startling features is the manner in which the aggressive war conducted by Germany against Russia has been treated by the Defense as if it were the other way around. Thus, one of the Counsel in his summation speech said:
"However, as was the case in the campaign observed to the letter by this army."
izes the defense of one's country as "cowardly", and the other equally astounding remark that the invader has the right to ignore internaional law. from the charge of killing civilian populations since every Allied nation brought about the death of non-combatants through the instrumentality of bombing. Any person, who, without cause, strikes another may not later complain if the other in repelling the attack uses sufficient force to overcome the original adversary. That is fundamental law between nations as well. Germany under its Nazi rulers started an aggressive war. The bombing of Berlin, Dresden, Hamburg, Cologne and other German cities followed the bombing of London, Coventry, Rotterdam, Warsaw and other Allied cities; the bombing of German cities succeeded, in point of time, the acts discussed here.
But even if it were German cities without Germans having bombed Allied cities, there still is no parallelism between an act of legitimate warfare, namely the bombing of a city, with a concomitant loss of civilian life, and the premeditated killing of all members of certain categories of the civilian population in occupied territory.
A city is bombed for tactical purposes: communications are to be destroyed, railroads wrecked, ammunition plants demolished, factories razed, all for the purpose of impeding the military. In these operations it inevitably happens that non-military persons are killed. This is an incident, a grave incident to be sure, but an unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at the railroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, both in fact and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting thereon, dragging out the men, women and children and shooting them. distinction between shooting civilians with rifles and killing them by means of atomic bombs. There is no doubt that the invention of the atomic bomb, when used, was not aimed at non-combatants. Like any other aerial bomb employed during the war, it was dropped to overcome military resistance. with the usual bombs or by atomic bomb, the one and only purpose of the bombing is to effect the surrender of the bombed nation. The people of that nation, through their representatives, may surrender and, with the surrender, the surrender, the bombing ceases, the killing is ended. Furthermore, a city is assured of not being bombed by the lawabiding belligerent if it is declared an open city. With the Jews it was entirely different. Even if the nation surrendered they still were killed as individuals.
of the Jews as Jews in any way subdued or abated the military force of the enemy, it was not demonstrated how mass killings and indiscriminate slaughter helped or was designed to help in shortening or winning the war for Germany. The annihilation of defenseless persons considered as "inferior" in Russia would have had no effect on the military issue of the war. In fact, so mad were those who inaugurated this policy that they could not see that the massacre of the Jews in many instances actually hindered their own efforts. We have seen in the record that occasionally German officials tried to save Jews from extinction so that they could be forced to work for the German war effort. This would have been another war crime but at least it would not have been so immediately disastrous for the victims.
The Einsatzgruppen were out to kill "inferiors" and, first of all, the Jews. But in the documentation of the war crimes trials since the end of the war, no explanation appears as to why, from the viewpoint of the Nazis, the Jew ad to die. In fact, most of the defendants in all these proceedings have expressed a great regard for the Jew. They assert they have admired him, befriended him, and to have deplored the atrocities committed against him. It would seem they were ready to help him in every way except to save him from being killed.
The Einsatzgruppen were told at P*etzsch that "the Jews" supported Bolshevism, but there is no evidence that every Jew had espoused Bolshevism, although, even if this were true, killing him for his political belief would still be murder. As the Einsatzkommandos entered new cities and towns and villages they did not even know where to look for the Jews. They could not even be sure who were Jews. Each Einsatzkommando was equipped with several interpreters, but it became evident throughout the trial that these invading forces did not carry sufficient linguistic talent to cope with the different languages of the States, provinces and localities through which they moved. There can be no doubt that because of the celerity with which the order was executed countless non-Jews were killed on the supposition that they were Jews.
Frequently the only test applied to determine Judaism Was that of physiognomy. One supports the killing of the Jews or denounces it. If the massacres are admitted to be unsupportable and if the defendants assert that their participation was the result of physical and moral duress, the issue is clear and it becomes only a question of determining how effective and oppressive was the force exerted to compel the reluctant killer. If, however, the defendants claim that the killing of the Jews was justified, but this claim does not commend itself to human reason and does not meet the requirements of law, then it is inevitable that the defendants committed a crime. defenses, and it is the duty of the court to consider them all. But it is evident that the insistence on the part of the defendants that the massacres were justified because the Jews constituted an immediate danger to Germany inevitably weakens the argument that they acted only under duress exerted on them personally; and in turn, the "personal duress" argument enfeebles the "danger to Germany" argument. In two or three instances an attempt was made to show that the Jews in Russia held a high percentage of official positions, a percentage disproportionate to the size of the Jewish population. This was the most common theory utilized in Germany for the oppression and persecution of the Jews. By adducing the same excuse here the defendants involved acknowledged they were putting into physical effect in Russia an antipathy and prejudice already entertained in Germany against the Jewish race. There was no duty and certainly no right on the part of the defendants to go into Russia to equalize the official positions according to the proportion between Jews and non-Jews.
Defense Counsel Dr. Mayer admitted that the Fuehrer-Order violated the recognized laws and customs of war, but urged that Russia was not entitled to protection under international law.
