LAW Rm?ORTS S:sRIES No.~. .

'November, 1945. ·.

' . UNITED N.~TIQNS • \1"~ CRIMES crlioo:SSION.

~gal Cor.r.dttee.

Trial. of Josof Kraraer D.ncl 44 others.

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Addross t o the Court by·

Colon.>l &d.th,

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. .. In ,view of the ~nt~.tost ~tiQun in the matter ( ae~ , t~e Cpmnission Mee,tings . ot 8th ~nd 14~. ffovembez­

. J.94-5., M.8, .Ql'ld M.8~) tho at~teroont inado by

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. . Pr9foasor H •. t .. &d th c.a defeming officer in the ~b~ ~:1,·ai is hcro;-ii.'th o~~o.tod to the mer.ibors of the Camidssion.

The tollomn~ is tJic text of tho 'olosing address, ~.on th~ 4.~th day of the trial (7th Noveml>or, 1945): ·

I, THE BAatGROJl,NR OF '.l.1i:E .t\RGUMENT, ~. .

' . " Everythi~ that vro ~ and do here is reo~rd.oct~tor all.· future

;onerations, and uhat we sq o.t this bar, and .to .Wha'tevor .. docWon the OoUrt will o<X:ie, 7dll be subject f'qr n long long timo to moat minu~ aorutiey by bisto~ans and by la\vers and ma.ey others. ·

/:. .:...·- ·· ··- . . . . . . . . . - ~. ~ . . _-:.·_ - -=· What is .involved J:lere ~~ . ~~ much. more than the fate of tbeee

obaouro individuals whom the- a.ooi~nt of o?crations has swept into this dock, WbAt is really involv.qd, I think, is tho issue wbather ·our country will b~. ablo, in this cri~is and in the tooe of oonsidornble popular clamour..-~-tnain'tn:tn a :r,oputati'on .. wbi~ J. think ahe has won and deserved, for upholding tho rule of laTr as between no.tiona in all oiroum­sto.noee. That, I think, is. an issue wich is clearly before tho court at the moment as wol-1- a& that .Qf .th~ individual accused•

\Vo a~ concerned here-0

80le~:...''°··· detennino whether these aoouaod arc g\\ilty or not guiitY of a war er~, o. toohnioal expression in the light of Intornationa.l la\?. Thn~ being · so, it followed thnt a decision that the accused, or aey of th01!11 ~e not S\41 ty of <'. vmr orimo under tho Lo.w ot No.t1ons, 11a 'no. bar ~o ~·. ~~~e r:>roO"eodipgs o.nd ,CJ.oea not prejudice ruv t'uturp ~ooeea:;lngs if t}10y,·.nre .ohfrg~d u~on tho same or similar evidence (or.: their a.ots in Courts 'a.dud.rllsteripg athor la.w, such as ?olish law, Gorn~ .law, o.r 3.t rr~ b e SaJ\O other, ' . ·. ; · · · • ·

' . ~ I explain thc.t 't or ri mombnt. You vdll romember the lloscow

Deolarnt19l\ ot 19lt.3, ~en ~t was provided t~t tho maj9rity of wnr orimina+s ~ that iQ, excluding tho -v~ry to~ l evol- should be triect in

tho countries \"lh'ere ' their orl.mes were oom:dtted, o.nd since a large mmi>e:r; of -phc oases concerned here ore Polish, I will begin by ea.Ying

·tftat ·'-~oryc ·casu which~ originated in ::>oland , at Auschwitz, oan be tried by. a Poii~: 9qurt e.s an offence against ?olish lo.'7. . . I nr:i i~o~d also, o~ the author~ ty of t'.\Y friend op ey let:t, t hat the ~o.li~ ~urt"a haw also t;:1.ed·. people for· offence~ conrni ttod agN.nst.' ?olnna out s iae Polnnd ~r :?olish l m:. Thnt i s a. · cor.Jnon fen~ of tho Continental codes, . .

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.• .... .. t~q.~ .. it is not in English law. . .. .. . ·- . .

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Furthermore, they can be tried under German law. When I sey German lavt, I . o~t to explain .that it ine~ Gennan lar1 under the control ot the liI.1.li ta.r,y Goverment. It is inq:>ortarit, oecause whether the cases o.re tried under Polish lo.\V or Gcrr.lan ln.w .under the Military Government, or under some other' Czech or Hungaru:ri or Whatever it mey be, the def enoe which 1 t is nort Jl\Y duty to urge will not be available in those Courts. 'l'he re~o~ .. ~.o.r. ~at, partioul(>.rly insofar. as the Gennan law

is conoe~ned, is that law No.1 of the Military Government prevents the Courts now from relying upon 81'\Y la\7 flhich gives aey privilege to the National Socialist ·~flZ'tY o~ _ whioh in. aey WrJ¥ disorirn:inates against people by virtue Of their race,, religion, . e"tc~ , •' ·• . I

. . . . /' . . : ~ . . . ' ..... : ... .. . . . . " . ( . All those Cour.ts are controlled by ~litary Governm,ent in th;is sense,

that it' you are d;sso.tisf'ied with the decision of a Gennan Court, even an aoqui ttal, we oan quash the proceedings and try 1 t again uncler cur own

Military Government Courts.

I want to make -1 t clear, not only to the Court ~ who· I w sure ~ratand it - but· to. 8.1'\Y others who~ be. lntereste.d, that the tunotion ot this Court is limited to trying the case of gui1ty or not guilty of a v1ar crime. As mu- crimes deal with the law of Nations auoh a decision

... :, can ,in no way affect and in no ·,103 pre.1udice aey future pr~eedings if ... ,. ., .. they ~ tlrr4li,e11€H1 U~.>On tho D~'C or siuiler E>vi.donoe \ll1(.1or i:olish, Gorr:nn

or .~ oyster.1 of lo.w. I

One more preliminary point. Mothing that oan be said her.e, ~o clecis~on . ey way ot D.n aoqui ttal., in ar\v ~ l:lriii ts the . responsibilttY ~ est' .

. . tp.EW ~mart GOvernment~ The Gercan Government, as A,rtiole 3 ot the Hague · Convention says,. remnins liable tor all the acts done in its name, and the ·Gel'lllf.Ul Govor11r.10nt io rcor>onoibl.o· for peyi11g the· i'Ullcat ooq>enaation to every non-GertDa.n subject who has .suffered in these conoentratip~. camps, C11:' .t~ the dependents of those who have perished. I shall have occasion trom

·.~':1 . :: time to time duri~ ~ remarks to en:phasise the imnenae. importance ot this distinction be~ween the responsibility ot the State and the responsibility pf the :;1.ndi vtduill.. I mention it · now merely by wq of. prel1mi1'&r.Y' in order to. emphasise that the function of this Court is limited to. a ;particular job

. . ·.and that .nothing Tie do here can in 8J\Y W83 e"tfect what mAY subsequently be .... decided by other authorities. •

' .. ,) Now I 'want to sketch in, if the Court will bear Td th me, the kind of

background in outline to the general o.rgw;tent which I shall try to present • . , I have said that this Co\Jrt o.drniniaters only International Law. I wish,

it I may, just to expo\Uld. that for · a minute C11:' two. . . ··. • • .t

Our Court is exactly similar to the Prize Court will.oh sits in time ot war to decide µpon tho legality or illegality of captures· made by His Majesty's ships. It is, I think, exactly on all four's in the sense that the Prize Colirt is constituted by the King's Conr.ission; it is a British Court purely for that purpose.

Having. been constituted by tho King it does not administer a la\7 laid down by the King or by ·Parliament, bu~ it administers the· law of Nations. Now that is precisely trte position of this Court. It is constituted by Royal i7arrant and. the Royal 1:; arrant leys · dovm the procedure to be followed

·by the Oourt, ·.just as the Order in Council leya down the procedure to be followed by ·the Court of Pi-ize. · But riei ther the one Court nor the other will take its law, as distinct from procedure, :frora the King or from Parliament. Par+iament could intervene·, but Parliement does not.

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, That ' is JJD.de very cleur in o. caso which •lill be familiar to the learll'?~ . J~e. AdYoca~e , tho co.se of "The Zr.aor~" ·.-mich is -~·or.tcc1 in 1916 2 Appeal Co.sea at page 77, in l7hich the question in issue uas rdlethcr the Prize Court was bound by certain rules laid dorm by Order in Couna11, and tho Privy Council said with considerable enphasis that the Prize ourt could not be bound~ by an Order in Council so far as the law was . oonoernod; it could bo bound like every other Court by an Act of Parliament, but there was none in issue. · : ·

Exactly in the 88J:le wey it is oloa.r this Court t'l\lSt use its own judgoent independent· of the 'Manual of Milita.ry Law and of aey other authority whatsoever.

That brings me to another point. In the R8gulat1ons you Ydll find -I think .it is unde~ Regulation 8 (3) .. that the ourt' take~ judicial notice of-. the I.iaws and ~SB8es · of '7ar. I propose , if I rne.y, .to dwell upon that ·for oneJ J:d.pute, because" I r~all.y . thihk that that ai~e .law is more ialporie.nt •than all thO rest Of tho R.egulatiorm put together, and it detend.nes very la.rgel,,y tho course of Jl\Y own argument •

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· i'~oi:aJ._ .. ~tioe 111 a· t~ohnioil phrase Tlhio}T,· irr· ett~~•~ ·.me.~-_ tile,·' Court is :aq>posed .to know as a ·matter of its 0\711 m111.-tnry knowledge wtiat ' the 'Ut.iTII· ·and1..U~s of. War ~ •. i Every officer is ~wosed t~ icnoti then - · ·· lbd· .:r oDq?baaise · that: because I thi'nk 1 t necessary to reassure this Oourt that when I say I om going to talk aboµt International: Law the icprosaion is apt- to; be to.ken that- I ar.i going· to l oad the Court in~o some kind of mysterious legal jungle where only the specialist or exi>ert can.find hie ' way a1'out. Actually it is going to bo very different i~4e~d. )(y argument •is· going to be as• tree as possible from anythins 'iri th(1 W8.Y, of to.chnio~it~e~. . I qope . I shell use no argument which 1., l)Ot equally

=:~~~~~· ~o ~-~9>.:v ·o~~r' h~~;, Wheth$i:- .ho happens ~o. be. a ::.wyei: or

fl"-) .; ... , ... t .,. .... '- .~ .. , . ' . . n.- '™ -iR>P.rt~e· ¢' .. :this t>~~o 'bf 'the ' regUla~ions: Wbich .J;. ~v~ :' : .. ;iuqted ~ ~p 6. ~pat i:t. . appea,1.e'. direo.tly to t he .mili tar,Y. kno~l~dgol' fit:. ~ve~ If~~. of· .~ .• '?'ll"~-:.~~~~. I~ - ~av'~ t9 hiin: you ~~·:of.fie.or ~,. _.~p,o.a~4 ~ ~ .. ~t tho laws and usages '"of war are J you ae a soldier and an otficor are supposed to know what is meant by a violation d these order~ ·:::rou ~o hot need ~ · ~:1' to .tell: you whp.t is ~,ant:i.. ·'

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.. ~j, .• Tlj.!r~p~, .I,, ·~thout in ·a.ny \?ey"be1'hling the ir:JpOrtance of the tunotiona of the learned Judge ;.dvooate, vii.ah to improssupon the Court at this e~~ atage that it ia a respo1l!5ibiJ.~ty of ev~~ :1~vidu~1~mbe! oft :the. ~t ~s an officer to . exercise }_l:l.s pe,rsonal and indivi -j~nt:.upon . ~e. argumon~ which· vr,Ul be P,Ut bef or.e hini. · . .

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, , · . I ~ve · JI\Y.&e~t s~t~s bee.n a judge .. Q.dvooate aJll L oerta,!ill.r would ~t ~t la.at . to bel-ittle the ~o.rtanoe of the off~oe but I 8m not in any sense belittling. it but, •at the same time, · I . ask tho Court to aha.re the rea~~Uity of. the lo~ned ·i~e-S:dvooate when they are aelc:lng themselves: ~tnia,,e. , ;we,r c~~; ~ . this a .vrar .. or:lm ,or not'? : " . . ·: - · ,

·~;'. . .~ .£":;;, al;~, since f ~ apPoaling .. i'~ this very '.i;Di{:J.vi~ ~ · to. ~<il'fr.~~r ot the ~~ ~t I will' ~roome, fr:an ev~i;j\ Jpenb~rr of'. t~ Courlr and from the lea.med judge-a.dvooa to ns maey iJ.lterrµptions ¥ they Wiah .to~ o~: 00v .ppint • . · I know .vecy well that I o~~ ~wqa nake nw.ao]it o;Lea.r, and it'. there is aey point .upon wP;i.oh I ~o not make -~ ole~ , . ~ ~ope tl?-at~ you and _your oolleaguos will interrup't me Ila Qf~~ an:1 aa long -as y~u. like.. ;· -·· . : . . '

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:( n0w propose to ®al with .Chapter XIV of the Manual of Military LLm. Having snid that the Court adninisters Intc~tional Lifrr the next pQint I vlish .to eoph~sise and ernphasi15e as strongly· as I possibly o~ -- b·eoause I foresee possibly something in tpe . na~ of 0. flank a t~ao~ fran: the qthcr

. . :, .. side -- is that the .law which you will :administer is the law at the· tir.Xl :.,. , . ·· of the offence. Tha.t 1 ·of course, . is nn o~v.ious and altlo~t univej;sel.ly

recognised principle of all criminal lc.n. I '7ish I could sq it was · universally recognised, but I cannot beonuse it has'been deliberatezy violate4. by the Get7;18.ns. But gonerally spcold.ng 11; is ~ fun<W:\ental pr~noiplo .of all oriniinal lo.win civilised ~ountries th8:t you: oiuuiot punish a man for a crii:ie 'which WD.S not 'definitely a ortme Und~r the relevant larr at the time the .aot in question was COT.lTJitted. · · : · ·· •

.. :· '. :No.·one ~iI. M~~-~ V(ith ·~.Ho.~ '.outs.idJ. GCrue.ey and ·f:~~d. ·l~e to dx:aw your ~tt.entiqn ~ tfl~ fact that_ we hD.ve emphas~ee~·. 1n · our ~o~~t ct Gerr.11P\Y ~t func!aifen~al p-r~noiple mi:oh the Gon~ thomaolv;e~· ~olated. In the fir~t 'la··yr ' ot .. tlie Mi.lit~ Govcrnrent we· haw 1lai4 this ~v.m; · "No charge sha.11 be pre.~ijrred, no sentenoo ir.tposed Qr · pwii~nt intlloted C:-0r an act unless sUch aot is expressly made punishable by the law in f oroe at the ti!Je ~ ito oocn'.ssion".

