Source: Law-Reports of Trials of
War Criminals, The United Nations War Crimes Commission, Volume VII,
London, HMSO, 1948
sections have been highlighted provisionally until hyperlinks can be added
to appropriate files. Page numbers precede text]
CASE NO. 37
HAUPTSTURMFÜHRER AMON LEOPOLD
COMMANDANT OF THE FORCED LABOUR CAMP NEAR CRACOW.
SUPREME NATIONAL TRIBUNAL OF POLAND, CRACOW
27th-31st AUGUST AND 2nd-5th
Criminal Organizations. Genocide. The Defences of
Superior Orders, Military Necessity and Non-applicability of the Law.
General Background of the Case
Notes on the Case
The Court and the Legal Basis of the Trial
The Nature of the Offences
The Defences of Superior Orders, Military Necessity and Alleged Non-Applicability of the Decree
A. OUTLINE OF THE PROCEEDINGS
1. THE INDICTMENT
It was charged that the accused Amon Leopold Goeth, an Austrian
subject, as a member of the NSDAP and of the "Waffen SS"
took part in the activities of the criminal organizations. The former
was described as an organization which under the leadership of Adolf
Hitler, through aggressive wars, violence and other crimes, aimed at
world domination and establishment of the national-socialist regime. The
accused personally issued orders to deprive of freedom, ill-treat and
exterminate individuals and whole groups of people, and himself
murdered, injured and ill-treated Jews and Poles as well as people of
other nationalities. In particular it was charged that :
(1) The accused as commandant of the forced labour camp at Plaszow
(Cracow) from 11th February, 1943, till 13th
September, 1944, caused the death of about 8,000 inmates by ordering a
large number of them to be exterminated.
(2) As a SS-Sturmführer the accused carried out on behalf of SS-Sturmbannführer
Willi Haase the final closing down of the Cracow ghetto. This
liquidation action which began on 13th March, 1943,
deprived of freedom about 10,000 people who had been interned in the
camp of Plaszow, and caused the death of about 2,000.
(3) As a SS-Hauptsturmführer the accused carried out on 3rd September, 1943, the closing down of the Tarnow ghetto. As a result
of this action an unknown number of people perished, having been
killed on the spot in Tarnow ; others died through asphyxiation during
transport by rail or were exterminated in other camps, in particular
(4) Between September, 1943, and 3rd February, 1944, the
accused closed down the forced labour camp at Szebnie near Jaslo by
ordering the inmates to be murdered on the spot or deported to other
camps, thus causing the death of several thousand persons.
(5) Simultaneously with the activities described under (1) to (4) the
accused deprived the inmates of valuables, gold and money deposited by
them, and appropriated those things. He also stole clothing, furniture
and other movable property belonging to displaced or interned people,
and sent them to Germany. The value of stolen goods and in particular
of valuables reached many million zloties at the rate of exchange in
force at the time. For those acts the accused was arrested by the
German authorities on 13th September, 1944, but he was not
brought before any German court. He was later extradited to Poland by
the Allied authorities in Germany.
2. THE GENERAL BACKGROUND OF THE CASE
The case and evidence for the Prosecution can be summarized as
The criminal activities of the accused Amon Goeth in the Cracow
district were but a fragment of a wide action which aimed at the
extermination of the Jewish population in Europe. This action was to be
carried out by stages. In the first stage the personal and economic
freedom of the Jews was only partly restricted ; then they were
completely deprived of personal freedom and confined in so-called
ghettoes. From there they were gradually transferred to concentration
camps and eventually murdered in a wholesale manner by shooting and in
gas-chambers. Large numbers of Jews perished in each stage of this
action also through inhuman treatment and torture or were individually
murdered by German and Ukrainian henchmen.
In the Cracow district, the best known were the ghettoes in
Cracow and Tarnow, both of which had been liquidated in an inhumane way
by the accused.
The Cracow ghetto was set up on 21st March, 1941, and
contained at the outset over 68,000 inmates. Its setting up was preceded
by a long series of regulations progressively limiting the rights of the
Jewish population. Already on 8th September, 1939, the German
authorities ordered all Jewish enterprises to be marked with a star of
David. This exposed the owners to robberies and persecutions. On 10th
October, 1939, Municipal Registration Offices were ordered to register
the Jewish population on special registration forms marked with a
On 26th October, 1939, the Governor-General, Dr.
