The Trial of Fritz Knoechlein - Knoechlein's Defence
Knoechlein's Defence
Amongst his mass of artifacts, Dennis O' Callaghan has a transcript of Knoechlein's defence at his trial put forward by his defence counsel Dr Uhde, a transcript of which follows below.
Closing address to the court by Dr G. Uhde
The charge raised against my client is quite clear:
He is made responsible for the shooting of about 90 British prisoners of war at Le Paradis, Northern France, on 27 May 1940. It is natural that this case takes a special place in the history of this war because of its particular importance. Since the war, and possibly also during the war, the competent British authorities have been trying to find the responsible person or persons. The preliminary investigations did not bring full light into the case, it appears to me, and the only man who, in the opinion of the Prosecution, was found to be sufficiently incriminated for the trail, was my client.
This is significant in more than one respect:
I know very well that the court is aware of these facts. The court will realise - when considering all the pieces of evidence we have heard during all these days - that people. now after eight and a half years, will possibly remember faces, incidents and details wrongly, with difficulty, or not at all, and that they may even imagine things as facts which they may not have seen at all, and that they will say so in good faith. These are psychological facts which I need hardly go into in detail.
The amount of evidence collected for the Prosecution in the course of the years, is relatively small as compared with the evident extent of the investigations. But that evidence is grave. This the Defence has understood from the very beginning. After the accused, in August of this year, was informed of the charge and of the incriminating documentary evidence, the Defence therefore attempted with all means in their power, to collect exonerating evidence in the course of the very short time available. In this we have succeeded only on a very limited scale. How can it, for instance, be possible for an accused who, after the time in question, took part in countless fighting and battle, to remember the names of his fellow-soldiers who were with him on that particular day, a day of which he perhaps at first had no recollection at all, after all this time? It was more or less incidental that we have all succeeded in producing two members of my client's company at that time as exonerating witnesses. The reason is that the accused was not pres place of the shooting at that time, and did not know anything about it, and with this establishment I have arrived at a very important point of my explanations, since the Defence is going to prove the assertion just made.
Or in other words:
It is my duty as Defence Counsel to investigate this qustion: Has the prosecution succeeded in proving that the accused can be held responsible for the shooting of the British prisoners of war criminal from the point of view of Criminal Law.
In this I surmise that it is not decisive whether he had possibly ordered the shooting, taken a lead in it, or otherwise participated. No, it appears decisive only whether, at the time of the shooting, he was present at the place where it took place, or whether he knew of the shooting and did not prevent it. Furthermore, the question should be examined as to whether - provided that these first two points must be answered in the affirmative - the shooting then was legally justified for some reason or other.
I would, however, state beforehand that I shall attempt to submit to the court that the accused was NOT present at the place of the execution, and that it is only a secondary matter and a minor point if I examine the further question - just in order to be on the safe side -, whether the shooting can be legally justified for some reason acknowledged by International Law. In this I take it for granted that the shooting did take place. In my opinion the proof of my client's absence is found:-
In the following, therefore, I have to deal with the details contained in the said statements of the witnesses.
The witnesses Pooley and O'Callaghan, on that day, went through an ordeal which seems hardly believable and which they certainly will never forget. Since, however, one detail is important for the Prosecution to prove, a details that my seem immaterial for these witnesses, it must be examined whether the things these witnesses have said in connection with this details, are sufficient or not to prove the charge of the Prosecution. This detail was whether the two witnesses, at that time, saw my client standing at the entrance to the meadow or to the farmyard where the shooting took place. Pooley mentioned a group of commissioned or non-commissioned officers, of whom some were standing quite near him. He had specially noticed one man because that seemed to be a commissioned officer. This officer, he said, was wearing a German officer's service-cap on which there was a silver cord to be seen. For the rest, the witness' attention was absorbed by the guns (so in his opinion there was not one gan, but two!) From the fact, he says, that the machine guns were being mounted, he concluded what was going to happen to him. Upon the question whether he would recognise this officer if he saw him in court, the witness replied, pointing at the accused: "I think that is the man. So far as I can say now, I should say that he was present." The time of this incident was about 3.30 pm, perhaps a little later. When they were taken prisoners it was 1 pm. In 1946, he says, he went to France, on his own initiative and at his own expense to see the supposed place for the purpose of satisfying himself about one or two points. He also examined a wall on that farm and found marks of the impact of machine-gun shots. Nearby there was some sort of small chapel. When, in 1946, he was confronted with five people - he does not remember the exact date, that means whether it was before or after he gave his sworn deposition - he said that he thought he recognised one of them, but he was not quite sure at the time. In his written deposition he mentioned a strikingly large hook-nose of the officer in question. Now he can only speak of a striking nose, he says. In 1946, he says, he was in a bad state. The officer's service cap was certainly not a fourage cap, he says.
The accused told the court that the confrontation with the witness Pooley took place on 29 Oct. 1946, whereas Pooley gave his written deposition not before the 6 November 1946. In this declaration, too, he still declared that, apart from other features, he noticed a strikingly large hook-nose in the officer in question which - as has been established - is not true of the accused. This, after all, is significant. The description he gave of the man in question shows that even after the confrontation the witness was exceedingly unsure of himself, or else he would have given a different description of the accused after this confrontation. After all, the accused does not have a hook-nose. When the witness was shown the photo - Exhibit No. 4 - he said it might have been the officer on the right. That was the former Lt. Col. Bertling, the Regimental Commander. On other photos too, where the accused was shown, the witness did not recognise him.
The scene with the uniforms, when four men in black SS officer uniforms were, one after the other, marched past the witness, cannot be attributed much weight to, as the witness really had ample opportunity, previously to have a look at the accused during his interrogations by the Learned Prosecutor, the Defence Counsel, and the Court. Had he not recognised the accused then in uniform, surely that would have meant a considerable lack of intelligence. Besides, the witness could state hardly anything about the clothing and the equipment of the officer, with the exception of the officer's service cap with the silver cord, and the hook-nose. He could not even say whether the officer wore a great-coat or not.
The position of the place of execution is determined by this witness on a place where - as we have heard from the witness Capt. Long - the batallion HQ was.
These are only some of the most important points. I think they are not sufficient to establish that the accused really was present at that time. If, on the other hand, the witness believes to recognise my client, whereas he was not quite sure in 1946, and if he, on the other hand commits himself to that this officer was wearing a service cap with a silver cord, his statement is bound to lose weight if it can be established that the officer in question really did not wear a service cap at that time.
Apart from my belief to have proved this by my client's statement as well as by the evidence given by the witnesses Fries and Backwinkel, and also by questioning some prosecution witnesses, Pooley's statement becomes still more doubtful by the evidence given by Col. Scotland. For the latter has declared that Pooley's mental state had suffered owing to his physical state. It had not even been possible, Col Scotland said, to summon him before a court. It can therefore be assumed with some certainty that his memory and his capacity to give evidence, were prejudiced by this state. It must also be concluded that a statement given two years after such a confrontation, will lose weight, even if given in a better state of health. The argument given by the witness that he did a considerable amount of thinking over the case, can hardly suffice to satisft a reasonable demand on the certainty in his recognition of the accused.
Of course nobody can be blamed for not remembering the details of such an incident. That is not only due to the very long time which meanwhile has elapsed, but also to the fact that the incident probably happened very quickly. One must naturally put oneself in the man's position who is going to face such a situation. A man in this place - as Pooley has expressly said - will pay far more attention to the heavy machine guns which are going to shoot him, than to the Germans standing near. So, when, considering such statement made later, one must proceed with the utmost caution. I would therefore put it to the court that no proof has as yet been produced by the prosecution in the statement made by the witness Pooley.
As to the witness O'Callaghan, things are very much the same.
As far as, to begin with, the confrontation of my client and some other men, as well as the witness' recognition of my client are concerned, the value of this confrontation was considerably prejudiced by the fact that the witness had seen my client before that. It is clear that - if he met him on the stairs inside the court building - he was bound to recognise him in court. But that does not necessarily prove that he would have recognised him if he had never seen him after the 27 May, 1940. But in addition this witness was confronted with my client in London as well, and still, this witness too could tell the court only that he was almost entirely sure to recognise the accused. I think a proof of the identity of the accused with the officer seen at that time by the witness, can not be founded upon a statement of this nature. After so long a period, so many mistakes are possible and even probable that we must look at these statements with the utmost caution.
