c) SIX always clearly expressed his opinion against to be expected, and that, only due to HEYDRICH's
d) SIX, because of his opinion tried in vain to
e) SIX, after HEYDRICH's death, again took steps
f) SIX, regardless of his membership in the Abteilung (Cultural Political Division) of the show in the case of SIX, that he took part neither in crimes against humanity nor in war crimes.
membership of Dr. SIX in one of the organizations declared criminal - the characteristics of a crime in the sense of the indictment are not given, as SIX neither aided war crimes and crimes against humanity, nor wanted or planned the commitment of such crimes. defendant Dr. SIX guilty in the sense of the indictment.
DR. HEIM: (For the defendant Blobel): May it please your Honor: Before I occupy myself with the facts as presented by the Prosecution as far as it concerns the defendant Blobel, may I ask the permission to present a few ideas of a general character, for which there is reason in this trial, paradoxical as this may sound at first. I shall mainly limit myself to reproduce such ideas as originate from the pen of non-German authors and which sine ira et studio endeavor to solve the difficult task of prying into the depths and abysses of thepsyehic characteristics of the German People. This survey may be a small contribution to the effort to explain the situtation from which it results that the defendants, and amongst them also Blobel, were "the cruel henchmen whose terror will be engraved in the darkest pages of the history of humanity" according to the Prosecution's assertion. The intention of my statements is to bring out a part of the underlying total connections of our time."
(Mitscherlich and Mielke, The Dictate of the Contempt for Humanity (Das Diktat der Menschenverachtung). to dispute or to whitewash any crimes which were ordered or executed under the National Socialist regime, but at the same time I would like to point out that during the war crimes were not only perpetrated by the members of the Axis but also by those of their military opponents. delicate sphere where there are opposed on one side: llyalty and absolute obedience - in the National Socialist State and equivalent to life and freedom - and personal guilt and atonement on the other side. has not become any more humane. It is to be regretted that the second World War has shown a retrogressive development in respect to the protection of the civilian population. This we were made to feel to a not too small extnet in our own country too. The apocalyptic horsemen have for many years haunted Germany too, and they left behing their ineradicable traces. Many German towns with a culture of almost a thousand years have perished under a hall of bombs and it will not be possible to restore them and in them innocent women, children and old people have lost their lives. It is unfortunate that especially when for yars it had been systematically fostered by utilizing all possible means of propaganda, hatred has resulted in wild orgies of cruelty. "War has always promoted such outbreaks ..." (Schenk, Letter from a Swiss to a German student in "Europa vor der deutschen Frage" (Europe faces the German problem).). It is further said in this volume that it is deemed the highest ethics in Germany "completely to renounce one's own individuality and to recognize solely the State as one's conscience above which there is no higher binding authority". And Schenk states also the causes which exist for it according to his idea, by declaring:
"It results from the specifically Prussian military Germany.
.."
"The Frenchmen" as he goes on to state - and I want to add to it -- the American and the British -- will never understand that there are people who acknowledge an authority over them which may prescribe to them how to behave." This in itself regrettable and frightening character trait, to give one's individuality up completely and only to be a small wheel in the set-up of a clockwork, has become the theme of a critical essay by Robert d'Aarcourt "The mental perspectives of the Germans (Dis geistigen Perspektiven das Deutschen)" There it is being said:
"Resistance - this word means something disreputable to the Germans.
... They have superstitious veneration for opposition.
.. In thepresence of power, in the presence judgment in the Germans becomes befogged.
The ability of the word.
The only reaction to a given order is its acceptance and its execution.
.." the problem, how it was possible that decent and blameless people, according to the statements of the Prosecution, could so diligently and punctually given the National Socialist annihilation machinery, is given in the statement contained in the above-mentioned essay by D'Harcourt;
"There is no other nation that in its whole make-up is more removed from any public affairs than the Germans.
That in the second instance a citizen.