Hans Frank, issued a proclamation stating in no uncertain terms that there
would be no room for the " Jewish exploiters " in the
territories under German administration.
On 26th October, 1939, Dr. Hans Frank introduced
compulsory labour for the Jewish population and ordered the setting up
of special Jewish labour battalions. The carrying out of this order was
entrusted to his deputy for security affairs (der Hohere SS und
The registration of Jews began on the orders of the German Secret
Police, the Gestapo, in November, 1939, first in Cracow and later on in
other localities. In the same month all Jewish banking accounts had been
frozen and the order as to the marking of Jewish shops and enterprises
repeated. In order to facilitate German plans, Jewish Councils were set
From 1st December, 1939, Jews were allowed to appear in
the streets only with a star of David on their right arm. Ten days later
they had been prohibited from appearing in streets and public roads
between 9 p.m. and 2 a.m., without special individual permits ; and from
1st January, 1940, they had been prohibited from changing
their residence without such permits. On 20th January: 1940,
they had been prohibited from travelling by rail. At the same time all
Jewish schools were closed down.
In December, 1939, the German authorities began to cut off Jewish
districts in Cracow and other towns from the rest of the population at
the same time making use of house searches to carry out wholesale
robberies of gold, silver and other valuables. Street raids were
becoming more and
more frequent and under various pretences all kinds of heavy fines
were being imposed upon the Jews. They had to be paid at short notice
under threat of executing of the Jewish Councils members or specially
In June, 1941, special yellow identity cards were issued to the Jews:
From 15th October, 1941, they had been prohibited under the
penalty of death from leaving residential districts allotted to them.
From 1st December, 1941, the German post would not accept
Jewish parcels and in the same month the Jews were ordered to surrender
all furs in their possession. The same applied to ski-ing equipment.
From 1st February, 1942, they had been prohibited from using
cabs and sleighs.
Already in December, 1939, the systematic deportation of Jews from
the Polish territories forcibly annexed to the German Reich and from
Germany itself, and Austria, to the General Gouvernement had begun.
Simultaneously Jews were being systematically concentrated in a small
number of towns in order to achieve complete control over them and to
facilitate their removal to death camps.
In February, 1942, the wholesale removal of Jews to death camps was
initiated, combined with wholesale murdering of Jews on the spot. In
that month a large scale action affecting 12,000 Jews took place in
Lublin. Since then these actions became more-and more frequent and
drastic. The peak was reached in July and August, 1942.
During the last week of June, 1942, in the course of the liquidation
of the Tarnow ghetto about 6,000 Jews were removed to Belzec death camp
and nearly the same number murdered on the spot. At the beginning of September, 1943, the ghetto was completely liquidated in this way. It
was then, for instance, that the accused Amon Goeth himself shot between
thirty and ninety women and children and sent about 10,000 Jews to
Auschwitz by rail, organizing the transport in such a way that only 400
Jews arrived there alive, the remainder having perished on the way.
In compliance with the wishes of Dr. Frank who wanted Cracow, the
capital of the General Gouvernement, to be " purged " of Jews,
the German authorities started in July, 1940, their forcible removal
from the town. In June, 1942, a large scale action took place in the
Cracow ghetto, in the course of which many murders were committed and
about 5,000 Jews sent to the death camps on orders issued by Rudolf
Pavlu, Stadthauptmann of Cracow. On 28th October, 1942, the
barbarous evacuation of the Cracow ghetto and a further reduction of its
area took place again. About 7,000 Jews were sent to the death camps and
many others murdered on the spot. Of the 68,000 in summer 1940, only
14,000 Jews remained in the ghetto.
On 13th March, 1943, the final liquidation of the Cracow
ghetto took place, personally supervised by SS Sturmbannführer Willi
Haase and carried out by the accused Amon Goeth with the assistance of
Kunde, Heinrich and Neumann, the Security Police experts on Jewish
affairs. Wholesale murders were then committed on the spot. The total
number of Jews murdered on this occasion reached about 4,000, among
which were many women and children. Amon Goeth himself shot many people.
over 10,000 able-bodied people, were accommodated in
the Plaszow forced labour camp.