In this connection I would mention one point though it is probably not necessary:
Public opinion in any civilised country will emphatically demand the guilty persons' punishment if their action can be determined beyond doubt to be a war crime. But this must not have the consequence that NOT the highest possible demands are made on the onus of proof. This applies to any procedure and still more to the present one, in view of the long time which meanwhile has elapsed. The proof must be beyond any reasonable doubt. This means nothing but that there must be such evidence as would silence any doubt in an observer possessed of common sense who clearly surveys the facts. It is exactly this question in the present trial that will of course, be in the court's concern. I am inclined to assume that it will be easier for me to point out to the court such reasonable doubts, than it is to the learned counsel for the prosecution to contest the existence of such doubts.
In fact there is, in the opinion of the defence, quite a number of such doubts in the evidence given by all the witnesses. To come back to O'Callaghan it seems strange that in the whole of his evidence he does not say anything whether he recognised an officer. It is true that now he declares that such questions were probably put to him. But the fact that he says nothing about them in his deposition, does not necessarily mean that he answered them in the negative. He was even shown a photo, concerning which he said that it might be this man. On the photos which I submitted to him and which were taken at that time, he did not recognise my client. He also said he saw my client inside the farmyard, that is to say behind the gate. In contradiction to what Pooley said - who was the first in the file of prisoners and who says that the gunfire started immediately when he had passed the gate - O'Callaghan said that he was about in the middle of the file and that the first shots were, in his opinion, not fired before all the prisoners were inside the farmyard. All these points which came to light during the cross examination, do not really serve to substantiate the statements of this witness. He, too, spoke of a hook nose, and we know that my client has not got such a nose. It is furthermore significant that the witness said that as soon as my client put on his service cap he looked as though he had a hook nose. If that is how a witness argues and if, on the other hand, we know that the accuse certainly did not wear such a cap, such statement can, in my opinion, not suffice for a proof against my client.
Finally I have to mention here too that Col. Scotland said that the physical and mental state of the witness O'Callaghan had suffered. This too is an important argument for the very great caution to be employed in the valuation of the statement.
The confrontation of the two witnesses in London cannot be given too much importance, because we have heard from Col. Scotland on the last day of hearing that nothing was put down in writing about the results of that confrontation. I have asked why then they were confronted at all, since the result was not used to clear up the case. As Col. Scotland admitted himself that he did not know who of his staff told him about the result of the confrontation, the declarations made by the witnesses Pooley and O'Callaghan do not furnish, in my opinion, and positive and adequate proof that both allege to have recognised my client at that time, quite apart from the fact that both admit that they had not been quite sure. One cannot say that today they can be more sure.
Undoubtedly the statement made by prosecution witness Emke is the gravest. That is why I have to deal with this statement in more detail.
First of all it struck me that his statements equalled his statements made in London almost word for word, as if he had learned it by heart. This of course could be a mere coincidence, if he had not made himself conspicuous otherwise. It was not without reason that I questioned him about details regarding his stay at the L.D.C. London and everybody in this court will have been impressed when the witness, upon my question whether he had been beaten, spontaneously declared that he refused to give and answer. Though later he tried to explain, in a roundabout way, that he had been treated really well, he still gave some strange answers even here, such as for instance that he had not been beaten directly. Finally he was unable to give a reason for his first statement. I mean for the reply that he refused to give an answer. The reason why I had to deal persistently with the question how this witness came to make that statement, was that all he said was highly remarkable. The witness knew quite well that he was the section leader of the machine gun by which the British soldiers had been shot. When interrogated about this case, it must have therefore have been in his utmost interest not to have been in command of this gun himself. Now then, in my opinion which will be confirmed by any soldier, it is something exceptional if a platoon commander suddenly takes command of one of the machine guns of his platoon, altogether eliminating the competent section leader, and returning the command to him only after the gun has been in action. The general usage rather is that the platoon commander gives the necessary orders to the section leader for the action of the machine-gun. Theoretically of course, a different procedure is possible, and Emke meant to explain that is platoon commander Petri often eliminated him in this way. From a military point of view, such story must rouse suspicion. If one considers that the "Totenkopf Division" at that time had been in action for only two days, and that of course everything had to be done to ensure that what the soldiers had learned in training, could now be put into practice in action, one may assume that theory was turned into practice, and not that in practice everything was dopne differently from the theoretical exercises. I this point I have relied upon the military experience of the members of this court, although I might have called two military experts to substantiate my argument.
Nevertheless, I must of course face the argument that in Emke's case things may have happened just as he maintained. But one must consider precisely the doubts of this allegation. Now then, if Emke declared in the witness box that he refuses to answer a certain question, I think I can safely say: there is something wrong in this statement. Really in my mind it is absolutely out of the question that Emke was NOT very much frightened of being accuse himself. The fact that he contested this, is so much in contradiction to common sense that a statement of this nature is no longer credible. Any normal man in his position was bound to be in fear to become involved in this matter, and he would therefore have to make a point to explain convincingly that he had not been in command of the machine gun that fired. His statement would have deserved more credence if he had not hesitated to admit that he did fear to be accused. As it was, however, he incriminated himself, I think, by the negation of this question, or he at least shattered his credibility. It is furthermore remarkable that he was unable to name the men of his two machine guns, although he had been together with them long enough. The reason may be that he feared to be incriminated by these men if they were found. Though I have not succeeded in convicting Emke of a definitely untrue statement, I believe I did succeed in rousing doubts in his statements. And the point now is only to decide whether what he said are the true facts or not.
The Learned Counsel for the Prosecution will no doubt plead my client's statement that he knew of no reason why Emke incriminated him, perhaps from a certain ill feeling. Besides, Emke himself testified that he made his statements quite on his own free will. All that is true, but still his statements give rise to further considerable doubts.
I think I have proved beyond doubt that on this afternoon the area of the 3rd company was on the left hand side of the road leading to Le Paradis. The two company members of my client's have declared that their commander was with them on that afternoon and that no order had been received to say that he had temporarily to transfer the command. It is, however, a general military rule that a company commander will transfer command to one of his subordinate officers even if he only leaves his company for quite a short time. Also the prosecution witnesses who used to belong to my client's company, did not know anything about the accused having left his company area. And this area where Knochlein stayed according to the evidence given by Emke, was the area of the 1st and 2nd companies.
I am sufficiently objective to admit that theoretically it is possible that Knochlein left his company and went on to the road to the place of shooting, a place that has not even been determined with absolute certainty. It is up to the court to decide whether in their opinion this theoretical possibility has been proved as a fact. I would, however, submit to the court that I think this so very unlikely that this possibility need really not be considered. Since the witnesses Fries and Backwinkel have stated that they repeatedly saw my client in the course of the afternoon, that the company was slowly but steadily advancing, and that really it was several days afterwards that they heard rumours about the shooting. I feel I must ask the court to consider whether these statements should not be given priority as compared with Emke's statements. Of course there is a difference between the defence witnesses and the witness Emke, in as much as the Defence witnesses naturally could not state the exact whereabouts of my client's at any minute of the afternoon in question, that means they were not able to give a complete alibi for him, whilst on the other hand Emke maintains to have seen my client himself at the place of the crime - apart from what he did there. This perhaps is the crux of the whole trial, for here the decisive question raises itself:
Is the witness Emke to be believed or not? If so is his statement sufficient for a finding of guilty of the accused?
To begin with: I cannot tell whether the court will believe him. But they will have to examine most carefully the above doubtful points of his statement.
The defence must admit that they do not believe him. It is really too unbelievable to assume that there was an officer who did not belong in that place because it was not his area, and who suddenly called "Fire!" or something similar, further, that then Capt. Schroedel who at that time was not at all in command of the machine gun, ordered "Free fire!" and that, upon the almost simultaneous order from Petri, the machine gun then fired. There is really too much reason for Emke to invent such a story to exonerate him. In telling it he gave military details which simply do not deserve any credence. Emke had to admit, too, that it was not up to Scroedel to give any orders as long as the platoon was under the command of Petri and, consequently, the witness Emke was under the command of the second company, that means under Loew. But if there are such improbabilities, there remain, after all, doubts as to whether the incident occurred as the witness said, and this bears on the entire statement made by the witness, including the fact alleged by him that Knoechlein was present at the shooting.