.."
for his family predestinate him exactly to function in the prescribed sense in the authoritative State. And this State utilized the endlessly docile yielding disposition of a nation to which the security of the family meant more than the duty of the citizen who is conscious of his responsibility, to form it at will and to its own purposes. brought Blobel as well as the other defendants into the dock. Under 8 C-J the indictment charges the defendant Bllbel with the murder of nearly 60,000 people. Prosecution, the latter seems to consider the case as a simple case of murder, in which on theone hand there is the perpetrator andon the other hand there is the known number of people executed. But it is not quite as simple as the Prosecution seems to think, even if the actual facts are apparently sufficiently proven by documents. to another essential factor. The submitted documentary material to which the Prosecution had access, is definitely incriminating. However, it is so much easier for the Court to fulfill its difficult and responsible task of finding the objective truth, the more fully the material will be at its disposal -- the exonerating material as well as that which implicates the defendants. The documentary material which was found amounts to the immeasurable, and that which was made available to theDefense is only an infinitesimal part of it and besides exclusively the material which indicts the defendants. The war in the East was specially characterized by atrocities andcruelties on both sides, but the material which would show the other side also in its true light and would thus give a full picture of the situation in the East is not accessible to the Defense.
But that this material was collected by German agencies to give testimony in future times, most of these defendants will be able to confirm.. reports of the Reich Main Security Office submitted by the Prosecution are incomplete and unreliable and that they can only be fragmentary documents of questionable value in view of the insufficiency of the organization used and of their manifest tendency towards exaggeration. I shall prove in detail that the alleged figures do not correspond to the facts, as is shown by comparing the individual reports. Especially I shall prove that Blobel cannot be rendered responsible for the reported, "large-scale actions" and "reprisals", because these were partly measures ordered by other agencies - Higher SS and Police Chief,, Chief of the Einsatzgruppen, Town Commander - and carried out by other units, and partly such executions, as were ordered by the Commanding General of the Army District Command 6, Fieldmarshal von Reichenau, as collective measures sanctioned by International law - reprisals - on the occasion of crimes, attacks in disregard of the customs of war, acts of sabotage against the fighting or occupying troops, and were carried out by police units and Ukrainian Militia. for carrying out of a considerable number of executions, since he was in the hospital for a considerable time and also for other reasons was not fit for duty during the time in question fallen ill of Volhynian fever and because of a head injury; for these reasons a deputy took over his command.
sub-detachments, which dealt independently with the security tasks assigned to them in the areas of the front-line divisions, resulted in Blobel having no influence on the reported events and was informed of them only subsequently or perhaps not at all, because the subdetachments reported immediately to the Einsatzgruppe through Army District Command 6. a detachment of altogether 52 men, from which number we have to deduct office personnel, mess personnel, interrogation staff and drivers, can attain the number of executions alleged by the Prosecution. This is simply impossible. Evidence will show, that the Chief of an Einsatzkommando or Sonderkommando had no power of command over units of the Ordnungspolizei, the Waffen-SS, the Wehrmacht and the Unkrainian Militia. Furthermore I shall prove, that, as far as parts of Sonderkommando 4a took part in executions, they were used by Blobel in consequence of orders received by him as chief of the Sonderkommando from the Einsatzgruppe or from Army District Command 6. Blobel had no occasion to consider the carrying out of the executions criminal and to examine whether these orders were in conformity with International law, because the Russian enemy hardly knew the concept of International law, had not signed International Conventions concerning warfare and did not in the least intend to comply with the customs of war. In this conception Bllbel was of necessity seconded by what he had experienced and seen, especially of atrocities committed on German soldiers. I shall prove what may perhaps appear incredible, namely, that the executions of women and children as carried out by Sonderkommando 4a, were by no means contrary to International law, since the Russians in their carefully organized and all-embracing partisan warfare, which was contrary to International law, ruthlessly employed also women and children for these purposes.
Apart from all that it has already been mentioned that in Germany, too, the war did not spare women and children, and in this repeat the prevailing rules of warfare have destroyed the doctrine of reprisals. I may point out in this connection that the Anglo-American conception of warfare -- in contrast to the one prevailing on the European Continent - sticks to the traditional concept of war, which regards every person resident in enemy territory as an enemy alien.
Through the principles involved in the subject, "order" have already been discussed by somebody else, I want to refer in this connection to Himmler's speech at Posen in October 1943 in order to underline what has already been said in the beginning. His statements as to loyalty and obedience left no doubt as to what an SS-leader had to expect in the event of noncompliance with orders. Himmler stated among other things:
"I want to lay down one directive. Should you ever we shall see to it that he 1 ses his life.
.. I want to make a clear and unambiguous statement.
It goes But orders must be sacred.
If generals obey, the Armies obey automatically.