.. · ; Now, as .. I ~ ~ I .am emphasising that because I think it is possible· .. ·:· tha~ an ar8UIIJ8~~ rntlY 98 used -- I may be doing Jl\Y t'riend .an inj\iat:toe, ·but

.'': it. '-s poessible it .'f:IBY be used -- tno.t International Lav is progreasi've. ·and ·· · "wha~ever ~t is .in· the books the C°':l?'t cay be invited to go ahead and oreo.te

. . a · riBw preo~!lont for ~oroething Ylhioh has never been done before~ · : . . . '. . .. .' . If ' that is in the mind of. r:ry learned 1'riend I will ~ :tt. is o. mos~

d,azjge~a thing, o.nd '-:hp.t -~~ more relevant in this pa.rtic~~- obtSe,ia · . that J.'t would emboey one of the '70rst t~atm-ea ot the German .. syi{tem ~oh we ·az.:e trying .to destroy. By lau on· Mey 10th 1935; Hitler "- ·? dol f;1ot know if you have that before you, but I can give you a reference' later. 'On - ­was very impatient \Ti.th the ir~itating. t.~ndenoy of tho German judges to

... decide ori.ses according to law~ and he laid it do\m thnt people were to be ' · · puM.slled ·al tho~ they contni tted' no oftence against the law it !'Mt was

C'~l.-e~ soUP.d pub~i~ opinion, "Vollcsgos\lndhei t", l\S it is o~.ied "in German,y, ~d ttleir .punishrnont. We ·ore in sct:le danger of that herf>. ·

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Public Oj;>inion, sound or unsOtuid, has lashed itsolt up into.ll:·;t'ury aver this oase and .all/of us sitting hare at this .bar have some personal

_'~xpe.rienoe of it - not ,that i t is relevant but I can ass\U"e you . \1ie have boen· made . to reel it · · . · .. · 1

' • : . . . You sEl'o \mat that German law meant. It meant really the abrogation

ot the rule of law. Germany in tho old days would have been;proud to call itse;µ': "Re<?htsste.at", but the lo.w of 1935 ma.de an end to it. Under that lo.w.anybody oould bo punished for aeything; Hitler did not care whether it ttnl! ~ainst the law or not. Therefore I f eol I oannot over­emphasise, even at tho risk of being tedius, the importanc;HJ . of asking tti. Court to consider only the law a.a it was clearly enforced at the time ot file alleged offence and on ordinary principles of oriminai law it will be .for Jl\Y friend, . Col. Baokhouse, . to prove -- the burden is upon him -- that ever-y act charged was a criminal net punishable in the individual oonoerned at the time it wo.s cor.Jnitted.

May I add by~· of ono further caution· that it is no funotion ot the Court, to ask itself 1whcther tho lavr is o. good lm1 or not~ or whether it is adoquate. If you 'uill be good onoligh to glance at the Manual of lrlilitary Law, Chapter XXI, you will find rather an interesting footnote at the foot of' page 4.

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1• Thia is the chapter which has been :l.Merted ·later linto the MD.mua,

and the foptnote r eads: "The experi~nces ot the Great n ar ~u~je·cted the HBGUe RUles t o a :sey,!re t est. On the whole ··.•• the Ru:l!es1 <lid· not·· vrork badly• o.rd their ab13ence would have been · dis~trous." · iThen it" goes" 'dn · to s~: "At s ome future ti.Joo tl\ey Will requU.e 1to be rec·ons'idered at an Interna tioilal Conf.erenoe . and. bro~t Jmore up ·t 0 ·date.. Further, prev:lSion 118 special~ required foi" dealing ·With the treatment of · resident . eneflG' 'Subjects, the means of carrying on war, the bombardment of undefendea places, the question of military reprisa.lo, the punishment of war cr~s, ani the occupation of eneJl'\Y territory". ·

. . ~ow whether you agree with that or not, U was clearly ip the minis

of the learned authors of that chapter, Colonel E&Junds and !:'rofessor Oppenheim, that they did not think the law ~s quite good enough, they thouaht it needed being broUghtup t o dato' 9.nd as t}\ey sror qul te properly it 1111st be brought up to date by interna~onal agreeJ:!ent, _ You will see, therefore, that the l aw may P.?S~ibly be clefeoti ve in ~. opinion ot the Court; :you~ think it is o. greo.t ' m18(oi-tune that the law as"ibo find it ~oes npt contain rules '1hi.6h enable us. in' tliis Ooµrt t~Q .p~sh· ~ae ·. people. Ho'Wver, that ' is a matter to be decided clae~~e. ·" . .

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. Mf\Y r here draw a oontra8t with the f orthcotdrig . triile at, :Nµr.embUJ"g. Nebo~ pretends tha t that is a trial ~r the ensting, law .. in 19~.... In fact I think I may BTW that lawyers as a whole tU"e rAther, dcn,lbtt~ , ~out th~ whole proceedings, but that is another matter. It is, at. Ql'\Y rate, ~ sp~cial case governed b~ ~ecial international asreeoent of all the Powers co~cerned. This court, on the other~. do~s not r est up9n ·IU\Y interriationa.]:. a.greerllent; it is 'oonstiwted 'by purely ~r1t1sli ~thor1ty, by His Majesty's Warr11nt, a. nd its· Ciuty is purely t o'. ndministo~ the law exactly as it finds i't at tne time of tho alleged offence. "

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.. II. '!'1jE MAINL ARGUMENT. .

J.,. ~t. ·1~ a War Cr~. : . . _ '. f ' .. • • .... • • • ' ·' l • ' • • • - • ; • l

. . First., . I ·.n.11 discuss tn~: _ques.ti6f\. of 1thnt is ~d ~~ is .n~t a. • lr~ Cr~. ~ _ Secondly, I ·.·ril). deal Wi. th the' questio!l ~ re~onsµ;if~ ~. ' . \.• \. ... '-. .. .

· . T}fougho':1t .Ti\Y , argument , ~~rho.ps~~~s i 's eoplifying what ·I sai~; I should like t o say the.t I ar.i really speaking continuously, as it were, in tvro Qapacities . Q-\ the one hnnd, ~ O.OUJ\Bel .~saing a Bench; on the. oth~r hand as_ an officer appe,~1118 to the rai1i ~ judgniept 'and ex­perience of . other officer &. . · .'lliere ar~ yarious points, !>~ ~eing }!lore ~ortant' than the oth~r' b\.\t the two are interw9~11 all through. l'

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The ~irst point is: What is Md what 'i.s not a Viar Crime? He~ · I 1rould direct ~e a.tte~tion of · the:·oour:t ,to <h:i:pt,c:r:" Ji.: ~f tile· Manu,al ot ·Military La\7, but perhaps I shoul,d begi~ by $\Yir~ a.. ~ o.,:o t~ :al)out that chapter. · It dates from 19llt i _n i,ts present fom,; 8jd tho au1\)'lors were the l ate Colonel Edmunds an·d Professor 'Oppenheim; · <Yr tho most part the text is substantia'.J.ly 't!he 1same o.s ~he ~a.st . e~~i.on of Pr~e~~ Op~)enheim' s '{Jell known ·w.or~ on ~"ternaa.ono.J. Law b~fure pia .death. · Teohh:i.cal,l.y it is not an aut)\or'i ty 'in th~ se.nse ~i'ch l.a~.ors understand the word ·0 authority"; tho. t ;is ·t o. sey; ~omething which is bit¥liiig ~on us. On the firs t page i t described itself as beics, l thi'nk, · the bes_t guide at pres e'nt avail abl e on the s.ubjoot-.df 'Rhich it- spanks. It is not JWant for la\Vycrs but 'for servil18 ot'fioe~s· a~_ a pract~~ wOr~ .ins~r:uo~~ori telling them w,hat they ho.vo to do Ylhcn they come ·up against - o. partiij\Uar point. It i s vrritten in non l egal language!, but nt the · sainE(time I think for the meet-pt-:t it' is 'perfectly soun~ in law, 'and I

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nm goi118 t o o.ppqD,l t o it with some c onfidence .

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-6-. . •With that nu.ch introduction to this quostion of iinr Crio:ls, I will

. ' s~ this., that in cverj crino you ho.ve to c onsider three clononts: the .Act, ~ Perpe~rator, t\na the Victim. · In each cnsc the prosecution has go.t· t~ p:r;-ovo·, that · the 't>.bouaed is guilty. in all three respects. That is ·to fJDY 1. the act oonstHutcs the thing which :the ln-r1 I>uniahes·, the · perpetrator is the person who OM ·cor.t:\it the ,aQ~, 'and. t)le victitl is the person. against whom. it' oM he oor.Pi tted. In 1noat 'ea sos tho .. lo.at two do . not matter; but there are SQT.!C er·: ~: .. ~ .::. which CM bo· oor.u:litteu' by 801118

people ~nly - · by · ~octor~, by ' fl·· '...'lergy, and by solioi tors, , arid ·some, as we · a~l ~cm, 1 oornr.tl."ttcd oiily be: 8old1ers. tbet&r ·there arc A1'Y: oriine s cor.unittc'd by lneyers I ac very doubtful! Sir:d.lo.rly, certain crimes can only be.o~tted agui~st certain peopl~ , ngainst people under such and

.( . .. , · euoJl an age· ana·· ~o on:. · • · · · . · · . - · · ' ,,. • t • • • • •• • ' . ) :!. ••

~ · ·:. · . ~ ," ~~ th.r~e pOints', . if' ~el;e~ant,. nave ru.1 got to b~ , pro~d by the . : , ·.' proaecut:l:o'n;' · I . m;i' goi~ ·~o bt:iei'n with the question of the' oot, 1~. 1tbat

. aets .oonptitute··'itar crtmes?· Here I or.1 going to ·aslc tho ~ court ··to . t· . consider \ii.th the' utr.10st core the relevant po.sso.ges. of the ,11.anu.U ·which, as I · soy, ·are substantia.lly the soioo as in Qppenheim' s book. ' . ~ey are

. .. . . .also substantilil·zy the sEUOO as· in the Juoorionn Manual~ · · · · . '· . ,_. , · ·· :· ParagrD.ph 441 of Chapter 14 of the MBnual s~s this: "Th~ tem .. · · ·· . •mtr Crime 1 is tho ~eohJU.ca.l expr-es.sion for ·such an· act o~ enqr soldiers

am. eneD\)' . oi vilians as r;ey be \"i'si ted by puni shrlent· or capture ot ·the . , ' ~ ottenders. · It !is ~sual to .or.lploy· ·this term, but it must be emphaaiaed

' :..... . 'tho.t :it' is useC: in 'the technical inilito.ry and legal sense" - notice '.,.u ·~ ::.· ~ ; "milit~" ·· a:na. "lcgnl" .only ·- "Mci' 'not in thu r.1or~~1 sense" •.

'" :•.. . . i· !'. ' • :

' It goes on to· 88¥ in pnrnSraph 442.: · 11\to.r Crimes ~ b~· divided .into four dif.ferent classes: '· ( 1) Violations of ~e. reo'ogni_so'd .rules d V18rfare by members· of t~ a:mcd forces. · (ii}' .. Illegitir.late hostilities"· • that does not concern us - "Espionage and wnr treason" - the.t does not concern us - o.nd "Marauding" which oleo does not conce'rn·iis. 'l'be o~ .~ns we are f concerned with at the raoment is Sub-section 1 of paragraph 442: "Violations at the .r ecognised rules of vmrfare by r.1er.ibers of the armed forces."i• Paragrap h 44.} gives a long list of e.~l~s. They are not ndfe~so.ri~ <?~~ative but it is difficult to

0

think pf at\}'thing el~e. . .

· )(,y fi~st s~~s.'s~on upon this is tha.t when you read "Violations of 'tho recognised !'ulos of "mrfare by roombers1 of the armed forcesu and go on t~ road paragraph .MJ; -.mich giv<fs a l ong list of exru:1ples,: you will see

·t~t the~ h~ve only. one thing l.!1' cotJl1Cln; they have- all scrJet,hing to' do with ."liar. · ~ey .are ~l concerned "with· milit~ operatiorui~, ending up vd th the tre~tt.ient of the inhabitants of cooU,piod t'erritory. · '.!hat is the comnon featUre of ~hem 011,

The rules of intornational law sre all ,uliil:'\ately 'reasonable rather the.~ teobr4<;>~.. There is a ·~good reason f or them all, and d.f ~ou turn

r • back a 'Pllge you will find the rens~n. The mu:lb.er of the p~agraph is 438. t . . •

I.et me Q%plain ,the general arrangeme~t of this manual. It corresponds, broadly · spq~J1S, to the rules of vu1rtare a ttaohed to the F6t.rth flague Convention~ : · · Ono has got to remember that it has got to "be considered· as a whole. If you go through it you will find, . following tho Hague Convention that 'it deals With one- subject after o.nothor; the quostion of combatant ana non-combatant, the question of l egitimate '1eapons an:i that sort. of thing, the question of legitimate an~ · illegiti­.mate bombardments, prisoners of Yrar; t~e sick and wounded, and enda up a little before this with the occupation of enclT(Y territory. . .

..