We must, furthermore, assume that the witness did not make his statement on his own free will, although he confirmed in writing at the foot of his deposition that this was so. The fact that he refused to answer a certain question I put to him, can only have had the reason that he feared disadvantages from answering my question. Such disadvantages, however, he could fear only if he, telling the truth, would have had to disclose something unfavourable concerning his treatment. So one must conclude that at the L.D.C. Emke was somehow exposed to pressure. In the face of such an answer, this assumption simply suggests itself very strongly to the unbiased observer. But then the value of a statement brought about in this way, is considerably diminished. If there is even one point in which the court has reasonable doubts in the statement, the court must not give it a decisive consideration. But the statement should at least have roused sufficient doubt to disqualify it as a foundation for a decision of the court, unless further absolutely sound proof be established.
Whether there are such proofs, I shall investigate later on.
It is also significant that Emke was unable to confirm the photos of the house in question and of the place of the shooting. He always spoke of a certain gable front, the two corners of which were taken aim at by the machine gun or guns. He also remarked that the house in question had been standing alongside the road.
Here, I would therefore draw your attention to one point: Now, after the witness Capt. Long has indicated the batallion HQ on the same spot where the place of the shooting possibly was, since he as well as Pooley used the small chapel or the image of a saint as a support to his memory, whereas the two places cannot possibly have been on the same spot nor even near each other, the locality - though not the fact of the shooting - has become quite uncertain. The fact that the lcoality cannot be clearly established any longer, just shows clearly how difficult it is to recollect or to call back to one's mind circumstances lying back several years and important for a later consideration which, however, at that time were taken no or very little notice of.
There was not only this uncertainty in the course of this trial, but a lot more of the same kind. This fact the court should take due note of.
The significance of the statements of all other prosecution witnesses is smaller than the one discussed above. The witness Sturzbecher has mentioned something in connection with certain points which the prosecution possibly will evalue to substantiate their point concerning a participation of my client in the shooting. The witness described to the court a meeting with Knoechlein at which Knoechlein is said to have remarked something to the affect that "these prisoners are mine." He interpreted this statement as if Knoechlein, when using the word "mine" referred to his company. The witness said furthermore that he had believed Knoechlein to claim these prisoners for the account of his company. We have heard that a company commander could very well be interested in having as many prisoners as possible to claim. This incident, therefore, does in no way support the suggestion that Knoechlein meant to do harm to the prisoners.
Moreover, the witness overheard an excited discussion between Knoechlein and the battalion commander, he alleges, from the room next door. But he does not remember details. He could mention repeatedly that the commander was concerned about his personal success. Following up this incident, the witness said, a report was demanded from the 3rd company. In this it was briefly said that the officer commanding 3rd company had given orders not to take prisoners. It further mentioned that the British troops had used dum dum bullets.
I think the defence has disproved that such an order was ever issued to the 3rd company, and that it, therefore, cannot have been mentioned in a report either. Some of the members of the company then must have known about it, such as for instance the prosecution Leitl.
This witness did not incriminate my client at all.
The witness Schneider was so exceedingly vague in his statements that he can hardly be taken into account as a witness by the court. No conclusion can be drawn from a superficial observation, it appears, the foundations of which are quite unclear to the witness himself. It is significant that this witness does not remember to have seen, at that time, an officer with a service cap. The statement of this witness was also remarkable because it demonstrated so plainly how difficult it is, after eight and a half years, to remember this or that person. This shows how very carefully the evidence given by the witness Emke must be considered, who alleges to have made far more exact observations.
The big part that rumours play in this case is not only seen from the statement made by the witness Sturzbecher but also from the fact that hearsay was frequently mentioned in this trial. All we can say about the whole incident is really this:
Now as much as before it is in complete darkness. And this darkness, as far as my client's participation is concerned, could not have thrown light into during this trial either. There has been, it is true, some light in some other places which, however, are of no import here for the question whether Knoechlein was present at the place of the crime or not. Nevertheless, certain circumstances cleared up are of special importance. If for instance, we know in which areas the individual companies of the batallion were employed after the fighting round Le Cornet Malo, then we may immediately assume that the company commanders were with their companies. That I need not explain to a Military Court, surely.
Now, if on the other hand there arise some new considerable discrepancies in the aforementioned determination of the place or the time of action, that means if the case becomes ever more complicated, it is still more imperatively demanded to increase the demands on the proof of guilt.
What, for instance, remains to say, really, if one compares the statements of the Defence witness Capt. Long - who surely is quite unbiased and well informed - concerning the time of surrender of the batallion HQ, with the statements of other witnesses about the time of the shooting. Capt Long was able to say fairly exactly that the time of surrender was 5.15 pm, whereas up to then we had had to assume that the time was between 1 and 2 pm. The shooting, according to the witnesses Pooley and O'Callaghan, did not take place before a certain time had elapsed after the surrender of the batallian HQ. But at that hour it is almost impossible, both according to common sense and theoretically, that Knoechlein was still near the place which, up to now, had been stated as the approximate place of the execution. For I believe it can be considered as established that he must have arrived near Le Paradis Church at say 6 pm at the latest, that he stayed there for a while with his company, and then marched on in the direction of La Fossee until dusk, whereupon he prepared bivouacs.
So one doubt and one uncertainty follows the other.
In this connection, another fact is important: The witness Schinkel has stated the interesting fact that he had seen Capt. Albrecht who had played a part in the setting-up of the machine guns and had left his company during the fighting at that time. For this he was said to have been put on trial later.
It is not my intention to maintain that this rumour deserves to be taken as evidence. But whilst Emke was allegedly sure that Capt. Schroedel commanded the machine guns, Schinkel mentions Albrecht and does not know of any other person. The witness Schinkel may have been mistaken. But really his statement shows - as I have repeatedly stressed - drastically and distinctly how easily people can be mixed up and give rise to mistakes. Such mistakes are so easily made that this possibility must be fully taken into account when the statements of witnesses are considered.
I cannot and will not maintain that the witness Emke deliberately tells the untruth. But if one is faced with such contradictory statements, one must ask oneself quite seriously whether one can so easily believe a statement like Emke's. And even if one does so, one must ask oneself if it is sufficient to convict a man under the gravest of charges.
Of course I have no more reason to maintain that the statements made by the defence witnesses, are entirely trustworthy, for naturally they are subject to the same conditions as the statements of the prosecution witnesses. But in some points they contain important circumstantial evidence for the incorrectness of the Prosecution. And that is what is decisive in this connection.
Now before I come to deal with the defence witnesses and the statement made by my client, I shall deal with the statement made by the witness Romanie Castell. It seems to me that this witness has nothing whatever to do with the whole affair, but that her statement was considered important to prove the accused's brutality, that means the possibility that he was also capable of an action like the shooting of numerous British soldiers. The witness declared that she recognised in the accused the officer who, in 1940, interrogated her about spies, making her kneel down and threatening her with a pistol. The officer, she says, had taken off a black coat before her eyes. In view of the evidence given by other witnesses, it appears improbable that the accused had been wearing a coat of that description or, indeed, a coat of any description. Of course he may have been wearing a coat now and then, and it will be up to the court to decided whether this was the case in spite of the evidence given by the defence witnesses according to whom he was wearing the usual camouflage dress.
Of far greater importance, however, is the assertion made by the witness with the utmost certainty, that this officer had been wearing a service cap. I think I have really proved that the accused at that time did not wear a service cap, but either a steel-helmet or a fourage cap. The witness also mentioned a specially distinct nervous eye twitching she had observed on the officer. I think I have proved that the accused did not strike other people at that time by this. Nor did he then have a distinctly visible scar on the left side of his face, and, finally, he practically did not know any French at that time. But the witness told the court about a rather lively conversation which the officer held in at least a somewhat fluent French. Though this incident is really of no importance, it might have been significant for the whole atmosphere, if it had been true.