.. The only commissar we have obedience.
.." Marwitz could refuse obedience in spite of his oath of allegiance, because thecarrying out of an order of the king would have meant for him a conflict with marality and conscience.
Marwitz' tomb bears the characteristic inscription; "He saw Frederick's heroic epoch and fought with him in all his wars. He chose disgrace, where obedience brought no honor." In Adolf Hitler's Germany men who refused obedience were either put in a concentration camp or shot dead, regardless of person and rank, as is proved above all by the measures against the participants in the events of the 20 July 1944.
the moral law; this applies also to the Defendant Blobel. For either he had to carry out the order or if he refused to do so, he lost his liberty, or he was even shot dead by a summary Court martial. In addition the National Socialist regime during the war introduced the truly devilish device of family liability, in order to eliminate the last remnant of a will to disturb the machinery of its system. The fear to endanger even the closest relatives made the internally reluctant man abandon every better motion of his conscience. But the legal conclusion to be drawn from this situation must be that the defendant was in a genuine emergency, at least in a presumptive emergency. But this is a justifying reason according to the general principles of penal law. Even if the Defendant Blobel, like so many other Germans, who have remained decent at heart, should be reproached with cowardice and egoistic self-preservation, the short statement may be sufficient, that this may not establish any punishable form of participation. made to the provision of the German Military Code, that the participant in the execution of an illegal order renders himself liable to punishment; to this we may object that the authoritarian State would have declared that every kind of resistance against the crime is in itself a crime. In addition terrorist and tendentious sentences did the rest to spread the conviction, that any sort of resistance was condemned to failure and therefore meant only a useless and consequently senseless sacrifice. in 1943 to open the mass graves in the East and to destroy the corpses completely, no argument for the Defendant is needed in this respect. It cannot be understood why the burning or the destruction of corpses is supposed to be a criminal act, no matter why and by whom the exe cutions were carried out.
Defendant Blobel the day after tomorrow, that is Wednesday, for the whole day, as it must be reckoned that he will be examined as a witness very soon, and I would like to prepare his examination.
THE PRESIDENT: The request of Dr. Heim is granted, and the Defendant Blobel will be excused from attendance in court, next Wednesday all day.
DR. HEIM: Thank you.
THE PRESIDENT: About how long is your opening statement?
DR. LUMMERT (For Defendant Blume): About fifteen minutes.
THE PRESIDENT: Suppose we take the recess now. The Tribunal will be in recess for fifteen minutes.
DR. LUMMERT: Lummert for Blume. Your Honor, I was prepared to examine the witness Wartenberg this afternoon. Would it be possible that the witness Wartenberg, in case he is in the building, could be called during the interval so that I could examine him after my opening statement? It would be an advantage if I could be excused tomorrow, I and the defendant Blume.
THE PRESIDENT: I shall inquire if Mr. Wartenberg is available. Mr. Glancy, can you answer that question?
MR. GLANCY: To the best of my knowledge and belief, sir, he is in the building. During the intermission I will make sure and inform the Tribunal upon our return.
DR. LUMMERT: would it be possible to ask the Witness Wartenberg to give us his documentary evidence about the interrogation of the defendant Blume, or to bring it along with him?
THE PRESIDENT: Will you so inform Mr. Wartenberg, Mr. Glancy?
MR. GLANCY: I didn't quite get that, sir. I am sorry.
THE PRESIDENT: Yes. Whatever Mr. Wartenberg may have with regard to the interrogation of the Defendant Blume he should bring along with him into court when he comes in.
MR. GLANCY: If the time allowed permits he will.
THE PRESIDENT: Very well.
MR. GLANCY: Sir, might I ask at this time, are there any other defense counsel who are ready this afternoon to continue with the interrogation of the Interrogator Wartenberg?
THE PRESIDENT: Yes, that is a very good suggestion which Mr. Glancy makes. If there is anyone else who is ready to question Mr. Wartenberg and will indicate the name of his client, then Mr. Wartenberg will be instructed to bring along those papers also.
DR. FICHT: Biberstein.
THE PRESIDENT: Will you make a note of that, Biberstein. Anyone else?
(No response,)
THE PRESIDENT: Well, those two, We will recess.