-7-• I

'\ That takes you· dom to pnrll.grnph 4-34. 'l'ha.t f olloy1S the rules attached to the Hague Convention in the some order, and it is, o.s it oore~ a ;;ar Of.fi0e cocvnentary up<}n the Hague Convention. In other \1'0rds, the grentcr part of ~his oha.ptor is aovotcd t o explllining \7hat you can nnd cannot do in a9tual opore.tions. ThC\t is the general principle .

, Ha~ng explained all that at som l ength I nou come to page 81 to the mans of securing l egitimate ...;nrrare. You have been tol d a.lrcnd,y what

·1egitirlD.te warfare is a.nd ·~s· riot, and then you havo this section v.rhich says the means of scouring l egit:Lrnate warfare.

I Ytill begin by saying · that complaints ore a.lweys made in any war. ~aragrliphel+}5 and 1+36 r o- ctlphasiso the prinoipl oa of state r esponsibility. It quotes the Third Article <:£ the Convention; "The offending state should be made to P3¥ oanpensation and i s responsible f or a.11 acts connitted by persons forming· part ot its anned f orces." . Thon it go~s on. t o say \That remedies are avnilable; "As war is tho last re~d,y of Govenv;ients for injuriee, no means vrould o.ppoar to exist for enforcing reparation f or violations of the lo.'ils of vmr. Practically, hoviever, legitimate war.fare is, on the whole at least, ·s·eoured through oovera.1 meo.ns recognised by Intei"natioml law. Moreover, it is in the interest of ~: belligerent to prevent his opponent having any justifiable occasion f~r occplaint, because no Power, and ospccio.lly no P~ror engaged in a na tio.nal wor( can afford to be wholly regardless of the public opinion of the world. l+.38) These moans fa.11 into two classes according to ~hether or no they fel.l under the oategory of self-help. To the one olass belong: complaints lod$e·d with the enCf.\Y; complaints lodged with neutral ·states; and good otfioes, mediation and intervention· of neutral s.tates. . To the other olaas. bolong: punishment of ~ ~s oamnittcd by eneJl'\Y 11oldiers am other e~JJ\Y sub ,:Jects J reprisals; and the "taldfl8 of hosto.g~s". . .

... • « .. .,, • • • • • •• ' •

· · · . ·, tt ·yau ~~dd , tw_s· D.S a ·tlhole.1 yoi,t get it.placed in the. rign(perspeo­. t~ve• The p\lniehmertt of vi3I' :or:Uoo.8 is ·a means of securi~· legitinl.te ~or'_e and nothing else. '• Tho.t .J.s\Ory iJilporlrult and I do Wish .. to impreslf that upon tho court as S'trongly us I can. The only purpose of mak;;lJW a: war ord.r.le p~shable in tho individual is that it is a oe~ of securi~ · le~timatc wSrrflre eld· it is introduced because without this terror hanging over individuals you oould not be ce:r;-tQ.in th.'l:t Dare

. in~rnattonal actio~ ~n in~cl:na'tio~l level would secure · le.gi t:l.oa te warf'D.re. That axplano.tion governs ·everything that follows and I cannot emph4at1Je it too strongl¥• ·I~ the light of that you nnlst reo.d the definition which is described as being tecl:lniqol, mili tnry, o.nd. legal; wl'lioh ,apl)ears on the noit page at paragraph ~ and is explained further in the following paragraphs. That is very important, and if aey member of tlie court has any doubt e.P<>ut it I hope he will ask oe to olen.r it up.

• ~ , f .' • •

. . ; . .• . . . · ,A't; this point I Wil1 r efer .t o the introductory speeoh .of iey; learned

frienCi .Colonel Backhouse, who, r· think, "l,s under a misunderstanding. . At p~e 23 of the transcript · you will find 11\Y friend quoting paraiz-aph 383, of the Jtlal).ual, mic}l say.Ji: 'l It is the du.ty of the ocoupan~ . to see that ~lie. 1\ves of the 'inhabito.nts are r espected, that .. their domestic peace and

. honour Q:i:-e not disturbed, thq.t .their religious convictions are not ~ntyr.f'er~ with'!..1. eto. . That is a pnrftp~as.e of Ar.ticle 4-6 of .the ·rules

.91~~hed 1 t o the ~·ourth . Hague· Conv~ntion. . "here I think he· hns go~ wrong , ~.s . ~e ho.a, faileQ. to see t~t : t~e w<?l'ds" It _is the duty of the occupant" ro~er ~nly io the ene~ stat~f Throughout the Hague Convention these

,· wo~: "The ·OCCURElut"• are alway~ used in. th& setu1e of the etloJl\Y state. lt-~s over. and ove~ ~a.in , in the Conve~tion and is nl.weys in that sense. ~ut when .it is a question of mn.king a caso against individuals . .

. .

-8-

that is entirely irrelevant; It is tho duty of tho occupying po71or to see that cvery~hing is done . properly in occupiod territory; o.nd if tho occupying power fails to provido for tho.t, then, of course, Artiolo 3 of the Convention Ca:IOS in, much I have already quoted, Il8T.lCly t~ occupying pcmer r:iust make compensation, a.a I tri~d to expl!\in this morning. ··

The same thing applies to the next pru;ngro.ph: "That . ~~ the ~'\78 and Usages of 'liar in ro~peo~ o:f' tho inhabitants of occupied countries, oocupiod by a belligerei;it". Here is a curious cslip. "Paragraph 442" -says Colonel Backhouso - "of the saco chapter rec.de 48 follo\78: I l.tir

. Cr~s m£:Y be divided into four difforcnt classes, the first of suc1' classes being violations · of the recognised 1111os 'of ilarfbro '.". If you turn the~ you wil:l find thnt OOlonel Baokhouso h~s ·owrlooked the second port of that .pnragraph: "by members Ot the srDOd. foroes".- So it is easy, as I sey, to. m:i:sundcrstnncl these sections if ycu dQ n0t \>oar 1n mind that tho prinary PUX?Ose of tho rules · is to, sectirO the responsibi-11 ty of the enef.\Y govrorment, ond that it is only in ccrta.in exceptional oases, which a.re cnrofully dot'ined in the naJ1UE.\l. ( and I would suboi t correctly so) that responsibility rest~ · upon tho individual.

As I have an.id. when you rend the~e· porogre?hs together and as a whole yo~ wi~l see thnt they nre all bound togothor qy this oor.E10n . prinoiple th~t all acts citod arc directly oonneotod with the oper~tiona of wnr, nnd that tho purposo ot the punishz:l)nt ot v1ar or:lms is that 'it is a means 'Of securing the legitimD.te conduct of the ope~tiona o:f' vmr.

Bearing t~t in mini, let us turn t o the. case or oa~es before ue. Here I w goi112 to be very unteohnical and J.1ossibl.y pain:ful.ly obvious w}len I say tho.t theso have nothing to do ~lith1he wor .at 811. Thia p0licy of ooncentro.tion oru:ipa '188 started by Hitler ·.71.thin o. few ooeks of his ascension to power in early 1933. It ua.s continued vii.th over increasing intensity throughout the whole t:il:lo of peo.oo, Md it would have beon contimed after tho wor it tho Gen:lf\lla had lron tho wnr. It was part of a nc.tionnl. Go?T.Wl policy, a policy which we are all agreed is de tea table, pr:lmarily the d.egr4d.ation and ultmnte extertd.nation of tho Jetdab ra.oe. More tho.n that, in addition to the un:f'ortunato Jcndsh race the Germans regarded as their inferiors the Slavonic races wo '7erc treated with scarcely lees severity. So I would like to submit to tho court, and as strongly as I oo.n, that we are dealing bore with inoidonts which occur, it is true, in tir.le of war, but which have m logical connection with the war whatever - a policy vdlioh was begun in peace ns a poacetin> policy and was intended tc be oo.rriod on o.a a pen!Wlent and long-tem policy until its purpose was achieved, the oxten:dno.tion of these unfortunate ro.oea -it has nothing to do with the oper ations of wor wha.tever. The only cUtrerence the war ca.do to this Iong-torD polioy was to inoreo.se the geographical. area over which tha~ policy c ould operate. '.lhnt is to sq, as soon as the Gorrnnns overro.n s~ territory, E&stor"est, it does not me.ttor, they at once put into otfoot in that conquered territory their racial policy, and they ·,1ould have contirued to· do so with eve.n greater intensity 11' they had happened to win the wor.

Put it in another ~. FroJ:l our on point of ~iew in what wey does 1 t assist the seouri ty o:f' our f oroes to punish someone who he.a been guilty of misbehaviour in a Gennan concentration camp? How do we assist the operations o:f' our annias by punishi113 people who have· done this or that wicked thing, such as at Bolsen or o. groat mnny other places?"

-9-

A oor:lber of the Court here interrupt ed:

" I l'.m not cleo.r bccnusc in p~ngraph 442, sub· ·section 2 of Chapter 14 thnt covers rnenbers vtho arc not r.lCr.lbcr s. of "the armed fore es run I cannot ace the: difference. "

Colonel Sui.th r eplied:

" It .ia covered in this v1ey. If someone who is not ~ mer.ibor of the nrmed forces to.lees part in hostilities, including the cOr.llll:ission of a wnr ori.Joo, he thereby comes · ·Under tho second sub-paragraph : "Illegi tir.ntc hostilities in arr.is corr:d.ttod by individuals who nrc not oembcra ·of the nITied forces." Either ho is a nombcr of tho l'nx::d f orces or he is o. oivilirut comnittint; illc3iti.n'l.te hostilitius, onu m:w or the other. But apart from those exrunplc3 a ivon in ~)o.rl'..grnph 442, l1i1ich are divided under those four hoads, tl1ere aro no rm.r crimes. J\s I soy, the r.10.nucl is not o.uthoritive in too sense in rm.tch lawyur s undorstand toot word, but I submit th.~t it luts ~ vory gro:lt we;ight. If y ou turl"! to the k:tcrico.n nruru.nl, which the 1'1:1Cricnns c:1ll the Basic Field MAnual No. 27, Rules of Land Warfare, you will find thl'.t it is substnntinlly, though not verbally, the SOT.le o.s our mm. 'Ibo rclcvc.nt i.rticlcs o.rc 345 and following. They follow the lines of the Hague Convention. .'.rtiolc 346 ."Remedies of .Injured Belligerent" is prnctically tho sru:ic o.s our ~oro.gr.?..ph 438. Article' 347 "Offences by Armed Forces" , gives the oxnripl c s in almost the SOJOO \rord.s as our 11l"ticlc 442. Then_you ho.ve : "Hostilities ca.lldttecl by inclividu.<\ls not of -.med Forces" . Then puoplc: onllod 11~;..ir ·Rebels" that meo.ns who rise nlp ins t the mili tnry govcrra:'lont. Thon you have 11\iar Treason". rlhich ronlly c overs a l ot of nets done a,eninst "military govern­rients; "Unnuthorisod Bclli3cr ents ·', 11 l~rncd Prov1l ers" (the' .i\T.\cricnna have adcled tho. t) and then "M:u-a.uc1ors" Vlhich is the se.r.x: as our own.

.. Therefore you sec tha~ .the ~ .i:""Cr;i.cnn r.ruiUD.l is substantiQ.lly the ~rure c.s ours , . and s o far a s I · hava been able to carry out my own pcrsono.1 en,qu;ries, there is n substantial BOncrru. .:\gl'CC~nt among the various military mani.ia1s E:..s to who.t o. unr crime is. ib~y nll have this in ocmaon, that· it must be o. orire connected with the :>r osecution of the vrar in some· Wey or another, eith.;;r Y1hcn hostilities arc still proceeding or by rosisti~ occupation in a t urritory which is under J:lilitary govornment • .JU though . ;r have r.ia.ci.c thq ' fullest search nv.'.lilc.blc to r.1e since the la.st

, t:l.rao I we.a here , I o .'.l.n S'-!Y with cert.'.l.inty !. hnvc been urw.ble to finq ruv exaJn;?lc of a ''WX cr..na vlhich does not ·COT.¥) under one o'f' these }\eo.ds . The bur.den of :;;>roof is not on me but on rny l enrnccl friend, Coloool Backhouse, and I challenge hin with s~ confidence t o produce UJ13' example in history of p. 1Tor orir.le Tihich c:mnot be brousht within the principl es I huve tried to .explain t o the Court. "

Asked by a member of ·~he Court to CX'~loin the effect of Note 6 on page 82 . (of the British M.'lnU£i) , Colonel Smith continued: .

" The term 11\i"ar Crirno" h.o.s by u'sngc in 1914/18 been eIII?loyed more espeoil'.J.ly in ~cspciot of viol ations o'f' the recognised rules of warfare rl\ther than to the r cr:iD.ining cla.sscs of •w.r cr:Lr.1cs e~rated. Its more ge~rnl · ooaning i s, however, V1ell cstc.bU she<! i n International Law" . I om not qui t c clenr on your point there. I think .Tihat the author ,had . in mind was probably the Lcipzit:; Trials of 1919 in which the best lmorm examples were the subr:ltlrinc sinld.ngs and things of that kind. I .am glad you mentioned thnt boce.usc it boo.rs out who.t I ha.ve been trying t o say. As is well known, the British govcrnr.10nt collected n l ru.:ee m.unber of · alleged •·ra.r criminals of the l .J.st ·wEJX , nnc1 by arr.1.11Beoont t hey v1':lro prosecuted not before oi'..r courts or bef or e I ntcrnntionnl Courts, but before tho Gorman Supreme Court. ~lost of thci:i ·;1ere acquitted. I t hink I om

- 10-

rig:1t in so.yinr;, ho:wevar, tht>.t nll those c o.sos which ~re ;>ut forwo.rd by tha lb-iUeh governncnt aft e r tho l ast nn.r fnileC!. vii thin the principle that I have mentioned. They ch.."\rged the off ender vri th sa:ie act such £'.s the sinldng of nn un.'ll'J'OOd ship vn. t hout ·;/l\rning, \lhich had a direct relation to the opera.tions of wo.r. ·

The point I have b een t ryinc. t o rnnke is tht-.t the acts ohnrged in this charge-sheet hc.ve not hi nt; t o do •Ii th the O!'erntions of wo.r at all. They are opero.tions 71hich happened in tir.ies of war in :i.'ursuance of a policy initiated six years before wo.r broke out, .'.'\M a poli"oy -ylhioh' wc.s

· intended to b e carried through t o the end in pence nnd in war until it had achieved its object. I think thc.t is wM.t \1aS probably in tho nuthor' s d~ .