Similar events had simultaneously taken place all over the General
Gouvernement. At the end of 1942 the whole remaining Jewish population
of the General Gouvernement found itself concentrated in the forced
labour camps and in no more that 40 towns.
All these measures were accompanied by regulations threatening with
the death penalty all who shelter the Jews or keep their belongings.
They were followed by wholesale and organized robberies of the Jewish
Against this background appeared the person of the accused Amon Goeth,
whose life career from the early years was inseparably bound with the
Nazi movement, and who was responsible for the atrocities committed as
part of a general pattern of the German policy aiming at complete
extermination of the Jewish population in Europe.
The Indictment proceeded to enumerate and describe in great detail
all criminal acts preferred against the accused under the charges
summarized in Section 1 above.
Apart from statements given by numerous witnesses, the great majority
of whom were former inmates of the ghettoes and camps already named, the
case for the Prosecution was supported by evidence of the Director of
the Jewish Historical Commission in Cracow, who in the capacity of an
expert described to the Tribunal at great length and much detail the
general policy and system of exterminating Jews, and the organization
of concentration and other camps set up by the German authorities for
that purpose. The Tribunal heard also as an expert Dr. L. Ehrlich,
Professor of International Law in the University of Cracow, on the
recent developments in the sphere of international criminal law
concerning trials of war criminals.
3. THE VERDICT
The accused, who was defended by two counsel appointed by the
Tribunal, pleaded not guilty and submitted some defences which will be
referred to later.
The Tribunal found the accused guilty of the alleged crimes and
sentenced him to death. In addition, the Tribunal pronounced the loss of
public and civic rights, and forfeiture of all property of the accused.
The accused appealed for mercy to the President of the State National
Council. After the President had decided not to avail himself of his
prero-gative of pardon, the sentence was carried out on 13th
September, 1944, by hanging.
B. NOTES ON THE CASE
1. THE COURT AND THE LEGAL BASIS OF THE
The Court was the Supreme National Tribunal for trials of war
criminals, the jurisdiction and powers of which have been defined in the
22nd January and 17th October, 1946, and in the
Decree of 11th April, 1947 ( See the Annex, Part II, Section 1, pp. 91-92 of this
volume.). The case was tried in Cracow.
The trial found its legal basis in the Decree of 31st August,
1944, concerning the
punishment of Fascist-Hitlerite
criminals guilty of murder
and ill-treatment of the civilian population and of prisoners of war, and the
punishment of traitors
to the Polish Nation, as amended by the
Decree of 16th February, 1945.( See the Annex,
Part I, pp. 82 -91 of this volume)
NATURE OF THE OFFENCES
The acts committed by the accused were crimes in violation of
Article 1 para. 1 (a) and
(b) of the Decree mentioned above, the text of which is given in
subsection (ii). These acts were also in violation of the corresponding
provisions of the Polish Civil Criminal Code of 1932, concerning murder,
grievous bodily harm, torture and ill-treatment, infringement of
personal liberty, appropriation of property (Articles 225, 235, 236,
246, 248, 257 and 262, para. 1). The Prosecution also submitted that
these crimes violated the laws and customs of war (Article 46 of the
Hague Regulations) and constituted crimes against humanity.
Apart from Article 1 of the above Decree, the Tribunal based its
sentence on Articles 3-5 of the said Decree concerning superior orders
and duress, and additional penalties (now Articles 5 and 7 of the
consolidated text of the Decree (See the Annex, Part I, Sections
2, 4 an; 5). The Tribunal also applied the
relevant provisions of the Criminal Code dealing with the basic
principles of responsibility for criminal acts.
The nature of the offences for which the accused was sentenced raises
questions on two specific points, which will be discussed in the
(i) Criminal Organizations
In the general part of the Indictment the accused was charged with
membership in the Nazi Party and the Waffen SS, which according to this
Indictment were criminal organizations, and of which he was a member
until 13th September, 1944.