But I cannot imagine that the court will believe this witness, although she maintains for certain that she recognised the accused. In a certain way this was not difficult for her because, after looking round in the court room for some time, she had realised that the only person likely to be the man, was the accused. In my opinion, the importance of such scenes of recognition must not be overrated.
In the aforesaid I have made some remarks concerning the statements made by the defence witnesses to which I will now turn:
The witnesses Fries and Backwinkel who were non-commissioned officers of the 3rd company, took part not only in the fighting at Le Cornet Malo, but also in the further advance up to the area around Le Paradis Church and, lastly, the further march eastwards as far as the bivouac. They reported - in an objective and matter-of-fact way I think - about what happened when the fighting had ceased at Le Cornet Malo. They disproved the possibility that the accused could have given any kind of agitating address at the occasion of the obituary. They have then described how, according to their recollection, they had repeatedly seen the company commander on their further advance in the afternoon. The road in question, including the vehicles there, and the fighting which possibly continued, they have not seen. They have not heard of any order to refuse quarter. They have not heard of the company commander having left his company. It was quite an elementary military necessity for the company commander to entrust the command to a platoon commander and to tell the company accordingly,if he left his company for even a short while. This was all the more necessary here, since the company - though it was in a position of reserve and no longer in contact with the enemy - had to be prepared at any time for new fighting, because one did not know whether or not the country opposite the company was still held by the enemy.
What the witness Captain Long has said was highly remarkable in view of certain facts hitherto considered by the defence as fairly certain. He did not only mention the treatment, on the whole irreproachable, by the Germans, he not only indicated a place different from what hitherto had been believed to be the batallion HQ, bit he also gave, based upon certain facts, so exact an hour for the surrender of the batallion HQ, that - as I have mentioned before - it became still more unlikely that Knoechlein was present at the place of the shooting.
The witnesses Fries and Backwinkel have, furthermore, dealt with my client's headgear. If, by comparing all the statements concerning this, including very particularly those of the prosecution witnesses, I may draw a definite conclusion, it is the following: the accused on that day did really not wear a service cap with a silver cord. A number of prosecution witnesses, however, have committed themselves concerning this head-dress to such an extent that it surely is justified to conclude that the accused in fact was not present at the execution. Even the witness Emke could say nothing but that the accused's head-dress was, most likely, a steel helmet or a fourage cap
I would consider that in the present matter the headdress is a substantial piece of evidence for this case. This fact cannot be dodged. Trifling as this question might otherwise have been, in the present case it is an important piece of evidence for the innocence of my client, precisely because the prosecution witnesses have committed themselves so much to this fact. This evidence is supported by numerous photographs taken both before and after the incident, on which my client is seen always with his fourage cap. He has plausibly explained why he wore it: In so far as his unit was about to go to action or was in action, he either used his steel helmet or his fourage cap which, as every soldier knows, can easily be put in a pocket and at any time exchanged with the steel helmet that every soldier must have at hand. The service cap, however, was with the kit in a baggage, because it was put on only when the company stayed back or the owner was off duty, on leave etc.
I will not say much about my client's statements from the witness box. The court will give them due consideration just like all other statements made in this trial. From the point of view of the defence, only the following items seem to me of significance:
In his written deposition my client had declared he hoped for a soon procedure before a Military Court, in order to wash his hands of the shameful charges raised against him. In a character less soldier-like than that of my client's, it might be said that he made such remark from mere speculation in order to use it later as an argument on his side. But I think the court will have realised my client's character in the course of the trial. He is a soldier through and through whose mentality is alien to an action of the kind the prosecution has charged him with. Of course this is not proof of his innocence. If it was up to the prosecution to prove his being concerned in the shooting of the soldiers, it was up to the defence to collect as much evidence as possible to weaken or to destroy the argumentation of the prosecution. I have previously dealt with the difficulties of this task. If one considers that my client has made a well-founded and logically conclusive statement not only previously, but also at present, one cannot say that it was entirely unworthy of credence and unusable. If, for instance, what the witness Sturzbecher says were right, it really appears impossible from the military point of view, and contrary to any reasonable consideration of the case, if my client later received the decoration with which he in fact was honoured when he was about to leave his company - if he really committed such an action. This I have substantiated by means of photographs and through witnesses. I was able to prove that he was awarded the Iron Cross of 1st and 2nd class for the fighting in the end of May 1940. I hardly believe he would have been awarded all these honours if he, at the time in question, had committed an incorrect action, to say nothing of an action as the prosecution charges him with.
If, finally, the question was raised why, in his written deposition, he only mentioned the Britishers' fighting methods as contrary to International Law, in general terms, saying only that reports and documents had been demanded and submitted accordingly, this was plausibly explained by him on the last day of the hearing. I need not comment on this statement which was a result of the preceding statement made by Col. Scotland. The incident is fresh in our memory.
Thus, surveying this case, we find that there is a lot of contradictory statements. These contradictions do not concern side issues, no, they are bearing on the central points. The most tragic incident has not been cleared up by this trial. The reasons for that I have discussed before. As far as the decision is concerned whether or not my client had a part in the shooting, I can only submit it to the court that he was NOT present and that he had NO knowledge of this incident. The defence therefore pleads to decide that the accused is NOT Guilty of the charge.
Before coming to a close, a word remains to be said in connection with the "British fighting methods contrary to International Law." I have just mentioned that I only do so for the case that the court should assume that my client was present at the shooting of the British prisoners of war, an assumption to my opinion.
It appears to me rather likely that something of this kind did happen, I mean that so called dum dum bullets were used, that white flags, or swastica flags were shown, and that then the approaching German soldiers were fired upon. It was not only the defence witnesses who made rather definitive statements about this. The defence witness Capt. Long has contested this allegation, just as much as the two witnesses Pooley and O'Callaghan did. I would not deal here with the question which opinion is correct, but I would, in this case, take it as given that such incidents did take place. I can really hardly imagine that the witness Backwinkel, for instance, invented such a story. In that case it would have been possible, under International Law, to put the guilty British soldiers before a Court Martial. According to art. 23 para 1, figure E and F of the appendix to the Hague Regulations of Land Warfare, the use of projectiles which are suited to cause unnecessary suffering, as well as the misuse of the flag of truce, the national flag etc of the enemy, are forbidden. If this was done all the same, the prisoners who had made themselves guilty of such offences, could be put before a court martial. Dum dum bullets undoubtedly belonged to the forbidden projectiles. The witness Backwinkel has made a diagram of a projectile which he had held in his own hands. The statements of the witnesses have neither proved nor disproved that such a Court Martial was convened or had passed judgement. The only clue we have is solely the document produced by the prosecution in which the Divisional Commander himself makes a report about the Court Martial shooting of British soldiers due to conduct contrary to International Law. Though the court could say that such a report was not yet conclusive evidence for a shooting of the British soldiers, which was really decided by a Court Martial and therefore legal, the possibility that a Court has been in action, remains. It cannot be disproved by anything. As to the accused himself he could not say anything about it because he was not present. But he may be allowed to point out that - if the court should assume his presence at the shooting after all - the court would have to consider the possibility that a sentence was passed by such a court. In this case, however, a German officer who was present would not be liable to punishment, in my opinion, because he must plead that the report, that means the official notification given by his superier Divisional Commander to Army HQ, was prima facie evidence for the probability of the correctiveness, as long as there is no counter-evidence. We know fairly certainly that a group of commissioned and non commissioned officers was present at the place of the shooting. It can neither be disregarded nor disproved that these men possibly had formed a Court Martial. But if a German Court Martial had sentenced the British prisoners to death for violation of International Law, the presence of these German soldiers at the shooting would not have been a war crime.
As I said, these are theoretical and auxiliary considerations for a case which the defence does not assume. But I had to deal with this possibility because the document mentioned had been produced by the prosecution, and because this document, in particular, appears to me as permissible evidence to disprove the guilt of my client in a war crime, even if one should arrive at a different interpretation of the evidence produced in this trial. But I would revert once more to what I said before, namely to ask the court to find the accused Not Guilty, because he was neither present at nor concerned in the shooting of the British prisoners of war.
Amongst his mass of artifacts, Dennis O' Callaghan has a transcript of Knoechlein's defence at his trial put forward by his defence counsel Dr Uhde, a transcript of which follows below.