I referred t o the i.T.lportnnt f nct o f · the court being. instructed to tm judicir.l notice of the r .-.·.-1s a.nd. Uso.ges of 1.:·nr. · I think ·x ¥nll suggest t o you n0w thnt WhC'..t I hnve just been tryiTIB to oxplnin is what every soldier would regard ns ~ wnr crime . None of us until these co.sea were ratsed would ever. have dreDrnel.1 of seying within our militory experionoe we should trent ns o. war crime s omething rOl'lOte from the thoo.tre of war oomnit~ed in pursuance of n policy originnting in peace, and having no relation whatever to any milit:iry orer ntion on the f nce of the earth.

For the moment :( will a.ssumo the· role ot an officer tl1lldng to otticera, and I would o.sk you: ;7ould not :iey otticer 1£ he vms asked betore. all this business begn.n wha t n \7rtr crir.lo wns, : ho.ve nnawered in the sense I ha~ just boen trying t o OJC!>l nin? . I think he would. I run sure 11\y loQ.rned friend Y•lll ha.ve n dif ficult t nsk in · trying to oonv:l.nce the Court to the contrary.

I have sl".id enough about t he question ot the act, ard I am noTl going on to apenk o.bout tho perpctrn.t or nnd t he victim. Conoerning the perpetrator I need not S1J3 ver;1 rnuch. Loo2dng bnck nt po.ragrnph 442, '7hioh ia subatnn-tially identicru. with the .~noric1:m n :nu..'\l, you ..-r.1.11 find that the first aub­seotio~ is: "Viola.tions ot t he recognised rules of wnrfni-e by med>ers of the Armed Forces". Of course , oi vilio.ns can comnit vmr orirma such na espioMgt\ war treason, and mnr£i.uding. J.lso o. civilio.n onn be guilty of the nairder of o. prisoner of wnr. Thr.t is all. But if ho does the latter, he is oarmitting a.n a.ct of hostility o.nd nn illegit:l.mnte o.ct of hostility tor whioh he c o.n be punished under the sec ond sub-section ot parasro.ph 442, but here none of the aots chnrged in this charge-sheet, except poaaibly one, oome under that head.

I think perhn::;>s this is o. convenient point to refer to the few oases charged where the Victims hnvc been pri.soners of wnr. One of them waa a British subject who ·.1as co.p tnr c..l c.s C\ ::;>risoner of war and tranaferred to the oonoentrt.l.tion co.mp - n clear Intor nD.tional wrona. What did the wrong consist in? The t7rong consis t ed in censine to treat him as a prisoner o1' was and taking him out of the orunp •mere he w.is protected by the Geneva. Convention am putting him in tha.t concentration oanp, where he wo.a QCPOeed • to the same treatment o.s any other it'lN\-to. Tho responsibility there reets w.lth thoee who took the Jl'll\?l out o.nd sent hin t o J.uschwi tz or Bolaen or elsewhere. ait the responsibility of the ? eo:.,le ~t ;luachvr.l. tz and Belson wo.s the eome in regard to 1hat mo.n a.s FlIJY ot her i nr.10.tc . I do not lcnow 1.1' they even knew he was a prisonor of mu·.. In MY Cl\3o they hnd no option but to treat him ns E1.nyone el se. Th~t i s why I cm:ihasise now the importance ot drawing a clear dist inction bot.\reen tho r esponsibility of the Gorman State nnd the responsibilit y of t ao individu~l in the partioular ·oaee. That is a very good. o~.r?Plc ..

Sup;)oSiJl.[ .'). ;irj <Jc-nor Yl::'.S murdered in his prisoner .¢ \7C:r CD.in:? by n soldier or c civilic.n, y :"lu -r1, .ul<.1 have n clc;-:r C.'\5e of c. ·::;tr crime. If ~ou tclc~ him o.·;1,-w from c.. :)risoner of ·;mr ,COlll) c..hd ~ut hi.i::i. in nn internr..ent Ol".Jl\) the Gcr11c.n Governlllcnt is r esponsible for t!-.~l,ine t o trcl".. t hir.1 in c.coordnnoc with the Gcncvn Convention. '.';bcn ·he ·:i s in a n inijer~nt Cl'J:I.:?

he is just the scune ns nny other intorn?o f'.n,i.. the rcsponsi bili ty is the same.

The viol ntion, ns I sny, ~ be either by i-,etibors of t?e l\l'fj)d forces or by_ eivili~ns, but by ci'.lil.lnns only in certcin l:i.oited cases wnich ·I think o.re sufficiently se t out in the rmnunl, nnd in E'.11 c nsos the saJ:le tlti.ng npplies us before; whether they D.re cor.r.dttcd by so+diers or eivilinns they must he.Ve direct connection ni th the oper ations of Wt?Xe . .

Turning t o the victir.l, he r e I DJn llf'raici I shc.11 hnve t o nsk the patience of tho coiu~t :in .m· c.rgu.i:ient Ylhieh is more t cchniocl. thnn tmythi?l[! I pro?oae t o inflict upon you. ~'hey i~rust be allied n...'1.tioools. I think w are agreed upon th~-.~ end the chr-.rs c.: soys s o - •"'.gain f or a very good renson, It i s no p.~i:-t of our business t o ;:>unish crines cor.r.d.tted by one Gerrac.n c,go.ins t a uother, nor is it ot:r busine 83 to punish Gcrt1£'.ns .for crimes oor.mittc<l ag:-.inst their nllies . I scy thr.t f or this reo.son. I notice references to Hum.:;P.rians and I falic.ns i.'ho are certo.inly not nl.lled no.tionnls, even thoueh sonc ~~ r them have come over t o our siue. Tho words 11/.llicd ~ntionnls" hns c. definite raenni.116 nnd relo.tca only to thoso ,,·ho ere nc.tioneJ.s in the list of countries knorm Ls the "United Nations". There is c defini tc list •1hich does no t il~clude Hungary or Italy even if the present Ito.lio.n government. is c o- o?er ctil'),3. I do not think the prosecutor is likely to !JrOss tha t Ll.1'.+.~er 30 I will not soy nuch more ·ooout it • . ·

• • t ··, . •

On the .question 0f t he P;lei Y~'P nrc , l . think, in.thd .J.aree CD.jority together with sore Cz:;choslovclq.nri~ .:-me; l)O$si'bly l1.us'trinns, I h~ve got ' · J'.!1~.hcr 'a oo_re difficul 't tc..~k fo:t' rh~ch I sp~il ho.Ve t 0. .ask .:thc ·pr.tience . of ~e' ~·qurt. ..1.rt~c+e 442 includes runong \1Ur cl~i.";les .the ill troC.tbent of the irumbitv.nts of occupjec1 t erritorv·. . . Thc.t dn we r.icnn by "Occu::>ied Territory"? Our .. Go"'."~rni:ient· rcr;o.rda ~olo.nd piid tho ·grcc.t er pm-t . c;t Czccli~ovilif:\ as territory ~CCllJ?iQd by the· Gelm~ns iri the sense of the Ho.gue Convention • . But; ·on the ''other ruinc11 putting ourselvos in t he ~osition ot; the _ accused, wm are Ge~, t ilc!'e ar:!.sc3 the question: whet is th.e ·0.CCUScd· t e> do? Does he obey .tbc . l nw of ·}Us p-.-.'n country or docs he. nc.t .ui.:>on the In1;crnb.t.ional pdsition? .Here :COJ:lOS n ~cry iip..ortnr.t . ~oi~t whi..ch- will COtlO in n gQod dcnl in ,v..Pf'.t I ~o.vc to scy du:-ing scYura.f stt:-8.:::s of this .:'.li'Sl:1IOOnt • . ·· ·

I run s ti.bmi tting t o the c0-.xrt. 'rli t h confi dence t his···pro;.osition. Wher ever thoro is a conflict bet\1een Intcrnation~ Lnw ru.~<l tho law 0£ a l">llI'ticular country' it is the duty of th0 cit "izcn of tha.t country to 0boy his National law. · l"or t!mt I have got <;.lA.1. be ovvrwhclr.tlng legal nuthori ty, nnd here perhaps I should ~ddrcss i~rsclf r nthcr cs~ocin.lly to ~ learne~ Judge Advocate, been.use it seems .t o n¥:: qui t c ,oircrwhcl.l.tlng. I }].ave gone into as maJ\Y countries a.s I .h~vc had t ime t o l ook at o.nd they are o.11 the sor.ic . I. will: .refer 'i,oc J.uc...:..-:1..<::~l ~T·.~l[.:c .1~·.r.1c;ip::-•) to two cases on;i.y, l?.e·oause -I kn c_>w . ~ h.3..ve riot got fJI'iY reference J;ibro.rfos here , and nlthough I· ;~ould · over-1Qa9" this heavily Yri -e·: a.utho;ri ty I ~li!.l spare t he court needle.as "references.

The ''.firs t case I -;10uld mention i s t: ~c.";' of Mortensen v • . Peters in 1906 in the ·High Court of Jus t.icary , n:n.ch is t !1c Su_:>rem:!: C9urt ±1).. ~foot.land, reported in 8 Sessions Co.scs . 9 .3: !;..3 pootti sh Lavi Heports 872. In tha.t co,se the questio!1 \:m.s ".!_ui -':e di s'i;inct:y raised fl.nd it a r ose in this wcy. The British Pc.rlinm.~.n·t p:- nsed c.n Ac t pr or.ibHihg certcin forms of fishing in vnrious wntcr s v.<hl.c:1 inclu~e the ·,1hoJ,.e of t he lfor ay Firth :i;.n Scotlcmd.

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They prohibited it in c~rphensive terms. Now the 't7o.ters o f the Morey Firth include a grent denl more then tho rococnised liraits of territoriru. wnters . Th8 offender waa 0. Nol"Vleginn tro.wler whio.h '70.s fishing outside territorio.l waters,· but m thin the ~.rco. covered by the Stntute. He vro.s convicted in a Soottish Court o.nd \le.& oarned on appet'.l. to the Hi8h Court of Juatioary in Scotlnnd ( ·.vhich is the sane ns the Court of Jippeo.l in Encland) and the court unAnir.lously held tho.t they were not onnoerned ns to whether the Statute violated Internt'.tio~l Lnw or not, and we hnve t o nclmit that it did. !the J,.o.~ of the land, h~vrevcr, expresse_d in ~n .'.ct of Porliament, wns bindif\B ~>n the court Md they h £1.d. to ul'hol d the conviction. You will t1nd it yery t'Ul.·ly e.x;pressed in the Judgclcnt and it could m t very .well be otherwise. 'l'he court is bound by Parli~nt as r epresentinl; His Mnjesty•a Govern::ientruid every o.dministrt\tor, police , ·off101al. or ordinary citizen is bound by the lo.w of the l nnd, and if Parliament inadvertently oversteps the lioits of Interna.tiono.l. Law thc.t is n. mtter not for the 1nd1v.1Clunl. oitizeh, or the Judse, or polioemnJ it is a mtter of' discussion on high l~cil botvloen the two governments concerned. l.otUP.11.y thE'.t is v.hat happened Tthen 1 t Wl'.a draw t o the attention of the Government. They discontinued those prosecutions agninat foreign :fisherceri Md squared

· it up •ri~ the Norwegians, and in~oed an mDending aot rlhich sc.id the proaecutiond ~n those oases would only be directed ago.inst British ves:3els.

I oould spend the wholo oi'tornoon· piling ~- authorities to this effect but µi order to show that this is not n purely Bl":ltisb view I will· quote an JaDJrioan · ce.ae, again tran hig}l aut.hori ty, beoouse it oomoa · tran the Supreme Court .ot the United StD.tea. 1he onee ia that of Fong Yare Ting v. United S~ates in 93", ·149 United Statos Reports 698. Co1'l81'9sa there did exactly, or rather more violent]$, mat our Pnrl:lor.lont did. They pa.seed legislation in direot viola.t.1.oJ\ ot o. Treaty with <J\ina. It wo.s om at these acts for the oxolua1.on .ot. Chinese and puttine various restrictions upon thea ydlich waa, in taot, oont.radiotory to o. Treaty between the United States and China. I: will juat quote trcm the footnote Vlhich sums up the decision in this W83: "The l>rovisiona · ot o.n •\ot ot Oonsreaa pAaaed in tho exercise of. its · oorutt,.tutional authority D11at, 1t olear and explicit, be upheld by the Courts, even in oontravention o:f stipulations in on earlier Treaty".

I

Ot the othezt reae~s which I have Ul'¥1ertaken I vdl.l merely say this, · ·tha.t .the o.tt1~ at the Gomnn courts is oxt\Otly the some. I will not ;:.o into turthor detail beoauae this is highly technical. 1~s txr as I have been abl~ to fin4 out, that is tho comnon innciple ot the Courts of all nol?oJltries, where there is a cont'liot botwoon Intornational Law and MuiUoipoJ: Law the oitison is bown to obey his Municipal Law as o. ma.tter of ~vi4Ual ~uty. ~•t doea mt Cl:ltU.niah the r esponsibility of the State t~ thO. offending State for ita failure to make S.ts internal law con-espoM· "1th i ta international obligationa. I think that is bot only tecbnioO.l.l.y oorreot but it ia tundamentally reasonable. · ·

The a.vernge ~ishman can bo Olq>ectod to know tho lnw of his own country, and it TI1J11 ore faced witJ:i o. case where our Parliament has. passed a Statute which is said to contravene Intornntional Law, 8J\}'one ot us, otticera or oiviliana, would sq something like this: "Well I do not know about this International Law. I know there the law booau.se the policeman tells me it is the. law and I ho.ve to do it." That is the comnon sense attitude of ·the ordinary man a.nd I think it is the only :feaaible attitude. What I have so.id there is going to gowm a good doo.l of what l ho.ve t o s~ during this argment.