It is to be noted that the Indictment against Amon Goeth was lodged
with the Tribunal on 30th July, 1946, that is before the
pronouncement of the Nuremberg Judgment (30th September and 1st
October, 1946), and at the time when the Polish war crimes legislation did not contain provisions
concerning the membership of criminal
organizations. These were promulgated in the Decree of 10th
December, 1946 (See the Annex, Part I, Section 3, pp. 86-87, of this
From the text of the Indictment it will also be observed that the
Prosecution put a much wider interpretation upon the notion of the
criminal character of the Nazi Party than it has been accepted by the
Nuremberg Tribunal. Thus, the Indictment against Amon Goeth described
the criminal activities of the Nazi Party as aiming, " through
sive wars and other crimes, at world domination and
establishment of the national-socialist regime ". On the other hand,
the Nuremberg Tribunal in declaring the Nazi Party and the Waffen SS to be
criminal within the meaning of the Nuremberg Charter, based its finding on
the fact of the participation of these organizations " in war crimes
and crimes against humanity connected with the war " ( See. the Judgment
International Military Tribunal for the Trial of German Major War
Criminals, Cmd. 6964, pp. 71 and 79) It is, of
course, clear that this restricted finding and the omission in this
connection of crimes against peace have been based only on the evidence
submitted to the Tribunal, as according to the law of the Charter, all
three categories of crimes as defined in its Article 6 have a bearing on
the criminality of the organizations in question.
When dealing with this particular charge, the Supreme
National Tribunal accepted the fact that the accused was member of "
a criminal organization " and stated that his activities were closely
bound up with the activities of the organization, which acting as a
criminal association set as one of its aims the annihilation of whole
groups of people.
As it will be shown in more detail later the Tribunal in
establishing the facts of the accuseds participation in " a
criminal organization " and in expressing the opinion that the Nazi
Party was a criminal organization, although including some references to
its purely political aims, legally connected the criminal activities of
the Nazi Party with the commission of war crimes and crimes against
humanity. Thus the National Tribunal based its declaration on a finding of
much the same general nature as did the Nuremberg Tribunal in its Judgment
delivered a few weeks later.
The sentence of the Supreme National Tribunal was
pronounced on 5th September, 1946. Therefore this Tribunal had
no formal legal basis either in municipal or international law on which it
could base a penalty for the membership in a criminal organization.
Nevertheless, it seems that, taking into account the criminal facts
already established at the time by the evidence submitted to the Nuremberg
Tribunal and in the present trial, as well as in the case against
Gauleiter Artur Greiser, (This case, which was tried by the Supreme National Tribunal in June
July, 1946, will be reported upon in one of the subsequent volumes of this
series) the National Tribunal thought it justified to
make the above declaration on the criminal character of the organizations
in question. This declaration was in accordance with the trend of legal
thought prevailing at that time and with the already tangible developments
in the sphere of international criminal law.
Looking at the position from the point of view of the
present state of international and Polish municipal law, there is no doubt
that the accuseds membership in the Waffen SS was definitely criminal.
This is, however, not so in regard to his membership of the NSDAP as he
held no party office of any kind, did not belong to the Leadership Corps
of the Nazi Party which alone has been declared criminal by the Nuremberg
Judgment,( See the Nuremberg
Judgment, op. cit., pp.
70-71) and was merely an ordinary member of the Party. His
membership as such in this organization was therefore not criminal.
Actually, the legal basis on which the Tribunal inflicted the punishment
in the present case, was Article 1, para. 1 of the Decree of 31st
August, 1944, within the scope of which came
the offences preferred against the accused in paragraphs
(1) to (4) of the Indictment, and which did not deal with the membership
of criminal organizations.
The above-mentioned Article 1, para. 1 of the Decree of 31st
August, 1944, as amended by the Decree of 16th February, 1945, concerning
the punishment of
Fascist-Hitlerite criminals guilty of
murder and ill-treatment of
civilian population, etc,( See the Annex, Part I, Section
1, of this volume)
as follows :
" Any person who, assisting the German authorities of
(a) took part in committing
acts of murder, ill-treatment or persecution against the civilian
population or prisoners of war ;
(b) acted to the detriment of persons wanted or persecuted
by the authorities of occupation for whatever reason it may be (with the
exception of prosecution for common law crimes), by sentencing, detaining
or deporting them-is liable to the death penalty."