Closing address to the court by Dr G. Uhde
The charge raised against my client is quite clear:
He is made responsible for the shooting of about 90 British prisoners of war at Le Paradis, Northern France, on 27 May 1940. It is natural that this case takes a special place in the history of this war because of its particular importance. Since the war, and possibly also during the war, the competent British authorities have been trying to find the responsible person or persons. The preliminary investigations did not bring full light into the case, it appears to me, and the only man who, in the opinion of the Prosecution, was found to be sufficiently incriminated for the trail, was my client.
This is significant in more than one respect:
- The occurrence happened 8 1/2 years ago.
- Important witnesses to fact were either killed in action or cannot otherwise be traced.
- The case is a typical war-crime, provided the necessary conditions for this can be proved.
I know very well that the court is aware of these facts. The court will realise - when considering all the pieces of evidence we have heard during all these days - that people. now after eight and a half years, will possibly remember faces, incidents and details wrongly, with difficulty, or not at all, and that they may even imagine things as facts which they may not have seen at all, and that they will say so in good faith. These are psychological facts which I need hardly go into in detail.
The amount of evidence collected for the Prosecution in the course of the years, is relatively small as compared with the evident extent of the investigations. But that evidence is grave. This the Defence has understood from the very beginning. After the accused, in August of this year, was informed of the charge and of the incriminating documentary evidence, the Defence therefore attempted with all means in their power, to collect exonerating evidence in the course of the very short time available. In this we have succeeded only on a very limited scale. How can it, for instance, be possible for an accused who, after the time in question, took part in countless fighting and battle, to remember the names of his fellow-soldiers who were with him on that particular day, a day of which he perhaps at first had no recollection at all, after all this time? It was more or less incidental that we have all succeeded in producing two members of my client's company at that time as exonerating witnesses. The reason is that the accused was not pres place of the shooting at that time, and did not know anything about it, and with this establishment I have arrived at a very important point of my explanations, since the Defence is going to prove the assertion just made.
Or in other words:
It is my duty as Defence Counsel to investigate this qustion: Has the prosecution succeeded in proving that the accused can be held responsible for the shooting of the British prisoners of war criminal from the point of view of Criminal Law.
In this I surmise that it is not decisive whether he had possibly ordered the shooting, taken a lead in it, or otherwise participated. No, it appears decisive only whether, at the time of the shooting, he was present at the place where it took place, or whether he knew of the shooting and did not prevent it. Furthermore, the question should be examined as to whether - provided that these first two points must be answered in the affirmative - the shooting then was legally justified for some reason or other.
I would, however, state beforehand that I shall attempt to submit to the court that the accused was NOT present at the place of the execution, and that it is only a secondary matter and a minor point if I examine the further question - just in order to be on the safe side -, whether the shooting can be legally justified for some reason acknowledged by International Law. In this I take it for granted that the shooting did take place. In my opinion the proof of my client's absence is found:-
- In the statements of the Prosection witnesses.
- In the evidence given by the Defence witnesses, and
- In certain documents which are in the hands of the Court.
In the following, therefore, I have to deal with the details contained in the said statements of the witnesses.
The witnesses Pooley and O'Callaghan, on that day, went through an ordeal which seems hardly believable and which they certainly will never forget. Since, however, one detail is important for the Prosecution to prove, a details that my seem immaterial for these witnesses, it must be examined whether the things these witnesses have said in connection with this details, are sufficient or not to prove the charge of the Prosecution. This detail was whether the two witnesses, at that time, saw my client standing at the entrance to the meadow or to the farmyard where the shooting took place. Pooley mentioned a group of commissioned or non-commissioned officers, of whom some were standing quite near him. He had specially noticed one man because that seemed to be a commissioned officer. This officer, he said, was wearing a German officer's service-cap on which there was a silver cord to be seen. For the rest, the witness' attention was absorbed by the guns (so in his opinion there was not one gan, but two!) From the fact, he says, that the machine guns were being mounted, he concluded what was going to happen to him. Upon the question whether he would recognise this officer if he saw him in court, the witness replied, pointing at the accused: "I think that is the man. So far as I can say now, I should say that he was present." The time of this incident was about 3.30 pm, perhaps a little later. When they were taken prisoners it was 1 pm. In 1946, he says, he went to France, on his own initiative and at his own expense to see the supposed place for the purpose of satisfying himself about one or two points. He also examined a wall on that farm and found marks of the impact of machine-gun shots. Nearby there was some sort of small chapel. When, in 1946, he was confronted with five people - he does not remember the exact date, that means whether it was before or after he gave his sworn deposition - he said that he thought he recognised one of them, but he was not quite sure at the time. In his written deposition he mentioned a strikingly large hook-nose of the officer in question. Now he can only speak of a striking nose, he says. In 1946, he says, he was in a bad state. The officer's service cap was certainly not a fourage cap, he says.
The accused told the court that the confrontation with the witness Pooley took place on 29 Oct. 1946, whereas Pooley gave his written deposition not before the 6 November 1946. In this declaration, too, he still declared that, apart from other features, he noticed a strikingly large hook-nose in the officer in question which - as has been established - is not true of the accused. This, after all, is significant. The description he gave of the man in question shows that even after the confrontation the witness was exceedingly unsure of himself, or else he would have given a different description of the accused after this confrontation. After all, the accused does not have a hook-nose. When the witness was shown the photo - Exhibit No. 4 - he said it might have been the officer on the right. That was the former Lt. Col. Bertling, the Regimental Commander. On other photos too, where the accused was shown, the witness did not recognise him.
The scene with the uniforms, when four men in black SS officer uniforms were, one after the other, marched past the witness, cannot be attributed much weight to, as the witness really had ample opportunity, previously to have a look at the accused during his interrogations by the Learned Prosecutor, the Defence Counsel, and the Court. Had he not recognised the accused then in uniform, surely that would have meant a considerable lack of intelligence. Besides, the witness could state hardly anything about the clothing and the equipment of the officer, with the exception of the officer's service cap with the silver cord, and the hook-nose. He could not even say whether the officer wore a great-coat or not.
The position of the place of execution is determined by this witness on a place where - as we have heard from the witness Capt. Long - the batallion HQ was.
These are only some of the most important points. I think they are not sufficient to establish that the accused really was present at that time. If, on the other hand, the witness believes to recognise my client, whereas he was not quite sure in 1946, and if he, on the other hand commits himself to that this officer was wearing a service cap with a silver cord, his statement is bound to lose weight if it can be established that the officer in question really did not wear a service cap at that time.
Apart from my belief to have proved this by my client's statement as well as by the evidence given by the witnesses Fries and Backwinkel, and also by questioning some prosecution witnesses, Pooley's statement becomes still more doubtful by the evidence given by Col. Scotland. For the latter has declared that Pooley's mental state had suffered owing to his physical state. It had not even been possible, Col Scotland said, to summon him before a court. It can therefore be assumed with some certainty that his memory and his capacity to give evidence, were prejudiced by this state. It must also be concluded that a statement given two years after such a confrontation, will lose weight, even if given in a better state of health. The argument given by the witness that he did a considerable amount of thinking over the case, can hardly suffice to satisft a reasonable demand on the certainty in his recognition of the accused.
Of course nobody can be blamed for not remembering the details of such an incident. That is not only due to the very long time which meanwhile has elapsed, but also to the fact that the incident probably happened very quickly. One must naturally put oneself in the man's position who is going to face such a situation. A man in this place - as Pooley has expressly said - will pay far more attention to the heavy machine guns which are going to shoot him, than to the Germans standing near. So, when, considering such statement made later, one must proceed with the utmost caution. I would therefore put it to the court that no proof has as yet been produced by the prosecution in the statement made by the witness Pooley.
As to the witness O'Callaghan, things are very much the same.
As far as, to begin with, the confrontation of my client and some other men, as well as the witness' recognition of my client are concerned, the value of this confrontation was considerably prejudiced by the fact that the witness had seen my client before that. It is clear that - if he met him on the stairs inside the court building - he was bound to recognise him in court. But that does not necessarily prove that he would have recognised him if he had never seen him after the 27 May, 1940. But in addition this witness was confronted with my client in London as well, and still, this witness too could tell the court only that he was almost entirely sure to recognise the accused. I think a proof of the identity of the accused with the officer seen at that time by the witness, can not be founded upon a statement of this nature. After so long a period, so many mistakes are possible and even probable that we must look at these statements with the utmost caution.