In the first instance I am going t o apply it to this quostion of occupied t~ritories. Naturally Great Brito.in did not recognise tlie annex.atdon ot Poland or at the groater pa.ri ot Czeohoslovalda, but by Gennan law, which Kramer and a ll the other datendD.nts consider, Poland wns German territory - perhaps I would be more precise if I snid about

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They prohibited 1 t in COJ?P~hensive t erms . Now the ,.-mters o f the Mor ey Firth include a grent denl t.10re then the rccocnised lir.1its of territorinl wnters. ~ offender wns o. No~ein.n tra.wler r1hi o.h '\78.s fishi TIB outside territorio.l WA.tars,· but m thin the .:-.ron covered by the Sto.tute. He wo.s convicted in a Scottish Court And \lnB eo.i-ried on appecl. to the High Court ot Justioary in Sootlnnd ( ·.vhioh is tho SQJ:le o.s the Court of .Appeo.l in Encland) and the court W'lD.nir.lously held tho.t they were not onncerned o.s to whether the Statute violated Intern£1.tionnl Ln"W or not, a.nd we have t o admit that it did. !lhe J;J.~v of the lAnd, however, expresse.d in a n ,,".ct of Porliruoon~, wnw binding p n tho court nnd they hod t o uphold t he c onviction. You wil'- n.nd it yory f'ul.ly eJq>ressed in the Judgi:lcnt and it could not very . well be otherwise. The court is bound by Pa.rl10D6nt o.s representing His Majesty's Govermentruid every o.clministrnt or, police, ·otfio1£4, or ordinary citizen is bound by the law of the l o.nd, and if Parlioment inadvertently oversteps the licS.ts of Interoo.tiono.l La'7 thc.t is a mtter not for the individunl oitizoh, or the Judae, or policecnn; it is .a r.ntter of' discussion on high l~vel between the two governments concerned. J.otUP.11.y thE'.t is ~t happened when 1 t Wl'.a dravm t o the attention of the Goverment. They discontinued those prosecutions agl\inst f areign fisherDCri o.nd squared

· it up ·ni.th the Norwegians, and introduced an emending aot uhioh st'.id the proaeoutiona in those oases would only be directed against British vessels.

I could spend the wholo nttornoon piling up· authorities ·to this effect but µi order to short that this is not n purely British view I wilJ.· quote an Ank>rioan-co.se, again tran higll authority, because it oomos· tran the Suprer.ie Court .ot the United Stntea. The cnae is that of Fong Ye.re Ting v. United S~ates 1n 9,,., ·149 Uni tod Statos Rc~orts 698. Conaress there did exactly, or rnther more violentl.Y, v.hat our Pnrlior.lent did. They pnssod legislation in direct violat;S.on of a l'reaty with <J\ina. It was om at these acts for the exolusion .ot. Chinese and puttina various restrictions upon thcr.i which was, in taot, cont,radiotory to n Treaty between the United States and China. I . will just quote tr<a the :footnote mnoh sums up the decision in this way: "The provisions · ot nn 2iot ot 0ongre88 ptUSsed in tho exercise of· its · oorutt;ltutional authority mat, it clear and explicit, be uphuld by the Courts, even in contravention ot stipulations in an earlier Treaty".

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Of' the othezt reee~hes which I have undertaken I will merely sey this, · ·that .the o.ttitudo at the Go:mnn courts is ox.aotly the same. I will not ;:.,o into further detail beoauae this ia highly technical. l1s tor aa I have been abl!J to find out, that is the oamon principle ot the Courts ot all no~triea, where there is o. contliot betwoon Intornat:l.onal Law and Munioiptu: Law the oi tison is boum to obey his Municipal Law ~ a matter of ~vi4wil c\uty. ~•t doos not diminish the responsibility ot the State towardj thO' ot:fending State :for its failure to make t.ts intornal la.w correspoM· with its international obliga.tiona. I think that is hot only techn1c4ll.y correct but :t.t is fundamentally reasonable. · ·

The average tnsi1.shmnn can bo ox;peoted to lmow tho la.w ot his own country, and 11' ~ ore taoed wi tJ:l a. caso where our Parliament has· passed a Statute which is said to contravene Intornntional Law, aeyone of us, otticera or civilians, would sq something like tbia: "Well I do not know about this International. Law. I know there the law because the policeman tells me it is the. law and I ho.ve to do it." Tha.t ia the comnon sense attitude of the ordinary man Md I think it is the only teo.aible ~ttitude. What I ho.ve so.id there is going to govern a good deal of what l .ha.ve t o ~ during this argment.

In the first instaroe I am going t o apply it to this question o1' oocupiod territories. Naturally Great Brito.in did not recognise the annexe.Uon ot Poland or at the greater pa.rt ot Czechoslovakia, but by German lavt, vmich Kramer and o.11 the other d.ei'enda.nts consider, Poland was Gerrnnn territory - perhaps I would be more precise if I so.id about

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hnl.f <ms Gennnn territory nnd the rest '7as RussiM - but nt aey rate, the Western half of Poland Yro.s fortnl\lly nnnexed t o Gemney. I toke it tho.t Colonel Baokhouso does not want we to pile up the authoritios. "

Colonel Baokhouse, tho prosecutor 1 intervened sJeying he did not · ngrce thc.t the \"iestern half wns annexed by Gorr.w\Y' or neything like tho.t, not oven by German l nw. ,\ srnal,l i>ortion be would agree.

Colonel &ni th: "1be court ir.i.11 rcT.ler.lber whon Gormey invnded Poland in 1939, the country wns overrun and resietanoe oensed, I think, after about three weeks. During thnt title tho Rue~ians invaded frqn the East. They reached an o.greecent vii th the Gen:nns, tho effect of much w D.s substaptinll.y tpo.t Poland '.ms divided up a:?,)roximntely on the O\.\rzon Line, and tho 7iestcrn half became Gennnn in t wo clnsses- and tho So.stern halt become Russian. Thr.t is the position as far as the Enatem·hQ.lf. is to-day. Groat ~itain did nQt recognise either one or the otho~. '.lhe notunl. te~t is that the ~estern parts of Polnnd. were. incorr>oratcd as part of the GormD.n Reich, which covers Western Fruasin o.nd Posen and then there were various sub-divisions.

· It ,.,f\8 divided into two parts of vmich tho ;:;estorn was forrinlly annoxed nnd bccrune p:lrt of Germru\Y• · TheButorn Po.rt vro.s oollod o. General Govenmlnt. 1be distiootion between then1 vm.s purely tcol'lnioo.J., axoept for this, that tho ·;!estern h.."llf wo.s trea ted a.a ~rmo.n f or all purposes; the Ena~ern. part wns no less German, it wns not o. ~mporary r.dlitD..ry occupation, it was a. permanent. o.rrangezoont by which Eastern Poland was put undor o. Goverment General which hnd1 of oourse, dioto.torio.l powers •

. )(y point is this, thnt neither of . thorn were intended to be ter.I!Jorary occupations. The annexa.tion of the r.·estern :>nrt one. the area oollod the Ge~ro.l Government in tho ~nstorn part were 'bo.'f:h equally porcano.nt, and the Polish, Stnto, fr.om the German point of View, oeaaod to exist, and the Ge~n. ~w with minor variations was equo.11.y ap~lio.d' -~o pot;b.

I do_ nQt tbink v1e noed bother very JmWh \;1th tho internal,. diff,erenccs, but every. ·Gorman · in those·· parts (and Ausohv.l.'tz. ie , in tho annexed part) was bo~, too, by. German law. . It was rio longer t.et'l!?o~ily under military · occupation in· ·the sen8e nt the fIOsuo Convention. Gonnan lnw vms applied by Gernk'Ul, o.ut.Aority, ·Md .the Pcl~sll Stnto l\pd Polish no.tion .had cecused t o .exist. . ntat wne the position Eis Kr.uner or a.l"(Yone else found it when he wn.s · in Polond.. .

• l1.8 I sey ~ the il.ndividunl is .po~ ,by .the. lo.w of his oountw. iie ,rrey

,&a¥ t~a.t. 'tho ~o~pation wao, pr~~.c. . It !tley have been ruld, of oo~se; the course ot the vro.r he.a undone it. Lot ce give y'ou a mote precise parallel to that - the Sm.~th '•frioan .. Wal'. . Thnt beg.on in Octobor 1899 .run. lasted until June 1902. . In MAY' 1900, about eight months attOf thQ b,egil'\lling ~ war, 'tho · British · {}overment r ather premnturely publi$hed a proolamntion annexing permo.nently tho Tranava.al 'nnd. tho Orange Free State, I~ m£\Y hnvc been prcnnturo, I thinl<; it wns, "t>ut that does not m:attor, ~ point ~s this! would 81'\Y oftio~ ct this court, if he had 1been o.n .officer serving in South Af'rioa at thAt tir.le, have venture~ ~o, sa, to ,Qis· superior.: "I Mi o.f:raid tho Govorrunent has bocn prC1D0.ture. in anri.exing ·the ee oountrie s .. ·t\nd I E\111 afraid I · .cannot oboy your orders." It would be n perfectly 1.mpossiblQ l>Osi i;iorM ~ oo.o of us, V we hnd

. bqon officers il'). &Puth j.frica or prqinary oi tizens, would have hnd to obey the articles of tho pr0claJ:10.tion and leave it t o the ~ ups, if it wna doubt.ful, 1>o fight it out in tOOi nonnal '7DY on the int9rnational . ~evel.. ·

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. Of course, eyery ;crime must .. ~ considered: t o .a certain extent from tho ;:ioint of ~cw of · the crir.Unitl. It. it is· so!OO-thing which he cmmot be oxpeptod to knq)V or understand, tho.t _;is a mD.teril'\l clement. For insto.nco, if the pe~son is of ~ cortli.1n ~e or class, such ns n policeman, it is, I believe; r.1or e seN.ous .in l avr t o ass n.ult 3. ?Qliceman than t o

· o.ssnul t lll'\Ybod,y else. If, hd.1eyqr., ym~. did' lit>t," knoV! that, you could not be convicted, of .nssnulting him p.~ a ~oliceman. I:t it consists in oamd.tting n er~' aeninst the occupant ' of an 'occupied territory - nnd tho o.couse·d !)erson is bound by tho law Qf his country to .troat it a s ~t of Gen.1Bey - the .rnl'.:t~rial .pnrt of thQ guil.t is sim~)iy: not ~resent. I hope I .ho.vc me.de tM.t point clear. · · ' ' .

I.ha~ it CotlJS t o is this . · So tar as all those 'e.ocused were conoorned-, Auschwitz . v.E\8 Genna?\}', and tho pco:>lc ·in it were German subjects. ?}icy Tie~ not ~rr.nn Qi tizcns be~<i~so tho · ci tizcnship _in Gen:w>y bolo113s to a privileged clas.s ~ow py ~tuo of the Nuror.'lburg !law, 6~ 1935, which restricts ·Gorman ·cit i zenshi,.J .. t o pure Gcnnans. Ii; restricts Jewa and Poles and vorious other !JCo:;>l e , but .all the se peo?l e wore Germon subjects; that is t o scy, subject to tho full f orce of Gorcrul la\7, Nld owing allegiance t o ' GellmLll\Y nlthough they were not Gcrt10.n citizens in t.he sense that thoy h.:'.d tho privileges of German ci tizena under tho Gorr.ian Citizenship I.e.w of 1935. ' '

Wh~t I have. said. a.p~lies also t o Czechoslovo.kin, exce~t th~t it is a little more oomplicnted there. The disner.lborr.iont of Czoohoslovnld.o. wo.s piecemeal, and the ·first act of disnetlberr.v.mt (I am af'raid .7ro -were cooraitted been.use it was cAri-ied out vrith our active assis·i;ance) we the annexation of Sudet e.nlnnd, for which we f.lUSt ~11 share the bl~. Six months after ne ho.d 1l3X'eed t o that Hi ~ler invaa.e·a the rest of Czeohoslovokia, and what ha.p?ened was tlmt port of it wo.s transferred into the Protectornte of Bohemia.; part of it was given t i') liunzllrY and a little bit ot the eastern end wns given to Russin. Hovrovcr, ~ need not go into. al1 these details beoo.use the substc.nce of the m.'.l.ttor .fo the s ruoo as in tho onse ot Pol and, namely thc.t from the. point of view of 0.1\Y Gcrmo.n all that territory, except the bits given to liwl8~ or Russia wns Gcman territory either by di.root annexation or by a Protectorate, ·.mich is ?nlr o. mere teohnico.1 difference.

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Theref are, nt this ~oint a '1r-.r criJoo cnn be reg~d; firstly, from the point of vie\ir of the act, secondly from the :>oint of· viw of the perpotrator, . am, thirdly, it can only be collectively comnittcd o.gai~t a certain viot:l.rn, P.nd it is f or the pr osecution t o pr ove thl'.t ho Vla8 an allied! l'li:i.tional ruU AA nlli~d n.."1.tionnl utY'ler tho law by \vhioh the accused was bound.