THE MARSHAL: The Tribunal will be in recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. GLANCY: If the Tribunal please, the Prosecution hasnnow located Mr. Wartenberg, and he should be here within five minutes,
THE PRESIDENT: As far as you can, take advantage of those minutes; you may begin. I am sorry. I merely said we will begin with the opening statement.
DR. LUMMERT: (Attorney for the Defendant Blume) special desire for a speeding up of the procedure became evident. Particularly in the present proceedings the otherwise customary interval between the submissions by the Prosecution and the opening speech of the Defense wasnot allowed. I, therefore, request for indulgence that I shall only be able to do full justice to my duties as Defense Counsel in my final plea, when I shall argue the legal principles of the case. punishment for acts normally constituting murder and mass-murder can be administered to the individual perpetrator, if the murder was committed by order of the State? had to lose their lives, on the part of all belligerents. Killing in the course of military action does not count as murder. There is general agreement that the leaders of states and supreme military commanders have to observe the recognized rulesof war which are recognized among all civilized states. In case of violations, they may be held to account. But what is the position in respect to Criminal Law of the individual soldier and officer, if the supreme leadership of the State and of the Army violates the law of war and of nations by their commands? This is the crux of the present case. future World State. It is the hope of suffering mankind. Up to this time, the so-called states, those strange, highest forms of organizedsociety were and still are at the same time the supreme legislators.
They did and still do claim so-called sovereignty for themselves. With the courage of the legislator the verdict of the IMT anticipated the basic law of the future World State in that one sentence, which in my opinion is the most important one, but unfortunately also that sentence of the great Nuernberg verdict, which it is hardest to put into practice:
(Official text, vol I, p. 223) "On the other hand the very essence of the Charter is that individuals have international duties which transcent the national obligations of obedience imposed by the individual State." individuals, which find themselves in a position where their national duties of obedience clash with their international duties. It is the vocation of the United Nations to prepare that World State and step by step make it a reality. The difficulties of the negotiations of the United Nations in a nut shell are described by the question, whether the funda mental principlesof West or East are to be dominant.
After this general survey, let us now return to our trial. The acts for which the defendants are now held responsible here belong into the history of the era of transition from single states to the World State. I intend to take up in my closing plea on behalf of my Defendant Blume in detail the problem of whether or not a person can be expected to act in a certain way as a basis for excluding guilt. This reason for excluding guilt does not concur with either the so-called necessity (Notstand) arising from having received an order, nor with the general state of necessity as defined by criminal statute. It is rather the basic legal principle, acknowledged legal theory by science and practice in many countries, which is fundamental to all special statutory provisions concerning the state of necessity, but which is not entirely covered by them. The International Military Tribunal mentioned this basic principle in its discussion of Article 8 of the Charter; it is expressed in the following way (Official text, Vol I, p. 224): I quote:
"The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible." organizations charged with being criminal. There it excluded from "criminal groups" those "who were drafted into membership by the State in such a way as to give them no choice in the matter" (Official text, Vol. I, p. 256 and 273). give a complete and true picture of his participation -- which was on the whole very slight -- in those acts carried out in the East by order of the political and military dictator Hitler. I shall show exactly and in detail how the Defendant Blume almost never carried out this order, which he himself felt to be altogether impossible, how in two cases he could not altogether evade the order when exposed to the strongest immediate mental pressure on the part of his superior Nebe, which left him no other choice, and how he was relieved and sent back to Berlin already after about seven weeks in the middle of August 1941, because Nebe was highly dissatisfied with him and found him too "soft" and too "burocratic". carrying out of the order, he bad only the choice to forfeit his own life at once for non-compliance with orders or to carry out the order. But this was no choice in conformity with the moral law. I legal duty to suffer martyrdom is universally rejected. In conformity with this, the Presiding Judge of this Tribunal, Judge Musmanne, said in his concurrent opinion on the conviction of the former Fieldmarshal Milch (text of Judgment, English, p. 84, German p. 96):
"We never intended, nor was it suggested, that he should take any action, which would result in the forfeiture of his life."
stand on his general educational background and on his professional career and his activity asofficial of the Security Police in the years before and after the middle of 1941. witnesses and by the presentation of a number of documents. This evidence will concern both the activity and conduct of the Defendant Blume and the general picture of his character and personality. Finally, I shall submit some documents concerning legal rules and legal questions in order to facilitate the task of the Tribunal. Defendant Blume will show that it will be possible to consider him worthy of a mild judgment. Tribunal, in agreement with my colleagues, to be permitted to make a short separate statement on the question of criminal membership (Count III of the Indictment), because I have dealt with the offense of membership in a "criminal group" already during the IMT trial and recently again in legal opinions.