In this connection I would mention one point though it is probably not necessary:
Public opinion in any civilised country will emphatically demand the guilty persons' punishment if their action can be determined beyond doubt to be a war crime. But this must not have the consequence that NOT the highest possible demands are made on the onus of proof. This applies to any procedure and still more to the present one, in view of the long time which meanwhile has elapsed. The proof must be beyond any reasonable doubt. This means nothing but that there must be such evidence as would silence any doubt in an observer possessed of common sense who clearly surveys the facts. It is exactly this question in the present trial that will of course, be in the court's concern. I am inclined to assume that it will be easier for me to point out to the court such reasonable doubts, than it is to the learned counsel for the prosecution to contest the existence of such doubts.
In fact there is, in the opinion of the defence, quite a number of such doubts in the evidence given by all the witnesses. To come back to O'Callaghan it seems strange that in the whole of his evidence he does not say anything whether he recognised an officer. It is true that now he declares that such questions were probably put to him. But the fact that he says nothing about them in his deposition, does not necessarily mean that he answered them in the negative. He was even shown a photo, concerning which he said that it might be this man. On the photos which I submitted to him and which were taken at that time, he did not recognise my client. He also said he saw my client inside the farmyard, that is to say behind the gate. In contradiction to what Pooley said - who was the first in the file of prisoners and who says that the gunfire started immediately when he had passed the gate - O'Callaghan said that he was about in the middle of the file and that the first shots were, in his opinion, not fired before all the prisoners were inside the farmyard. All these points which came to light during the cross examination, do not really serve to substantiate the statements of this witness. He, too, spoke of a hook nose, and we know that my client has not got such a nose. It is furthermore significant that the witness said that as soon as my client put on his service cap he looked as though he had a hook nose. If that is how a witness argues and if, on the other hand, we know that the accuse certainly did not wear such a cap, such statement can, in my opinion, not suffice for a proof against my client.
Finally I have to mention here too that Col. Scotland said that the physical and mental state of the witness O'Callaghan had suffered. This too is an important argument for the very great caution to be employed in the valuation of the statement.
The confrontation of the two witnesses in London cannot be given too much importance, because we have heard from Col. Scotland on the last day of hearing that nothing was put down in writing about the results of that confrontation. I have asked why then they were confronted at all, since the result was not used to clear up the case. As Col. Scotland admitted himself that he did not know who of his staff told him about the result of the confrontation, the declarations made by the witnesses Pooley and O'Callaghan do not furnish, in my opinion, and positive and adequate proof that both allege to have recognised my client at that time, quite apart from the fact that both admit that they had not been quite sure. One cannot say that today they can be more sure.
Undoubtedly the statement made by prosecution witness Emke is the gravest. That is why I have to deal with this statement in more detail.
First of all it struck me that his statements equalled his statements made in London almost word for word, as if he had learned it by heart. This of course could be a mere coincidence, if he had not made himself conspicuous otherwise. It was not without reason that I questioned him about details regarding his stay at the L.D.C. London and everybody in this court will have been impressed when the witness, upon my question whether he had been beaten, spontaneously declared that he refused to give and answer. Though later he tried to explain, in a roundabout way, that he had been treated really well, he still gave some strange answers even here, such as for instance that he had not been beaten directly. Finally he was unable to give a reason for his first statement. I mean for the reply that he refused to give an answer. The reason why I had to deal persistently with the question how this witness came to make that statement, was that all he said was highly remarkable. The witness knew quite well that he was the section leader of the machine gun by which the British soldiers had been shot. When interrogated about this case, it must have therefore have been in his utmost interest not to have been in command of this gun himself. Now then, in my opinion which will be confirmed by any soldier, it is something exceptional if a platoon commander suddenly takes command of one of the machine guns of his platoon, altogether eliminating the competent section leader, and returning the command to him only after the gun has been in action. The general usage rather is that the platoon commander gives the necessary orders to the section leader for the action of the machine-gun. Theoretically of course, a different procedure is possible, and Emke meant to explain that is platoon commander Petri often eliminated him in this way. From a military point of view, such story must rouse suspicion. If one considers that the "Totenkopf Division" at that time had been in action for only two days, and that of course everything had to be done to ensure that what the soldiers had learned in training, could now be put into practice in action, one may assume that theory was turned into practice, and not that in practice everything was dopne differently from the theoretical exercises. I this point I have relied upon the military experience of the members of this court, although I might have called two military experts to substantiate my argument.
Nevertheless, I must of course face the argument that in Emke's case things may have happened just as he maintained. But one must consider precisely the doubts of this allegation. Now then, if Emke declared in the witness box that he refuses to answer a certain question, I think I can safely say: there is something wrong in this statement. Really in my mind it is absolutely out of the question that Emke was NOT very much frightened of being accuse himself. The fact that he contested this, is so much in contradiction to common sense that a statement of this nature is no longer credible. Any normal man in his position was bound to be in fear to become involved in this matter, and he would therefore have to make a point to explain convincingly that he had not been in command of the machine gun that fired. His statement would have deserved more credence if he had not hesitated to admit that he did fear to be accused. As it was, however, he incriminated himself, I think, by the negation of this question, or he at least shattered his credibility. It is furthermore remarkable that he was unable to name the men of his two machine guns, although he had been together with them long enough. The reason may be that he feared to be incriminated by these men if they were found. Though I have not succeeded in convicting Emke of a definitely untrue statement, I believe I did succeed in rousing doubts in his statements. And the point now is only to decide whether what he said are the true facts or not.
The Learned Counsel for the Prosecution will no doubt plead my client's statement that he knew of no reason why Emke incriminated him, perhaps from a certain ill feeling. Besides, Emke himself testified that he made his statements quite on his own free will. All that is true, but still his statements give rise to further considerable doubts.
I think I have proved beyond doubt that on this afternoon the area of the 3rd company was on the left hand side of the road leading to Le Paradis. The two company members of my client's have declared that their commander was with them on that afternoon and that no order had been received to say that he had temporarily to transfer the command. It is, however, a general military rule that a company commander will transfer command to one of his subordinate officers even if he only leaves his company for quite a short time. Also the prosecution witnesses who used to belong to my client's company, did not know anything about the accused having left his company area. And this area where Knochlein stayed according to the evidence given by Emke, was the area of the 1st and 2nd companies.
I am sufficiently objective to admit that theoretically it is possible that Knochlein left his company and went on to the road to the place of shooting, a place that has not even been determined with absolute certainty. It is up to the court to decide whether in their opinion this theoretical possibility has been proved as a fact. I would, however, submit to the court that I think this so very unlikely that this possibility need really not be considered. Since the witnesses Fries and Backwinkel have stated that they repeatedly saw my client in the course of the afternoon, that the company was slowly but steadily advancing, and that really it was several days afterwards that they heard rumours about the shooting. I feel I must ask the court to consider whether these statements should not be given priority as compared with Emke's statements. Of course there is a difference between the defence witnesses and the witness Emke, in as much as the Defence witnesses naturally could not state the exact whereabouts of my client's at any minute of the afternoon in question, that means they were not able to give a complete alibi for him, whilst on the other hand Emke maintains to have seen my client himself at the place of the crime - apart from what he did there. This perhaps is the crux of the whole trial, for here the decisive question raises itself:
Is the witness Emke to be believed or not? If so is his statement sufficient for a finding of guilty of the accused?
To begin with: I cannot tell whether the court will believe him. But they will have to examine most carefully the above doubtful points of his statement.
The defence must admit that they do not believe him. It is really too unbelievable to assume that there was an officer who did not belong in that place because it was not his area, and who suddenly called "Fire!" or something similar, further, that then Capt. Schroedel who at that time was not at all in command of the machine gun, ordered "Free fire!" and that, upon the almost simultaneous order from Petri, the machine gun then fired. There is really too much reason for Emke to invent such a story to exonerate him. In telling it he gave military details which simply do not deserve any credence. Emke had to admit, too, that it was not up to Scroedel to give any orders as long as the platoon was under the command of Petri and, consequently, the witness Emke was under the command of the second company, that means under Loew. But if there are such improbabilities, there remain, after all, doubts as to whether the incident occurred as the witness said, and this bears on the entire statement made by the witness, including the fact alleged by him that Knoechlein was present at the shooting.