This vecy nearly concludes JI\Y first argument unqer tho · general heading of what is <>r \?ha t is not ~ vre:r criloo, or who.t is in more teohJV.oal language o. violation nf. the Lo.ws and Usages of ·:iar-. At this point ! ·run going to antioipute a ~ossible argument which 11\L\Y : or. may not be brought f orward. If Colonel Backhousd disclaims t his ai·gument I will apologise to him for putting it into his hcnd. In any cnae it is a possibility, ll.l'ld s~nce I \vill ·not have an opj?ortunity of spooking ngain l must anticipate it. I fore see the pr osecutor, rightzy -0r wro113].y, s£1.yin3 tra\ t by· the . books or by

·· the o.uthoritie s this i s not n .Wax- criloo, but he ney. sey that we· lmve got " to bring our l a/{ up t o date·, ., Internt'.tional Lnw is 'no't static;; it is

oontinuo.lly deveoping. . It has t o ndo.,pt i~~Qlf" t o meet now Si t w.ti ons o.s they arise. 'lhcrcfore ~ he vr.i.11 1.1.sk tl1e court t o soy that s~thing which is. not ·a t·mr c~ according to all the books and a.ccording t o all the ::>recede.nts · of ._history is going t o be. n '\-7Ul' c~~ from the time the court gives i ts deoision . If that ia in tne mind of rqy l earned friend I am going t o try t o meet it •

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Obviously it is i:l the nature of a. flonking o.tt nck nftor the fron'W.l att n.ck ho.s fui l cd. It is cln.necrous t o ;;le f or this rc~on. Interno.tiorel L aw docs dovelo:>o It is not str.tic. If it Vl'Ore sto.tic it. '7ould be dcr..d.. I have in suitubl l::' cnses s trongly f ollowed thct doct x:ine ti\Yself, but what I will try nnd submit t o tho court now is thot t he dcvclo~DOnt is al~e the applicntio~ of acco~ted , ri!Wipl co t o ne11 situ~tione nnd never n rovorsal. of accepted principl es themselves. MEly I illustrate that.

I will t o.lee a s an example a. case in '7hi.ch I hnd pereoMl -concern. That 'rnlS a case nf contraband in the early stages of the wnr. Ther o is o.

· very long history behind this question of contrnbond stretching bo.ck to · tho Middle Anea, and there ha.ve boen inm.lf.lor o.blc controversies as to Tthat articles c ould nnd could not be included in the list of contra.band of war. Well, a t the beginning of this \7ar oo Do.de a ld.nd of proolnmtion and treated e.luost evc:.7 "!ihing as oontrnbo.nd.. Certnin neutrals objected to tha t a.ril they pointod out, qui t c ritjhtzy, tho.t iTO ha.d never gooo ns far .'.ls this b efore , c.nc1 they quoted nl.l ldnds of :>reccdonts to show tha t vro were going very nn.teh further than l'.nybocy el so hod gone bcforo , and it v1e.s perfectly true~ The ar..swor t o it nll vms also perfectly sound. The :prinbiple of contraband. io tha.t you arc entitled t o stop o.nd capture o.ny ·cargoes Tlhich are 30Lig t 0 help your oncT.\Y in carrying on tho wnr. It De ant the control over e,rcry f om of conllorc~ , but tho teohnioal and :>l\Ysiocl. r equirements of our armed f orcos hiwc pr actically brou8}lt every article of corrrncrco within the principles of contro.band. '.lhnt was the answer which His Maje sty• s Gover nment ?U.t f ormird t o those neutrals \mo

. . : raised tho point. I hD.d SOClC~::.11[; to do >.1. th it end I thout;ht th~ and think still, tho.t it Y/8.8 a :Jorfectly sound answer. At any r a te, it worked, because it vns a case of t a!dne the :>rinciplo of contraband nJ.1d np:>l.ying it to the J:10dern devcl or>mcnt •

I could , if t~c pen:rl.ttcd., but I nll not f.itieuc the court, oito many othor Qxruu:iles very l argely on vro.rfa.ro in •:1hich one has to tako account . of modern developments ~ both in the chnractcr of tho modem state and: in the nel7 syst'"'r.i of mocl.er~i oonr.1crcc u.ncl technical imploironts of wurfare. They havo ·~heir effec~ not upon the prL1cip:£.es of Intb.I'l'lational !Av, but

. upon 1 ts o.p:>lica:~ion +,o the pnrt~'"cul:ir pr obl cu15 of to-day. Doos tho. t o.pply here? Oan you s ay that some circumstnnce ho.a arisen wlEh canpels us to treat as o. Tier cril33 eoueth:.ng '"•tdch has nothing' whc.tever to do w:l. th ~e war?

lfo a r u ~ot f .:i.ced ·1r:.. t..'1 ~- ncTT pr obl e.'lj here. Tho ooncontration camp started in G-Orr.ieny i n 1~' 3.5, and. in Italy much enrlicr, ~.n~ broo.dzy speaking, the 111-trccd;r.~nt of sub j'Jot ' .!.Ces hns been only t oo ca;mon in history in. one f onn or another. Tho fat:"ts, unfor tur.a-;ely, are not new except in their intensity t'lnc'l. {\trocit.y, b'.lt if you soy that modem Internntionol Law ought to pun:i.s.~ moJ.ndministratiol"I i n c "nccmtretion camps in a conntry wo happen to conquor, t hen, of c0ursc , you ore comi?'l[; u-;i a,cninst the fundamental principl e which I m.:m~ioned fa:;.s morning, nru:iely, thl'.t ~~"U nust not, a t aey cost, .mnke yo".lr l avr nftor the event in criminnl l aw.

I mentioned tro Gcrm-:n Treo.ty which violated tha t principl e . It has been held ~' as a viol ati •-m not onl y of w::i.r but of conduct, and 1 · would sugges-t t o tho court the. t the nrt,'1.l?:l0n~ Yltri.oh might be based lq)On this petfcctly sou.""ld clocu."l~:m{; is n <leaclly a~d perilous thil\g if it ia . .applied i~ a case l i ke thi. s , becaunc ~t would, in e~fect, lead us into acknowlodgint; one of the r.1ost te:-rible -t:ti.ngs t :h.:l.'!; our enell\Y has done . On the othur hands of c ourse , it would be flo.~ly cor.trary to the principles ~ !'~ire l a id dovm in our mi:i tA?77 gove.!"1'1ment law for the conduct of G<.:n:l.al\Y,.

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2. Individual and State Responsibility.

" I now cane to the second main heading of r.\Y argur.ient, and the firs t question we have to ask ourselves is: Can these individuals be individu­ally puni.shed for the various things they are accused of doing? Let me sey again what I have said before. In Internat;i.onal Lavi the general principle is that the.State and not the individual is responsible . As an example I mentioned the case when one of our ships r.iakes a capture '7hich is subsequently proved to be illegal and is condemned ns such by the Prize Court. That do~s not mean that the captain of the vessel is punished. It neans tht\t we ... have to p~ c0t1pensation for the ship and its cargo If, to tab another eX81Jple, a British subject is maltreated in Mexico, as has happened in the past, then the Mexican GovernrlBnt ho.a to pay oa:ipensation to the British Government. >.rw question of punishnont is tor the Mexicmn Goverrmmt to settl e as an internl. nff'air. That principle is well established o.nd for obvious reasons •

• To th.-\t principle there are a. few exceptions of Ylhich one is the

piro.te. International La.,1 has alweys pen:U.tted a pirate to be punished by aeybody r.ho can oo.tob him because he is an enell\Y of the human ra.ce. He is punished because he rrould not be a pirate if any Government was responsible tor his notions.

There a.re other exceptions created by a large n.miber of treo.ties which deal with such things as the opi\IIl trade, c-.nd. white slave trnffic,

·which are punishable.

Another exception is that of the war criminal. There ago.in, there is o. reason for the exception, the reason being that for which we ho.ve already seen in Article 438, mere if you had not got the right ot punishiag a. war criminal on the spot you could not carry on your operations ot wo.r and security. Nonoct' these reasons apply to the case now before you. 'nc are only dealing with these cases after the war is over. Nothing that has happened in concentration canu>s has a.tfected our operations in the slightest degree while the tmr was still in progress.

I wnnt to ref er to the a.rgument •;ti th nhich I have deal. t in some length in connection with occupied territories. I run comins a little later to the so-col.led defence of superior orders , but before I cane to that I want to make it clear that the problem here in oost oases is nd:>t that of superior orders as it appears in the oanual or in the other text-books. The oases there put beforo you a.re all casos where the soldier, ... or some other subordinate, is faced with the difficult alternative of obeying his cor:r.iamer who is obviously giving an illegal order on the one hand, or punishment by his superior or by a court of law on the other. That is tho problem. ·

What I ai:t going t o suggest t o the court nCJW is that all these orders wer~ legal, so far as it is a matter of orders a t o.11. Here I am afraid I must invite the co\lrt to consider rather carefully the extraordinary structure of Gennaey. We have in Gcrmo.ey a most extraordinazy situation in which there vras not and could not noimlll.ly be l\ey conflict between the executive order or legal ruling an:1 an illegnl. one in the sense that a law does not pennit it. In the very .first sto.gcs of Hitler's regime the Reiohstag abandoned all its powers and Hitler becaroo the Executive and ~gislator in one . Not only did Hitler h:inself combine all these powers but he also ~legated them to certain members wro were directly responsible to him. Each member had the force of law m. thin his limits , and the most important one of these members was Hir.nl.er with whan we shall be especially oo?¥lernea- this afternoon.

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Hir.r.il.cr hel d high office in the SS before it bocooe n l ego.l organisation o.t nll, and oft er tho revolution his rise booll.tle very r D.pid indeed. In March 1933 he becm:lO Chief of tho ?oli tioal. Dcpnrtuent nm the Gestapo . \·ro.s set· up in April, Hir.r:Uor booOl:dng its chief. In -•pril 19 34 ha was made chief of the Gcsto.po. f or the whole of the Reich, vmioh oor.lbined praotionlly ell those forces. In June 1936 he rro.s T.10.de chief of tho -.mole of the Genf!E:U1 police:~" · . :

Hero the prbsecutor intcrrup~ed:' seying thnt he did not think the Cour~ had aey evide.nce of· l\l.l thi~ . ·

Col. Smith r~plied th<>.t he wns".only quoting frar.1 a b ook I have got much wns issued to Mili ta.ry Governrncnt by Hie Majesty's Government".

" What it comes t o is this. In due courae by various stQgee Him:U.er boc~ . first of all head of the ~olicc, including tho Gestapo Nld SS, and in 194-3 he bccauo Minister of tho Interior. My point is under the Gcrmo.n arrangement re could issue o.n order which ns such h(Ul the f'orce of ·l aw. That was r einforced frot:l the other point of view by a very important l aw of, I think, JunQ 28th 1935. I ru:i not sure if that has been -:>ut in ol' not. Th.nt put the GestQ.1>0 and, in fact; all police

. aot:l,vities beyond th~ reach of the law insot'ar as they vrere of a political · nature. The pr o.cticnl r e sult ot that was no police action (and the '10rd

"police" covers an ir.Jnenso lot in Gerr.w.n) could be challenged in aey oourt; -neither could it be questioned by neyboczy exoopt a t the peril of his life. .Apply tha t t o tho nost ir.\portant thing inthe charges, the gas

. chamber at Auschni. tz. If you ·ask me t9 produce· a lnv1 loealising the g:i.a chambora a t Auschvd tz 1·.nd Bel sen of course I could not do it. .All tho.t was needed was an or der fran Hir.Jnler seyil'13 "Have a BllB chamber". II Tho.t order was a ln;r which every . Genian had t o obey in~ofar a~ · ~ ~ conoornod him. . . . . .

Colonel Backhouse: "I do not uant t o interrupt J:\Y friend• but I do not think. this law is in. GcIT.".t-.n l a.77s oor e put in by one of' 1-q :friems and t hose laws ·can, of courso, be rcfe~red to, and one is in· a poaitibn t o base an argw:icnt on them. If, . hor1ever, Gc:rman l ims a.re t o be produced

. out of the · bag, as it were, 71i thout the l n;1 beiiis quoted b':-1 t merely Col. Smith

1 s ~aning of tht: law given it is going to nake it very difficult

. indeed. It doos not ap9ear, so f t.r as I oo.n see , t o bo o no of .the larm which was handed in nt o.11. If Col.Smith W'ill undertolce to give me a copy of' t he l aw. aftcnmrd.s I vdll tako no objection to it being quoted withC!llt being pr oved. But if he is merely going ·to give his views. on certain l aws m. thout putting th~r.t in I think it will make· things very diffioul t. ·"· · ·

Colonel Smith.: " Tl}e . substance of it is that m action undertaken by tho Gestapo or ·by ai'\)' i,X>l.i oe, insofar as it ha;t a poli tictl Qharact er, is subject to UJ'\Y control of the oourts. ti . . . . ,

Oo+onol Bl.\Ckhouse :' "I am. no.t c ol)tosting that that was ona.oted by some l aw at Saile ·tiJnc. I"' l\ t any rofo I f Ot' the DlOJD:mt. Tha t iS rather a ·different proposition to the -c>no which . Col.Sr.Uth was putting. '.!ha t isl\my I should like t <? have the l c.\t in front of m."

f ! . , , i

Colonel Srn:L th: · 11If the prosecut~r will agree \'ri th r.te ~ far as that is OQnccrned· I will pr oceed t o deo.1 rf;lth what I put forward a s Jl\Y O'l'm

inference and not quit e f~6m tne. t ext books.

I · ha~c no\7 the t ext of' it i n English. I vti ll , in order no t to embo.rrass ."tho pr osecutor, put what. I h...·we to Qey next in the f orm of z:ty oWn i nfer ences. It is not disputed thnt tro Gestapo and, in fact , nil

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police aoti vi ties, were exempt frCJCl control of the courts. No cor:q>laint could be put before any court in r e l o. t i on to wh.::l. t thoy did. It will o.lso not be disputed, I think, th:\t .under the German constitution thor e was a .delegation of legislative power t o ~a.oh ot those chief cor.r:iieears within tho ·zone of his activities. Fra:i thl\t - and this is J?\Y own infcrenco -I will say tho.t cwryom '7C.8 bound at his own peril to obey o.s l m1 al\Y order given by the compet ent authority within his dopartr.tent. Applying that t o the particular case of the gas ol'wm>er and ot~r atrocities what it raeans is this: If Hinrnl.or s o.id a gas char.lber '\18.S t o be erected he did not need to po.as a s peci nl la.~ for it. Hi's order was su:ffic1cmt, and everyone concerned had t o obey it. That 18 ey proposition and r believe it t o be a perfectly sound one. What it leads to ie this. In the oaae of the average Genr.n · it iro.s impossible to have the lc:ind of conflict ;lhioh might arise in England, where a r.nn i:d.eht queotion the order at hie superi91' otticer am sey-:"Youaumot g:l.v~ r.10 that order under the J\n:\Y .l\ot" , and so on. An order as an ~r is pertoc.tl.y legnl., and ns I hnve alroo.dy explained when dee.line with oooupiod countries, where there is a conflict between the internal. lai7 and tho international lc.w the individuo.l. must alweys obey his internal la\1.