It will be noted that this provision was in substance very
similar (though not quite sufficiently developed), to that of Article 1,
in its final form as contained in the consolidated text of the Decree of
1944 and promulgated on 11th December, 1946, which has already been
analysed elsewhere (Ibid,
Part I, Section 2, p.84). It has been submitted there that the offences which
come within the scope of this
Decree are, inter alia, war
crimes and crimes against humanity as they are understood by the
international enactments of 1945 and 1946.
There is no doubt that the offences preferred against the accused in
the present case fall within these two notions. The Prosecution went,
however, a step further on the road of the development of the
international criminal law and described these offences also as the crime
it to be a crimen læsæ humanitatis.
The word " genocide " is a new term coined by
Professor Lemkin to denote a new conception, namely, the destruction of a
nation or of an ethnic group. Genocide is directed against a national
group as an entity, and the actions involved are directed against
individuals, not in their individual capacity, but as members of the
national group. According to Lemkin (See R. Lemkin, Axis Rule in Occupied Europe, Carnegie Endowment
for International Peace, Division of International Law, Washington, 1944,
pp. 79-95) genocide does not necessarily mean
the immediate destruction of a nation or of a national group, except when
accomplished by mass killings of all its members. It is intended to
signify also a co-ordinated plan of different actions aiming at the
destruction of the essential foundations of the life of national groups,
with the aim of annihilating the groups themselves. The objectives of such
a plan would be disintegration of the political and social institutions,
of culture, language, national feelings, religion, and the economic
existence of national groups, the destruction of the personal security,
liberty, health, dignity, and even the lives of the individuals belonging
to such groups. Genocide has two phases : one, the destruction of the
national pattern of the oppressed group, for which the word " denationalization
" was used
in the past ; the other; the imposition of the national
pattern of the oppressor. Lemkin believes, however, that the conception
of denationalization is inadequate because : (a) it does not connote the
destruction of the biological structure ; (b) in connoting the destruction
of one national pattern, it does not connote the imposition of the
national pattern of the oppressor ; and (c) denationalization is often used
to mean only deprivation of citizenship.
To introduce and establish this new type of crime was for
the first time attempted in the Nuremberg Indictment against the German
Major War Criminals. The Prosecution stated therein that the defendants
" conducted deliberate and systematic genocide, the extermination of
racial and national groups, against the civilian populations of certain
occupied territories in order to destroy particular races and classes of
people and national, racial or religious groups, particularly Jews, Poles
and Gipsies, and others."(See the Indictment, Cmd. 6696, p. 14.)
It will be observed that the Prosecution at Nuremberg,
when preferring against the defendants the charge of genocide, adopted
this term and conception in a restricted sense only, namely, in their
physical and biological connotations. This is evident not only from the
definition of genocide as stated in the Indictment and from the inclusion
of this charge under the general count of murder and ill-treatment, but
also from the fact that all other aspect and elements of the defendants
activities aiming at the denationalization of the inhabitants of occupied
territories were made the subject of a separate charge which was
described as germanization of occupied countries.
The Nuremberg Tribunal, although it dealt in great length with the
substance of the charge of genocide,(See the
6964, pp. 50-52 and 60-64.) did not use this term or
make any reference to the conception of genocide. It left it to the future
developments, which were soon to come, and to the subsequent labours of
international bodies and jurists to define the notion of this new, and
already generally recognized, crime under international law( Reference is made here to the
adopted by the General Assembly of the
United Nations on 11th December, 1946.).
In the present Polish trial, which was the first of the
war crime cases of this kind, the Prosecution endeavoured to do much more
than establish only the physical and biological aspects and elements of
the crime of genocide that were involved in the criminal acts actually
committed by the accused. By providing the Tribunal with ample evidence as
to the general background of the accuseds activities, which was
summarized in the preceding part, (see pp. 2-4) and by fully setting out the general
policy and system, and the machinery set in operation by the German
authorities, for the gradual elimination and final extermination of the
Jewish nation, they succeeded in establishing before the Supreme National
Tribunal also other components of this new type of crime, such as its
economic, social and cultural connotations. The Prosecution submitted that
the notion of the crime of genocide is within the scope of the Decree of
31st August, 1944, as it provides punishment of murder and
ill-treatment not only of individual persons, but moreover of large groups
of people persecuted on specific grounds.