We must, furthermore, assume that the witness did not make his statement on his own free will, although he confirmed in writing at the foot of his deposition that this was so. The fact that he refused to answer a certain question I put to him, can only have had the reason that he feared disadvantages from answering my question. Such disadvantages, however, he could fear only if he, telling the truth, would have had to disclose something unfavourable concerning his treatment. So one must conclude that at the L.D.C. Emke was somehow exposed to pressure. In the face of such an answer, this assumption simply suggests itself very strongly to the unbiased observer. But then the value of a statement brought about in this way, is considerably diminished. If there is even one point in which the court has reasonable doubts in the statement, the court must not give it a decisive consideration. But the statement should at least have roused sufficient doubt to disqualify it as a foundation for a decision of the court, unless further absolutely sound proof be established.
Whether there are such proofs, I shall investigate later on.
It is also significant that Emke was unable to confirm the photos of the house in question and of the place of the shooting. He always spoke of a certain gable front, the two corners of which were taken aim at by the machine gun or guns. He also remarked that the house in question had been standing alongside the road.
Here, I would therefore draw your attention to one point: Now, after the witness Capt. Long has indicated the batallion HQ on the same spot where the place of the shooting possibly was, since he as well as Pooley used the small chapel or the image of a saint as a support to his memory, whereas the two places cannot possibly have been on the same spot nor even near each other, the locality - though not the fact of the shooting - has become quite uncertain. The fact that the lcoality cannot be clearly established any longer, just shows clearly how difficult it is to recollect or to call back to one's mind circumstances lying back several years and important for a later consideration which, however, at that time were taken no or very little notice of.
There was not only this uncertainty in the course of this trial, but a lot more of the same kind. This fact the court should take due note of.
The significance of the statements of all other prosecution witnesses is smaller than the one discussed above. The witness Sturzbecher has mentioned something in connection with certain points which the prosecution possibly will evalue to substantiate their point concerning a participation of my client in the shooting. The witness described to the court a meeting with Knoechlein at which Knoechlein is said to have remarked something to the affect that "these prisoners are mine." He interpreted this statement as if Knoechlein, when using the word "mine" referred to his company. The witness said furthermore that he had believed Knoechlein to claim these prisoners for the account of his company. We have heard that a company commander could very well be interested in having as many prisoners as possible to claim. This incident, therefore, does in no way support the suggestion that Knoechlein meant to do harm to the prisoners.
Moreover, the witness overheard an excited discussion between Knoechlein and the battalion commander, he alleges, from the room next door. But he does not remember details. He could mention repeatedly that the commander was concerned about his personal success. Following up this incident, the witness said, a report was demanded from the 3rd company. In this it was briefly said that the officer commanding 3rd company had given orders not to take prisoners. It further mentioned that the British troops had used dum dum bullets.
I think the defence has disproved that such an order was ever issued to the 3rd company, and that it, therefore, cannot have been mentioned in a report either. Some of the members of the company then must have known about it, such as for instance the prosecution Leitl.
This witness did not incriminate my client at all.
The witness Schneider was so exceedingly vague in his statements that he can hardly be taken into account as a witness by the court. No conclusion can be drawn from a superficial observation, it appears, the foundations of which are quite unclear to the witness himself. It is significant that this witness does not remember to have seen, at that time, an officer with a service cap. The statement of this witness was also remarkable because it demonstrated so plainly how difficult it is, after eight and a half years, to remember this or that person. This shows how very carefully the evidence given by the witness Emke must be considered, who alleges to have made far more exact observations.
The big part that rumours play in this case is not only seen from the statement made by the witness Sturzbecher but also from the fact that hearsay was frequently mentioned in this trial. All we can say about the whole incident is really this:
Now as much as before it is in complete darkness. And this darkness, as far as my client's participation is concerned, could not have thrown light into during this trial either. There has been, it is true, some light in some other places which, however, are of no import here for the question whether Knoechlein was present at the place of the crime or not. Nevertheless, certain circumstances cleared up are of special importance. If for instance, we know in which areas the individual companies of the batallion were employed after the fighting round Le Cornet Malo, then we may immediately assume that the company commanders were with their companies. That I need not explain to a Military Court, surely.
Now, if on the other hand there arise some new considerable discrepancies in the aforementioned determination of the place or the time of action, that means if the case becomes ever more complicated, it is still more imperatively demanded to increase the demands on the proof of guilt.
What, for instance, remains to say, really, if one compares the statements of the Defence witness Capt. Long - who surely is quite unbiased and well informed - concerning the time of surrender of the batallion HQ, with the statements of other witnesses about the time of the shooting. Capt Long was able to say fairly exactly that the time of surrender was 5.15 pm, whereas up to then we had had to assume that the time was between 1 and 2 pm. The shooting, according to the witnesses Pooley and O'Callaghan, did not take place before a certain time had elapsed after the surrender of the batallian HQ. But at that hour it is almost impossible, both according to common sense and theoretically, that Knoechlein was still near the place which, up to now, had been stated as the approximate place of the execution. For I believe it can be considered as established that he must have arrived near Le Paradis Church at say 6 pm at the latest, that he stayed there for a while with his company, and then marched on in the direction of La Fossee until dusk, whereupon he prepared bivouacs.
So one doubt and one uncertainty follows the other.
In this connection, another fact is important: The witness Schinkel has stated the interesting fact that he had seen Capt. Albrecht who had played a part in the setting-up of the machine guns and had left his company during the fighting at that time. For this he was said to have been put on trial later.
It is not my intention to maintain that this rumour deserves to be taken as evidence. But whilst Emke was allegedly sure that Capt. Schroedel commanded the machine guns, Schinkel mentions Albrecht and does not know of any other person. The witness Schinkel may have been mistaken. But really his statement shows - as I have repeatedly stressed - drastically and distinctly how easily people can be mixed up and give rise to mistakes. Such mistakes are so easily made that this possibility must be fully taken into account when the statements of witnesses are considered.
I cannot and will not maintain that the witness Emke deliberately tells the untruth. But if one is faced with such contradictory statements, one must ask oneself quite seriously whether one can so easily believe a statement like Emke's. And even if one does so, one must ask oneself if it is sufficient to convict a man under the gravest of charges.
Of course I have no more reason to maintain that the statements made by the defence witnesses, are entirely trustworthy, for naturally they are subject to the same conditions as the statements of the prosecution witnesses. But in some points they contain important circumstantial evidence for the incorrectness of the Prosecution. And that is what is decisive in this connection.
Now before I come to deal with the defence witnesses and the statement made by my client, I shall deal with the statement made by the witness Romanie Castell. It seems to me that this witness has nothing whatever to do with the whole affair, but that her statement was considered important to prove the accused's brutality, that means the possibility that he was also capable of an action like the shooting of numerous British soldiers. The witness declared that she recognised in the accused the officer who, in 1940, interrogated her about spies, making her kneel down and threatening her with a pistol. The officer, she says, had taken off a black coat before her eyes. In view of the evidence given by other witnesses, it appears improbable that the accused had been wearing a coat of that description or, indeed, a coat of any description. Of course he may have been wearing a coat now and then, and it will be up to the court to decided whether this was the case in spite of the evidence given by the defence witnesses according to whom he was wearing the usual camouflage dress.
Of far greater importance, however, is the assertion made by the witness with the utmost certainty, that this officer had been wearing a service cap. I think I have really proved that the accused at that time did not wear a service cap, but either a steel-helmet or a fourage cap. The witness also mentioned a specially distinct nervous eye twitching she had observed on the officer. I think I have proved that the accused did not strike other people at that time by this. Nor did he then have a distinctly visible scar on the left side of his face, and, finally, he practically did not know any French at that time. But the witness told the court about a rather lively conversation which the officer held in at least a somewhat fluent French. Though this incident is really of no importance, it might have been significant for the whole atmosphere, if it had been true.