I w:l,11 Just bring in soce specific rct'orcooes to the coooentro.tion oar.Jps in genernl. I rua quoting now fl'OJ:l this Basic Hrunbook, a.00 if the Court '7ish to see it I will place it at thoir disposal~ It conto.ins on page 152 a short section dealing with concentration c01.1ps. It explains their system of ndministration and, as fer as I can see, it comes t o this: that the Gestapo are responsible for arresting people and sending them t o the Clll'.lpS 1 o.rx1 the S.S. ~ reSEOn&ible f or the guarding C.M the internal adtd.niatro.tion of the oami>s. '!hat is the .gencrnl picture I derive froc this ~ction and others in tie book. · '!here is one ,p£'.rograph I am going to reo.d rnthor r.ioro po.rticulnrly, because it has a direct bearing on ltr~r 's case."

The prosecutor objected saying thc.t the Basic Handbook could not possibly cooe b ef ore the Court as po.rt of a lcgnl argument.

Colonel :Be.Qkhousc continued: "If J%\Y friend is tl\lldng about l egal mnttors then I M.ve no objection, but wo are now getting on t o faots. :t kn:>'7 all about the Bo.sic &ndbook, and I subt:dt it is quite \'ll'Ong t o put it forward aa evidonco of \7hnt hc.ppenod in oonqentration camps. I hc.ve no objection to l egal matters, but the BMic llrunbook is noa a leglll book at all. It consists of a. series of fo.ots ws t he Military overnncnt kne\1 them before we evor came into GeI'DC'.ey at all. 11.B a matter of f not, thcro ore a rrut'lber of l v..t er editions of ccrto.in po.rte of it which wre put out separately, but this was m-1. tton before we over c e.me into GelT.Wl\Y. Really I do not think this can be t :lken as the f aots of concentration co.mps, other 'l'd.so ~ have been Ootn.!.'letely was ti~ our tine."

Colonel Stiith: 111 :111 in the hnnds of the oourt with r egard t o the.t m'l.tter."

The Judge ·~dvoonte: "l understood that Col.Smith was trying to convince the court that no wnr crime had been oonr.d.tted in those c o.sea. How far he is allowed t o quote that o.s supporting his arguraent is a mo.tter f or the court. I suppose if he so.id: 111 understand that concentration canps were run in the following way" tho court would ass\.UOO t ho.t thnt was his own view of it D.nd no more."

Cclonel Backhouse: "l have alwcys understood when I argue l aw before a court that I must take JT\Y facts c.s proved, and I must not start quoting f acts tha t have not been pr oved. I cnn use ~?lYthing for o. legal arLJUr.V!nt but I nn.tst not start quoting facts th.-i.t crumot be brought out in evideJX:e

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i~

t

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a t o.11. I ru:t only tt1.ld.11JJ exception, . no.vi> thp •ttzy we goimg on to J\'hn.t are all~3ed to be f n9ts, as t o how donoentro.tion camps nre run, I 'thought

. ~·re bo.d beqn provinc for o.bout t~o lo.st (jight woe~, nnd I thought r1e had quite enough evidcnQQ bef~re this court as ·to the woy they wore run. I think it is· wrong l'o~. f.\Y., :friend in presentiM .n lego.l argument to refer to

. f ncts ooritilined in f.'. J)661c which is rtot bcf o're the court, aw;d i7hi ob has ho .. logril force ' Whatever; He i'lust confine his etc.tements to the facts vlbich have· been proved bef.o~ tho court. · · ·.~o ·infc~ence·s · he likes to draw fran thoin and the •U>.vr· ~pjJ.ying ... to. theJtt ,ftx:~ iji~ ~mtter·, but sur.ol.y ho wst not refer to facts · Yihich ·nre cont81no'd in l1. baMbook which is not before the court.

. . . Kramer and vnrious other people h.nvo told ws ,p:nr cpncentration Oar.PS

·: wero run, and Jl\Y friend tIUst {l~c'ci;st that or produOe· different evidence. Tho views of Our O";?l'l M:ilitc.ry G6vornment on thc'waY Concentration comps wre run before we ovcITnn GoITllli.ey do not nppcnr to ext to be pr0per , matters on ilhich to base nn a.rgumont • It J:l\18t be baaed on the evideme prove(l in the case."

Colonel Sr.iith·: "Pcrhnl_>s I mD.y jus.t point out that under .hrtiole 8 ot the R~gula.tione the Court hns a. P.rl'.otico.ll.y unlimited discretion in the matter of evidence and the Oourt 'r.!r..V r eceive o.e evidence ot the i'ncta therqin stntod aey di~ or letter or other document o.ppcaring to oont~ _ · informo.tion r elating to the charge. 11 •

The Judge .i~vocn te: 11 But , Col. Srni th, you o.re r co.lly in tho poai ti.on of gi~ng evidence , o.rc you? 11

• • '·

Colonel Smith: "No" •

Tho Judge _\clvocnt~: "You~ really a dotcnd.ing ·o1;'fi:cer .,~d.dre!!eing tho Court on the l aw upon .tho fa.eta which nro before the court. · ' · · . . Col. Smith: "Ye~, -~ agroo entir ely; I · l'~ speaking from ·the bar ona not f.rom the . ~tness .box." · · · · -

The Judge .. c.vocnte: "Tho .Couzct f eel you o~t only to ~fer to ta.eta ··· ; Y/hioh h4v~ been before . tho Cburt but you can elaborate ai\Y queetiona ~

l .&T1• l thlnk that dqcument ho.r(Uy OOlneS within : e\ride~ af facts I '

9oncorning· concentra ~on crurps. " · ' · ·· · 1 • • '- ,. i · ) . ""' .. ;

:. · C~loJlel: ~mi.th: j,~ have; ,1,)Ut 11\Y nrgumcnt. It really do~a. ~t ~much difteren~·~ ~o me.. I shfUl .use it . to rofresh 'llfi meJDQJ:Y · rath'r t}'.wl state lt as a~ n~thority. · . . . ·•. I· . . -·

:t;f yo~ look a.t Krruoor's ~vidohQe in this case· in 't!he tro.riscript, you. will find th.a~ ho l~e emphasis upon the fo.ot th:.t all the decisions on matters .of policy, inal uding the gas chamber tor instance, ·came trom above; th.it he wns a more ac'lJ:lini et~a~or who oartj.od on the routine work of the camp a.nc1 thr.t such a quc sti<;>1i as to who was to be put into th~ Cl;Ul?P or taken out of the calllp, for death or for e.n,y' other · p~Ose·, l~' . ,. outside his power. ··

That is Kramer's own evidence a nd it is not, I believe, coz:itrad.icted .;.nywherc in the evid~nce so fro- c.s I have reo.d it, , I would e,ubmit to . you upon the facts = .J~ ns ll\Y friend a sks m t o do -- that · that"ia a correct infer ence t o be dravm fr01~ t he evidence put bet ore the Court, nm tho f act ~t it is corrobor~ted by the document which I was rending ctoes not in oiiy sense dimi?lW tho va.luo of that as upon the faota shown.

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I will subr.dt tho.t upon the evidoncc which M.s been put before too .Court thnt the corrmando.nt of the OaJ'll!> held n very hw:lble rank indeed, equivalent of l-\ car>to.in, .nnd, . 0. fortiori, cl.l . the people under him were nothing more than the humblest kind of a.dminis~ro.tora. At J.usohwitz, o.s you know, Krruoor vms oorely the ·hoc.d Qf one eootion <?f this va.st ·comp and l\ll the big decisions wore taken outcside him and over hi.a hend Md ho could ~ ~othing about it~ · .i\J.l I. would say upon the book is the.t it sooJ'JS to be borne outj but' ... o.s it o.ppoars t ·o .bo no more than n rctorenoo book I will not put it forwnrd ·as an authori\y it Col. Ba.ckhouso c1oos not lilco it."

3. The Defence of Superior Order.

·· " Now I ·SD ·c~ to Jl\Y last point, thi.8 so-called defence ot superi<XE' orders. I say' "so-called" because I think it is rather ~ misleading · description of thct defence.

I no now eoing· to o.sk the Court to look at the »i,m1al ot ll:ilitnry Le.w po.ra.graph 443 which ho.a been runended very recently in a re.thor aie":ifico.nt wey. Paragraph 443 begino by ·a~i •Tho noro it\lartllnt viol ations are ·the following" -- then it runs along for r. dozen lines or ,no~ an:l thiin :f:n the original edition Tihioh is before me it goes on to aay· "It is 1.m:iortnnt, however, t o note that DOmbers ot the l~d IPoroes who ooi:mi t such violt-.tions of the recognised nil.es ot wnrfare o.s · aro ordered by their govennrnent or by their oOIJl".W¥ler, ore not war oriminal.s and 9nnnot therefore bo punished by the cneJ'lY• He ~punish the oftioio.la or conr.ianders rosponaible for such orders it they ·taU into his hams, but .otherwise he mL\Y only resort to the other meana bf obtaining r edress".

That was hOw it dood untill!.'.ot yenr, nnd I think in April it wns alterea:· The effect ot the alteration is not to dostroy but greatly to water down the so-cnlled cletenoc ot su!>Qrior orders. I am going ·to eullm1t to the Court that tre or iginal t oxt wna ri~t, tht\t the amendraent is wrong, am ns I have o.lrcat\y explained tho Court is its own ~dge of law and is not bound t o tnke it fr0&1 tho Wl'..r Office, Privy CoUno'il, or fU\Ybcx'zy' ·else . ·

The original text which I read o. moaent ego is inire~ae ~el'!lent with the .limcrican Mamw.l.. In pnragro.ph 34-7 ot the Jimrioen JlcinwU it is so.id "Individuals of tho armed forces w:l.11 not be pt\!d.shed for these oftencos in case they nrc cOJ'iJ:d. tted undor the orders or aanotion of their government or com:w.nders. The comno.ncera orderinG the oonmisaion of such acts, or under '1hose authority they are oomn:i ttod by 1;heir troops,

·may be .punished by tho belligerent into ;~oso hanc!s they 'fl8Y fall".

So · until .A:;:>ril of lo.:s t year our Mnnool wa.s in oxact agreement with ~ho American Manul'.l a:Jd, I Jn..'\Y~dd~ 'With ·~· others too.: · I will submit thn.t that Wl\S oorr~ct and it wns in acoorclance, I think, with our ordinary experience of the necessities est milito.ry discipline. Tho first effect of the nl.torntion is t o throl1 us out of step:rr ith the Amerioans am. with the ruloo of other nrmies as well nnd I submit it is most unfortunate thcdi the wncndroont was nnde, I think, in lLpril, 1944, a t o. . t:iloo w~en v1~ crime tri~s wore in o.oti ve prcpnr,.tion •

. Where is the·'authority for the runemment? °The original text Wll.8

that of Edmunds a.nd Oppenheim in 1914. J'{ow Professor Oppenheim didd in 1919 and his book went through various editions under various oditora run the lo.test t ext ~1hicp has been incorporated into the Me.maaJ is taken practically verbatir.i from the lo.test edition of the 2nd Volume ot Oppenheim. N0w it is al.weys a d.an8er ous thing, I think, to olip a. little bit out of a book without reference t o its genero.l context in the whole book.

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I do not cxpoct. "..ho Court to roc.d tho whol e of Professor Oppenhoim 1.s t-.7o volur:ios or his other .,·;ri til18S but I think I D-"'.Y Sey this. In· the book ~s n y,holc he oointnins ver y stroncly tho dootrino of the Viennese school, in Vlhich he \1::.s brought up, 1:lu'.t Intornation.'\l L.'\w hl\S M inhoront superiority to r.runicipnl lo.'7 ~1 mere tho two nre in ooii:t'liot ru.mioipo.l l ar: nust be richt. If you were to ' rend Dr.LnuterpAOht o.t l enath - as I hnvo clone, I l'J:l l\fro.i d - you ':?ill find thl\t Dr. Lauterpa.oht who wns o. very t-.ble n'Ul indeed docs T.lD.intain thnt c1.octrino which ie oonr.ionly known l'.s the doctrine of the Viennese school in which Dr. IAutorp~oht ns n young man vro.s bro~t U?• (?) ·

Sor.ieb .. ><.ly in the Wr.r Office or elsewhere, I think, who found himself. severly bloolooc1 in ,repm-ine wnr criminnl trio.ls - I om iwroly guessing now - by this i)ilrC1.Crnph of tho lL'\llual discovered in t he lo.teat edition ot Or>?enheim sorocthine uhich sui tod him muoh better so he out 1 t out Md ?Ut it in in orc1or t o T:k'.l.kc tho pa.th ensicr. l.s I scy, thP.t is to C\ certain extent euessrrork bl.it it is nt lea.at a roo.sonn.ble euoaa in viev ot tho ·10.test amonc~.l<mt . ·

Surely it ·:1111 b o most unfortun..--.te if we oomemn people in oo.aoa ·nhero tho G.ef en cc of sn:,,.r.rior orders is pl eo.do<.1 by virtue of on amendment to our ovm :Mam~, tho toxt of ,-,hi.ch carries no authority :outside 'this country 1 n text :it variance ·11i th tho Ja100rico.ns and others, nnd n chnrge introc1uccd in i' .. ;>ril 1944, and broucht up now iri n onse in ;7h1ch tho charge shoot begins in October 1942. If so you have there a. vory bac1 oxamplo, you nrc convictil'l[; a man on ~ 1944 text for off onces which relato to 194.2 or 1943, o.nd a tc.Y.t which is ~drn.i ttedly in conflict both with our own rensoncU. view, 0xtcndinc u~ok fer a ,vory 10118 time, o.m w:ltb tho vie'f'B ot other nations. ·

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I subr.lit ii i s qui te impossible f or the Cour~ to accept thll.t revised sentence - it is j i:.st 0ne s entence, I think - as ~ aoourate ·atatamont tit the l nw , c.r.<'I. I submit tha t ~ l exr \7l".s oorr...:ctly sto.ten .ns Edmunds .o.nd ~ponhoim sta ted i ~ in the ol r". ec1ition, which hllS ·served t or Dal'\Y ye.ors. .. .