THE PRESIDENT: Mr. Wartenberg has now arrived, and he will please take the stand.
ROLE WARTENBERG, a witness, took the stand and testified as follows: BY THE PRESIDENT:
Mr. Wartenberg, will you please repeat after me the following oath: I swear that the evidence that I shall give shall be the truth, the whole truth and nothing but the truth, so help me God.
(The witness repeated the oath)
THE PRESIDENT: Mr. Walton, do you want to address a few questions to the witness as some sort of a preliminary for the cross examination?
MR. WALTON: Your Honor, only insofar as qualification is concerned.
THE PRESIDENT: Very well. BY MR. WALTON:
Q What is your name? War Crimes? of this Office.
MR. WALTON: We submit, Your Honors, that he is qualified to be cross examined by the Defense on the subject of interrogation.
THE PRESIDENT: Very well. BY DR. LUMMERT (Attorney for the Defendant Blume): Q Witness, I have a few general questions to address to you in connection with the affidavit NO-4145, Exhibit No. 10. It is in Document Book I; in the German on page 43, in the English - I don't know the page number, but it could easily he found.
May I ask you, witness, do you have the original or a copy of this affidavit in front of you"?
A Is that affidavit dated 29-6-47?
Q Yes, it is. May I ask, witness, when was Defendant Blume interrogated which is the basis of this affidavit? On the sane day, the 29th of June; or, previously? to 1500 hours. affidavit, the signature to the original affidavit; or was it the first interrogation? the Defendant Blume during the interrogation; was there anything particular obvious about him?
A I don't recall anything particular about that. he may rise. Blume, a short time only before that interrogation, was arrested and the persons who arrested him ill-treated him very badly; and, that afterwards he tried twice to commit suicide which only did not succeed because the putties which he used for this purpose tore twice; and that the strangulation marks which resulted from, his attempted suicide could be seen quite clearly on the right and left side of his neck. That he apart from that showed signs of the ill-treatment on his face?
MR. WALTON: If Your Honors please, I think the witness would give clearer answers if Counsel for the Defendant Blume would ask him one question at the time. The natters which he is going into at the present time are not material to the issue of taking of affidavits and the conducting of interrogations; and I think that the time is certainly being wasted With this type of questioning.
I ask the Tribunal to have the Counsel for the Defense ask him direct questions so that he can give direct answers.
THE PRESIDENT: I think you can be a little more specific in your BY DR. LUMMERT: Blame during the interrogation had signs of attempt of suicide on his neck? particularly his lips which were bleeding?
A I do not recall these marks. It is possible, but I do not recall it. Defendant Blume was exhausted and depressed? that particular date?
A I think so. I do not have any reason to believe why a certain dry should be of a disadvantage for interrogation.
Q May I ask you about the course of the interrogation. First of all, a stenographic report was taken while you were asking and he was making his replies? the shorthand record, write the affidavit NO-4145?
A I have, after the interrogation; I prepared the affidavit. I do not recall if I used the stenographic record or if I dictated the material out of my memory. Anyhow, it was, as far as I recall, not done in the presence of Blume.
The affidavit was shown. later on to him and in one of the copies I have in front of me he had made his corrections. submitted to him the affidavit prepared by you, that he might sign it, objected that his informations which he had given to you about his attempts to evade the carrying out of that order as far as possible, had not been recorded by you? the background or acts of a defendant have been omitted in the shorthand record. had omitted something, to make an additional record? because you had no time; and that you told him that he himself should write down the supplementary evidence?
A I do not recall such an incident. In case that I would have asked an interrogatee to write certain things down I would have them available in my files. The only records which I have, besides the affidavit and the first interrogation is the record at the time when Blume signed the affidavit. receive a letter by the Defendant Blume in which he wrote down the supplementary statements and asked you that this supplementary statements would also be recorded and submitted to him to be signed? Did you receive that letter?
A I did. not. I have no other record in the file of Walter Blume than the first interrogation, the copy of his affidavit dated. 29 June 1947, and. a record taken at the time from the proceedings while signing the affidavit.