But I cannot imagine that the court will believe this witness, although she maintains for certain that she recognised the accused. In a certain way this was not difficult for her because, after looking round in the court room for some time, she had realised that the only person likely to be the man, was the accused. In my opinion, the importance of such scenes of recognition must not be overrated.
In the aforesaid I have made some remarks concerning the statements made by the defence witnesses to which I will now turn:
The witnesses Fries and Backwinkel who were non-commissioned officers of the 3rd company, took part not only in the fighting at Le Cornet Malo, but also in the further advance up to the area around Le Paradis Church and, lastly, the further march eastwards as far as the bivouac. They reported - in an objective and matter-of-fact way I think - about what happened when the fighting had ceased at Le Cornet Malo. They disproved the possibility that the accused could have given any kind of agitating address at the occasion of the obituary. They have then described how, according to their recollection, they had repeatedly seen the company commander on their further advance in the afternoon. The road in question, including the vehicles there, and the fighting which possibly continued, they have not seen. They have not heard of any order to refuse quarter. They have not heard of the company commander having left his company. It was quite an elementary military necessity for the company commander to entrust the command to a platoon commander and to tell the company accordingly,if he left his company for even a short while. This was all the more necessary here, since the company - though it was in a position of reserve and no longer in contact with the enemy - had to be prepared at any time for new fighting, because one did not know whether or not the country opposite the company was still held by the enemy.
What the witness Captain Long has said was highly remarkable in view of certain facts hitherto considered by the defence as fairly certain. He did not only mention the treatment, on the whole irreproachable, by the Germans, he not only indicated a place different from what hitherto had been believed to be the batallion HQ, bit he also gave, based upon certain facts, so exact an hour for the surrender of the batallion HQ, that - as I have mentioned before - it became still more unlikely that Knoechlein was present at the place of the shooting.
The witnesses Fries and Backwinkel have, furthermore, dealt with my client's headgear. If, by comparing all the statements concerning this, including very particularly those of the prosecution witnesses, I may draw a definite conclusion, it is the following: the accused on that day did really not wear a service cap with a silver cord. A number of prosecution witnesses, however, have committed themselves concerning this head-dress to such an extent that it surely is justified to conclude that the accused in fact was not present at the execution. Even the witness Emke could say nothing but that the accused's head-dress was, most likely, a steel helmet or a fourage cap
I would consider that in the present matter the headdress is a substantial piece of evidence for this case. This fact cannot be dodged. Trifling as this question might otherwise have been, in the present case it is an important piece of evidence for the innocence of my client, precisely because the prosecution witnesses have committed themselves so much to this fact. This evidence is supported by numerous photographs taken both before and after the incident, on which my client is seen always with his fourage cap. He has plausibly explained why he wore it: In so far as his unit was about to go to action or was in action, he either used his steel helmet or his fourage cap which, as every soldier knows, can easily be put in a pocket and at any time exchanged with the steel helmet that every soldier must have at hand. The service cap, however, was with the kit in a baggage, because it was put on only when the company stayed back or the owner was off duty, on leave etc.
I will not say much about my client's statements from the witness box. The court will give them due consideration just like all other statements made in this trial. From the point of view of the defence, only the following items seem to me of significance:
In his written deposition my client had declared he hoped for a soon procedure before a Military Court, in order to wash his hands of the shameful charges raised against him. In a character less soldier-like than that of my client's, it might be said that he made such remark from mere speculation in order to use it later as an argument on his side. But I think the court will have realised my client's character in the course of the trial. He is a soldier through and through whose mentality is alien to an action of the kind the prosecution has charged him with. Of course this is not proof of his innocence. If it was up to the prosecution to prove his being concerned in the shooting of the soldiers, it was up to the defence to collect as much evidence as possible to weaken or to destroy the argumentation of the prosecution. I have previously dealt with the difficulties of this task. If one considers that my client has made a well-founded and logically conclusive statement not only previously, but also at present, one cannot say that it was entirely unworthy of credence and unusable. If, for instance, what the witness Sturzbecher says were right, it really appears impossible from the military point of view, and contrary to any reasonable consideration of the case, if my client later received the decoration with which he in fact was honoured when he was about to leave his company - if he really committed such an action. This I have substantiated by means of photographs and through witnesses. I was able to prove that he was awarded the Iron Cross of 1st and 2nd class for the fighting in the end of May 1940. I hardly believe he would have been awarded all these honours if he, at the time in question, had committed an incorrect action, to say nothing of an action as the prosecution charges him with.
If, finally, the question was raised why, in his written deposition, he only mentioned the Britishers' fighting methods as contrary to International Law, in general terms, saying only that reports and documents had been demanded and submitted accordingly, this was plausibly explained by him on the last day of the hearing. I need not comment on this statement which was a result of the preceding statement made by Col. Scotland. The incident is fresh in our memory.
Thus, surveying this case, we find that there is a lot of contradictory statements. These contradictions do not concern side issues, no, they are bearing on the central points. The most tragic incident has not been cleared up by this trial. The reasons for that I have discussed before. As far as the decision is concerned whether or not my client had a part in the shooting, I can only submit it to the court that he was NOT present and that he had NO knowledge of this incident. The defence therefore pleads to decide that the accused is NOT Guilty of the charge.
Before coming to a close, a word remains to be said in connection with the "British fighting methods contrary to International Law." I have just mentioned that I only do so for the case that the court should assume that my client was present at the shooting of the British prisoners of war, an assumption to my opinion.
It appears to me rather likely that something of this kind did happen, I mean that so called dum dum bullets were used, that white flags, or swastica flags were shown, and that then the approaching German soldiers were fired upon. It was not only the defence witnesses who made rather definitive statements about this. The defence witness Capt. Long has contested this allegation, just as much as the two witnesses Pooley and O'Callaghan did. I would not deal here with the question which opinion is correct, but I would, in this case, take it as given that such incidents did take place. I can really hardly imagine that the witness Backwinkel, for instance, invented such a story. In that case it would have been possible, under International Law, to put the guilty British soldiers before a Court Martial. According to art. 23 para 1, figure E and F of the appendix to the Hague Regulations of Land Warfare, the use of projectiles which are suited to cause unnecessary suffering, as well as the misuse of the flag of truce, the national flag etc of the enemy, are forbidden. If this was done all the same, the prisoners who had made themselves guilty of such offences, could be put before a court martial. Dum dum bullets undoubtedly belonged to the forbidden projectiles. The witness Backwinkel has made a diagram of a projectile which he had held in his own hands. The statements of the witnesses have neither proved nor disproved that such a Court Martial was convened or had passed judgement. The only clue we have is solely the document produced by the prosecution in which the Divisional Commander himself makes a report about the Court Martial shooting of British soldiers due to conduct contrary to International Law. Though the court could say that such a report was not yet conclusive evidence for a shooting of the British soldiers, which was really decided by a Court Martial and therefore legal, the possibility that a Court has been in action, remains. It cannot be disproved by anything. As to the accused himself he could not say anything about it because he was not present. But he may be allowed to point out that - if the court should assume his presence at the shooting after all - the court would have to consider the possibility that a sentence was passed by such a court. In this case, however, a German officer who was present would not be liable to punishment, in my opinion, because he must plead that the report, that means the official notification given by his superier Divisional Commander to Army HQ, was prima facie evidence for the probability of the correctiveness, as long as there is no counter-evidence. We know fairly certainly that a group of commissioned and non commissioned officers was present at the place of the shooting. It can neither be disregarded nor disproved that these men possibly had formed a Court Martial. But if a German Court Martial had sentenced the British prisoners to death for violation of International Law, the presence of these German soldiers at the shooting would not have been a war crime.
As I said, these are theoretical and auxiliary considerations for a case which the defence does not assume. But I had to deal with this possibility because the document mentioned had been produced by the prosecution, and because this document, in particular, appears to me as permissible evidence to disprove the guilt of my client in a war crime, even if one should arrive at a different interpretation of the evidence produced in this trial. But I would revert once more to what I said before, namely to ask the court to find the accused Not Guilty, because he was neither present at nor concerned in the shooting of the British prisoners of war.