So much for t.hn.t ;>orticulnr t ext. It \Vould ~ford ~h~ nioaf · . .. . . . , . . . ' ' l egi ti.mate cri tici!!m for o.ny decision in whi6h ·the detenee . of· S\l'Orior · · · ardors •u~s °o):t'ot13l:t up if thA.t t ext mis relied. upo'n in the 61rc~~nnooa ' · which I ?'oint9cl .out . " · · · ·' · · · · '

The Judge .• C.vocr,&e: 11 Do you ace the foot-nota? Do you quarre.l w.l..th .1t'lJ1 ~ " . . ... .

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Colon~l Snith. "I do not t hink the footnote D.lters it, does it? Aa a r.ntter Of f.~c-t ~ hnve not Jll}' text before !De at tho mCment. II ~ '

The Judr;c i1.o:voonte : "Vlhc.t it snys is this. It r efora to tho 6th Edition of Oppenheim, which you have referred . to, nnd then it aeya: "The statement rlhich a.ppu~cl J:)rior · to this nmclldment" - tha.t ia the one. which ia crossed out- "was bnsod er. ·the 5th E<liti on of Opponhoim1s Intorn..'ltional Law, Volu~ II a t y\;·e li-54" . Then it eoc~ on - I do not

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lalov1 whe ther you a.groe or ~-~TOG} i~ith it ·- ."v1hich was , however., inoonsiat<;:n1; Wi:th th,o :v:l.9:w ot mo3t vrritc-rs upon the subject , nnd e.lso with the decision or· ~ho ceiWm Suprc~ Gou-rt :'..n the . c.:i.se of the Lla.ndovory Castle", and tli0n it giwa a roforenco. I do not know. v1hcthor you qWUTel with that?''

Colon~l ·Sm:ltil: II Thank you ror b~nging it t o .rrt:I attention. '1 thi~ I . Jmlst deal vri th it. 11

Tho Ju(lge /~voc<:..tc : T'fl'.) thing I want to point out ia that it r.aalcea a stntcmont that most authorities agree,

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Colonel Smith: "I wn.s only referring to officio.l manuals and not to indcpena.Cnt wri ter.s. 11

The Judge :l"1vooo.te: "I have drc.mi your a.ttention ·to it ~nd if you wish to nddress the Court will y~u do so? "

Colorol. Smith: "Th~ officicl. r.innu,.tls are e enor:.U.J..y written either by or with the consent of rnilit~ ~n, whcreo.s the independent 'mtors soy \1hat they like. Our official rnE\.nunl, of course, is pnsscd by tho \7er Of'tice and the Gcnnnn one also.

; . . . , . · · ·Colonel. Backhouso: '.'My 1'riend is ref erring to the German one, and I hope he

is ~ot inteJ'.lding to lco.ve you vr.L th the il:lpl'ossion thnt the GermA.1'1· ono disagrees ·wi;.th tl:le mnnunl., becnuso the Gonru-.n ono is entirely .consistent

. '7:i..th our rnenu£\l. "· •

Colonel Smith: 11I hnve o. recent nrtiole by Lnutorpncht on internntioml law o.nd what he soys is: "The Gc?T.lan coa.c of militc.ry lD:.1 h:1s long provided tlut the subordino.te is lia.ble' to be punished a.s o.n accomplice if ·.1hen

; .. obeyine an order he knows that thG order involves a crime or misdcmoanour." ,Ii' he kno\7S thnt involves oX"ilme, but the.t I do not think is vory substan-

~ · -~ially diff'.orcnt- from O\ll'Se

Lo.uterpa.cht eoes on to scy: "According to the lo.w of other states, the · inmunity of :the soldier obeyi1'l{'t orders coo.sos if he lmows or ought to ha~ known of the unlawful. nn ture ~ the order".

I have got t o quote nll those in the light of \7hat I said a few minutes aeo. In the normal oasc the conflict V10uld not arise because the' order he wns bound to obey wo.s itself lnwful \md.er German Law. "

4.. Conclusions.

That,· I think, is the r eal issue involved apart frczi the fate ot the indiv:iduals in this pnrticulo.r co.sc. U..i.Jholding the authority of the law, whether it suits us or not at the present momont, whether it pleases the

. public or not or n.eybody else, to uphold tho cligni ty of the l~w as the law and to say firmly thc.t nobody who comes b0fore a British Court can be convicted unless the prosecution proves beyond all ~nner of doubt that he

· ':'; _is guilty under the law which governed the not at the t• it took place.

That is the ~ssonce of 1l\Y whole case o.nd every dct~.il is really hung upon that. I c~n sum up ey whole orgur.wnt upon that. If l can persuade the Court to o.grec with me upon thnt :t'un~ntnl principle I verily believe thnt this decision will go down in history as one of thoso great decisions whim from time to tiJOO havo adorned our legal. history 1 a decision in \mich great judges havo stood fast against all kirw:ls or pressure from the Crown, from politicians, from popular olrunour 1 and decided strictly in nccordance with tile ln.w." .

IJl, ANSWERS 'l'O QYESTIONS PUT TO COLONEL SMITH BY MEMBERS OF 'THE CCURT, . .

A member of tpe Court: "In your view did the Jews of Poland become full German Nationals after the Gernan occupation of Pol.and? 11

Colonel Smith: "Yes they becaJOO Gennan Nationals but not German citizens. The German statutes in this red book draw o. cleor distinction butweon the two and aeybody v.ho is in German territory is attested to German nationality but there is a. higher state, th.ere is tho GcnMn Burger and the B.irger citizen has privilcgos which a Jew or a Pole has not. He had got to be an J..ryan Gc:nna..n. I think that is ma.do completely clear by tho two acts of Ge:nnan m tioMli ty and German oi tizenship vb ich are here.

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'lbe Gcrr:w.ns have r.l.'lintn:fnoc1 in subst:.ncc tho old Gcn:-.an nationa.li ty l a.n of pre..Hi tlcr deys 'but they ho.ve ·au"iorimposcd U~)on th& old GeJ;Tjf\Jl . n..~ti<'nnli ty ' lnw a. Nurcr.lburg lo.w of 1935 ' ·.michcrca.tcs this .new sto.tus of Gc~n citizenship, Burcer, which is a ;;irivilcged olasQ azoong GottWl ~'\tionnls. The book is b efore the Court nnt. it is £1.11 in there . " . . The Mombor: 11Jews in concentration car.ips ho.d to wear the star of Dnvid all the time, hl-.d they not? 11

Col. Srni th: "I believe tha t is so. 11

The Member: "Jews \7erc not allowed to hoist the Gcn:\llll flag?"

Col. Smith: "No, they ·;rerc not. There is Mother lAw cnlled the .Flag Law vrhich soys thnt J ews ha.vc no right to fly the (fcrr.vm n~'!. 'Ibero is n whole bundle mf those GonJM Burger laws in this red book."

Another :Member of the Oourt: 11Not only the Jons in the comps hnd to war the s"t;nr of Da.vid but the Jows wo.nderine a.bout the streets had to?"

Col. Smith : "Yes".

The Member: "Why s ho1.'.ld they be c onsidered Gennan nntionc.ls if thoy: did not do n s other Ge:nno.n rw.tion:-.ls?"

Col. Smith: "The point 6t bei~ o. Germnn n11.tio11£4. is it makes him aubjoct to nll the liabili tics of thC Gcrmnn but 1 t docs not give him tho priyilogos of a. citizen. The Jews 39t tho worst tCf it both ~s; thoy were linble f or all the cb.lties that · tho Gcn.\lllls c ould impose upon them but tl;ley .did not BC~ OJ'\Y of tho privilegvs. I.t ·.ms dot~nito;ly a ,~ul>~ot rn~e D.nd thn~ I think is wry clct'1'1y,. born~ out in those· tvb . lo.wa~ ·. '_ln one co.sq the ·ol d German t\~tional:itY lt\w is ·oon.tirued • .. '.l'hf\t '70.8 qµite a rc~;fonablo law. very much like 9ur oV(h· b~t . :then they~ ~liperlmpos~d~oil: 'top of thr-.t the ci 'f;izonohip ll'..'7 ot, 1935 m~ch . oroatcd tho prirtlcged" atdtus of Burger· ,n1ich the J cu· could nev.er hope t o attnin. · -· ·

l • , . . ~ • t • • ,. • t.. ' \ i . · .'rhnt .wns, of c.ourt:e , .. corrled'out by dozens of other lAws, for ·

exrunplo the l D..w of mo.rriage or the law f or the protection of Germ.--.n blood e.nd. hono\11", the flng l nw '7llioh I mentioned a moment o.go, and dozens of other lam rlhich c.11 hit~ · the Jd1s one wey or another, But they were still Gc~1n ~tionals lllld that mndc it impossible, ot course, for any other Stnto to truce n friendly interest in them. It' was nil ingenious and devilish f)yatcm. "

Another Member of the Court: "If tbcy ;rero Genno.n Mtional.s why were their papers marked 11 St~tcleos 11 ?" 1

Colonel Smith: 11! ruri £\f'rnid . I am ' a i~:~tle out of Jl'\Y dept)) hei:e. Was it not marked th~t VI03 in the' cnse of a Gonrnn who left Germa.J\Y rd.thout tho permission of the Gcnmn government?"

The Member: 11It vo.ried, :r beliovo" . .. . ~ .

Col. Smith: "l think, if ± rrv:i.y s,;, so 11 tho word "Stntoless" wo.s only put on those imssports in cases where the · J ew hl\d. left . Gel"m8.1'\Y wi thoµt , pe~esion, becnuse then he '\"Ould cerry no identity documents and he would bo dena.tioMiised by Gonnnn lnw bconuse there wns a l nw which provided tar that~ lfe · woulU. b~ qui t o li t crnlly s:to.tel~ss and s~bod.Y o~ . other who issued him vrith a ~asspor,, either in England.or in Ft-~co or in Belgium, would write the word 11 Stntoless11 u :)Ol\ it, but ff ho left Ge~ without the consent of the Ccrmc.n government I am pr etty ' sure

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h~ ~-rould not carry n pnssport of thr.t kind.

"Colonel Bnckhouse: 1111.s a nnt t cr of f:-.ot tho.t is not so, but I nm ofra.id I CJ!.nnot give ovidcnco on it f'IIJ' moro thon Col. Smith. . It . is put on by ~o German authoritie s whon they · diet f\110\7 a. J C':t to lco.ve ~" ... .

.A Member of the Court: 11 I d.o not qui t o so9 your a.rgument nbout the definition of n vmr crime. In thoso c'l"\YB \7hon rre la'..mqh total vrorfare betV1een no.tions everyboc\Y is involved in tho war - ·:re hive all a.greod .to tho.t - and theref or e I cnnnot soe your nrgw.1cnt about this mir crime buiness." · ·

Ool. Smith: "}tr o.rgwnont is sir.tpl.y this, thl.\t theso orimcs had nothing to· do with .the oper ntions of tho Wt\l' r.nd the best pr qof of that is that ·they began 'in pence ti.loo and •~"Oul.d hnvc continued after the war was over, but that·, ·.if I f.1t1Y sey. so \"tith respect, is a. oottJlctol.y different mtter from who.t• I think is in 'your mind, tullOOly, the distinction between ~ombn.tant nnd non-oomb~t~nt. I qui t o ngrco thll.t the circuz:ustnnces of modern rra.r make it much more diffioul t to drar7 the old distil'M)tion botwoon oanbatant and non-cor:ibr-.t o.nt in the sruil0 \7a:y o.s it rraa done. 1hnt, I think, is o. corn:, l otely cliff erent matter from anything we are talking about here in this Court. Would you c.groo with~'?" . '

The Member: "I co.nnot yet, I nm o.froic1. 11

.· , Ooloml S1:U th: "It se:ons t o mo to be on entirely different matter. It

., . . is i#ol.ovnrtt to 'us. ·.vhethcr the ~rpotrntors i70re combatant or non:. . .. ~~o.tnnts. The ir.\:)ortant ~">oint I w~s trying to make is thit wha.tover

wruJ done ih these camps hod nothing t o ,10 n i th tho operations at the war b~causo it. began l ong bef ore llJ¥1 v1oul.d ho.vo c ontinued long at.tor nncl, in foot, oonoontrntion camps nro continuing t od.c.y although thoy nre not oot¥luoted ~y tho: Gerr.Wls L'.J\Y -longor." ..

Anothor oomber of t ho Court: "l7ns not the r.lald.ng of V •weapons another part of the -rror effort?" ·

Col.onel Smith: "It ccrtc.inly ;.ro.s , but probably the tasks on which tho Wlfortunnte pco1,l e ·:;er e e:r.p~.oyod had Ser.lathing to do with the war effort because o.J.l wor k i s connootod ·,11th th" \'1n:r effort, but Tie nre not trying thea in connection 7r.i. t h the t nslcs on ·mich thoy vroro ecployod but of ill trea.tr:.ont of thc:ra in the cru:l!'B, ~·thioh i s entirely another ~ttor,"

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