The Tribunal accepted these contentions and in its
Judgment against Amon Goeth stated the following :
" His criminal activities originated from general
directives that guided the criminal Fascist-Hitlerite organization,
which under the leadership of Adolf Hitler aimed at the conquest of the
world and at the extermination of those nations, which stood in the way
of the consolidation of its power.
" The policy of extermination was in the first
place directed against the Jewish and Polish nations.
" This criminal organization did not reject any
means of furthering their aim at destroying the Jewish nation. The
wholesale extermination of Jews and also of Poles had all the
characteristics of genocide in the biological meaning of this term, and
embraced in addition the destruction of the cultural life of these
" The letter of the Head of the Security Police in
Berlin dated 21st September, 1939, and addressed to all the
Einsatzgruppen der Polizei and called Schnellbrief ,
which contained instructions how to deal with the Jews, constitutes one
of the proofs in respect of the extermination campaign. The letter
established as the final goal (' Endziel ') which was to be kept
secret, the complete extermination of the Jews. This end was to be
achieved by stages."
The Tribunal established further that in order to achieve
that aim a whole series of special orders and regulations had been issued
by the German authorities in the General Gouvernement. All these measures
restricted the personal and economic freedom of the Jews, and their
liberty of movement and cut them off from the outside world by confining
them to a continuously declining number of ghettoes. Simultaneously with
the liquidation of these ghettoes the number of labour camps, gas chambers
and crematoria were increased. These camps also afforded an excellent
opportunity as instruments used for extermination of Poles. They included
the so-called penal camps for Poles who were considered guilty of various
administrative offences and were politically suspected, e.g., of taking
part in the resistance movement.
The evidence submitted to the Supreme National Tribunal
greatly exceeded the requirements of establishing the case against the
accused himself. The prosecution aimed at proving not only that the
accused was guilty of a number of crimes committed either personally,
or on his orders, or with his explicit or tacit consent against numerous
individuals of Jewish and Polish nationality, and against whole groups of
people on political, racial or religious grounds. The Prosecution also
aimed at putting on record the general German policy and system of large
scale persecutions and wholesale I extermination of people, of which the
activities of the accused were part and parcel.
3. THE DEFENCES OF SUPERIOR ORDERS,
MILITARY NECESSITY AND ALLEGED NON-APPLICABILITY OF
Apart from denying certain facts and trying to throw the
blame upon others or diminish the extent and gravity of the crimes
alleged, the accused pleaded that he was only carrying out orders and
instructions received from
his superiors, which he had to obey as a military person.
He also contended that the
penalties he was inflicting upon the inmates; including putting them to
death, were within his disciplinary jurisdiction as commandant of the
camp, and were in accordance with the German regulations in force.
The Tribunal rejected this plea and based
its verdict on Article 4 of the Decree of 31st August, 1944, in
its former text, which read as follows :
" The fact that any of the crimes envisaged in
Articles 1 and 2 of the Decree was committed while in service of the
enemy authority of occupation or on its orders, or under duress, does
not exempt from criminal responsibility."(This provision has been later amended and replaced by Article 5 of the
consolidated text of this Decree, the text of which is given in the Annex,
Part I, Section 4, p. 88, of this volume.)
In addition, the Tribunal established that a large number
of crimes had been committed on the accuseds own initiative.
The accused raised also the defence that his acts were
legal because they were based on military necessity. The Tribunal,
however, disregarded this plea. The accused, in this case had committed
acts without any military justification and in flagrant violation of the
rights of the inhabitants of the occupied territory as protected by the
laws and customs of war and, therefore, the defence of military necessity
was neither applicable nor admissible.
Finally, one of the defending Counsel submitted that the
Decree of 31st August, 1944, was not applicable to the accused
in view of his German nationality, as it provided only for punishment of
Polish subjects who committed offences against their own co-nationals.
This plea could not, however, be upheld in view of the fact that,
according to Article 3 para. 1, of the Polish Criminal Code, the Polish
Criminal law is applicable to all persons, irrespective of their
nationality, who committed a crime on the territory of the Polish State.(See also The Annex, Part I, Section 2, p. 84, of this volume.) The plea was in fact disregarded by the Tribunal.