stress ought to be placed on the word "special." It is reasonable to assume that special assistance for the accommodation of the children had been called for. This request had then been turned down by the telex-communication. According to this, the children were to be transported to the camp for Poles. Actually, the children had been taken care of; they were in the care of the camp in Litzmannstadt for approximately three weeks.

What happened to the children eventually has not been elucidated. The journalistic description put forward by the Prosecution, is contradicted by the testimony of the witness Freiberg, who at the end of the War still saw thirty children being taken care of at a place called Pushka. This is the same place which is named by the journalist as one of the places of abode of the children. Moreover, it is unlikely that it had been intended to kill the children. Had it been intended to kill them, this could have been carried out at once in Lidice. In this matter, an intervention of the Accused has not been proved at all. As to details, I refer to the closing brief.

Presiding Judge: Dr. Servatius, I do not understand what is the difference between "special treatment" and "some special treatment." Perhaps you could explain that?

Dr. Servatius: Semantically, there is a considerable difference. If I use the term "special treatment," I mean the well-known special treatment which does not require any particular explanation. If I use the term "some special treatment," I refer to the choice between several possible special treatments, or treatments in a special manner.

The Eighth Count of the indictment: This Count refers to the charge of war crimes. A condition for the existence of a war crime, is that a state of war exists between the states involved. Charges of murder, including the deportations, in the course of events which occurred between countries which were not at war with each other, have therefore to be ruled out as charges of war crimes.

Therefore, the events in Germany and Austria, in France during the armistice, in Czechoslovakia, in Hungary and in Italy under Mussolini's rule, have likewise to be excluded. As to remaining war crimes committed during the hostilities between belligerent states, their prosecution is within the exclusive domain of the injured states. This appears from the provisions of the London Agreement, dated 8 August 1945. According to article 6 of the Agreement, the trial of war crimes shall be reserved to state tribunals and the tribunals of occupying powers. Where no punishment has been imposed, provisions should eventually be made in the peace treaties between the belligerents. This is in accordance with the prevailing custom when peace is restored. An interference by third parties with the punishing power of the belligerents, is not approved under the rules of international law. Ex post facto and by way of legal fiction, you cannot transform the aforesaid events into war crimes which can be prosecuted by the State of Israel. The charge in the Eighth Count of the indictment must therefore be rejected on legal grounds.

The Seventh Count of the indictment concerns the so-called plunder of property. This is classified here as an accusation of a crime against humanity by way of enumeration of examples. These are murder, extermination, enslavement and deportation. Control Council Law No. 10 completes this enumeration by the examples of imprisonment, torture and rape. All these acts are directed against bodily integrity. Taking away of property is not included in that.

On the other hand, injury to property can amount to a war crime, where it takes the shape of plunder of public and private property. It is noteworthy that both World Wars have shown that the sequestration of enemy property was a popular measure with all the states concerned. Afterwards, it became most difficult to part from what had been obtained. Apparently, it was not an act against humanity when internees became destitute.

In these proceedings, the Accused is not charged with personally having taken away chattels, or to have enriched himself personally. Theft, if committed by the state, is carried out by way of legislation. This is the fate of enemy property all over the world. These provisions enacted by the state are available here in this trial. I shall quote them in my closing brief. Only one of the Nuremberg verdicts classifies injury to property also as a crime against humanity, but even there only after some hesitation.

Moreover, the decision is open to criticism; for it construes inadmissibly the facts constituting the offence by way of extension - namely the facts constituting the offence of an act of violence, the violence which in itself makes the offence a crime against humanity. Accordingly, the Accused was not the central figure for the seizure of Jewish property. Together with many other agencies, he was entrusted with carrying out the legal provisions. The Head Office of the Property Administration was attached to the department of the Director of the Economic-Adminstrative Head Office.

Presiding Judge: You refer to this Nuremberg judgment in your written submissions, don't you?

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