Apart from the fact that Russia was a party to the Hague Convention of Land Warfare -- in fact, the Hague conference of 1899 was initiated by Russia -- the International Military Tribunal pointed out that the rules of the Hague Regulations have become delcaratory of the Common Law of War. It further disposed of the objection by quoting approvingly from the memorandum issued by the German Admiral Canaris on September 15, 1941, in which he declared that it is contrary to military tradition, regardless of treaty or lack of treaty -
"To kill or injure helpless people."
Dr. Mayer also said, taking the same line as Dr. Maurach:
"If this war was not an unjustified orders given by Hitler."
If Dr. Mayer means this, he collides head-on with a res judicata. The International Military Tribunal, after studying countless documents and hearing numerous direct witnesses of and participants in the event itself, declared:
"The plans for the economic exploita shadow of legal excuse.
It was plain aggression."
of Germany, the genocide program was in no way connected with the protection of the Vaterland, it was entirely foreign to the military issue. Thus, taking into consideration all that has been said in this particular phase of the defense, the Tribunal concludes that the argument that the Jews in themselves constituted an aggressive menace to Germany, a menace which called for their liquidation in self defense, is untenable as being opposed to all facts, all logic and all law.
THE PRESIDENT: New headings. killings which are the subject of this trial, plead that they were under military orders and, therefore, had no will of their own. As intent is a basic prerequisite to responsibility for crime, they argue that they are innocent of criminality since they performed the admitted executions under duress, that is to say, Superior Orders. The defendants formed part of a military organization and were, therefore, subject to the rules which govern soldiers. It is axiomatic that a military man's first duty is to obey. If the defendants were soldiers and as soldiers responded to the command of their superiors to kill certain people, how can they be held guilty of crime? This is the question posed by the defendants. The answer is not a difficult one. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery. It is a fallacy of wide-spread consumption that a soldier is required to do everything his superior officer orders him to do. A very simple illustration will show to what absurd extreme such a theory could be carried. If every military person were required, regardless of the nature of the command, to obey unconditionally, a sergeant could order the corporal to shoot the lieutenant, the lieutenant could order the sergeant to shoot the captain, the captian could order the lieutenant to shoot the colonel, and in each instance the executioner would be absolved of blame. The mere statement of such a proposition is its own commentary. The fact that a soldier may not, without incurring unfavorable consequences, refuse to drill, salute, exercise, reconnoiter, and even go into battle, does not mean that he must fulfill every demand put to him. In the first place, an order to require obedience must relate to military duty. An officer may not demand of a soldier, for instance, that he steal for him.
And what subordinate is not required to do.
Even if the order refers to a offense.
If the nature of the ordered act is manifestly beyond the scope of the superior's authority, the subordinate may not plead ignorance to the criminality of the order.
If one claims duress in the harm which would result from not obeying the illegal order.
It would himself would risk a few days of cinfonement.
Nor if one acts under declared that:
"The true test, which is found in vary possible."
if he executed an order knowing that it "related to an act which obviously aimed at a crime". kingdom of Saxonia in 1867, and of Baden in 1870. Continuing and even extending the doctrine of conditional obedience, the Bavarian Military Penal Code of 1869 went so far as to establish the responsibility of the subordinate as the rule, and his irresponsibility as the exception.
provided:
"Art. 158: A subordinate who does not carry dination if:
(a) the Order is obviously con Prince of the Land;(b) if the order pertains to an fense is to be recognized."
by legislation, but the Reichstag rejected his proposal and instead adopted the following as Article 47 of the German military Penal Code:
"Art, 47: If through the execution of an responsible.
However, the obeying accomplice:
1) if he went beyond the order
2) if he knew that the order of tary crime or offense."
changing the word "civil" to "general", and as late as 1940 one of the leading commentators of the Nazi period, Professor Schwinge wrote:
"Hence, in military life, just as in i.e., blind obedience, does not exist."
is that a German soldier must obey orders though the heavens fall. The statement has become legendary. The facts prove that it is a myth.
When defendant Seibert was on the stand, his attorney asked him:
"Witness, do you remember a proverb said out of orders by soldiers?"
And the defendant replied:
"I do not know whether it was William I Emperor used the expression, 'If the to shoot his own parents'." such an order, he would execute it.
To the surprise of everybody he replied that he did not know. He declined to answer until he should have time to consider the problem. The Tribunal allowed him until the next morning to deliberate, and then the following ensued:
"Q. Now, if in accordance with this declara would you do so?
A. I would not do so.
Q. Then there are some orders which are isued by the Chief of State which may be disobeyed?
A. I did not regard this as an order by the a son to shoot his own parents.
I imagine it only as follows, Your Honor:
if I am an this village.
This is the only way in which Q. ..So. therefore, if you received such an order to obey it?
You would not obey it?
A. I would not have obeyed such an order.
Q. Suppose the order came down for you to us say, a Jew and his wife.
And in your ents.
Now, it is established beyond any absolutely guiltless, belmishless.
The they are Jews.
And you have this order Would you shoot the parents?
A. I would not shoot these parents."
Then, in summing up, the witness was asked:
"And, therefore, as a German officer, obey that order?"
And the answer was:
"I answered your example affirmatively, I said 'Yes, I could not have obeyed'."Although Defense Counsel's query intended to establish the utter helplessness of a German soldier in the face of a superior command, the inquiry finally resulted in the defendant's declaring that he would not only ignore the order of the supreme war lord to shoot his own parents, but also to shoot anybody else's parents.
He thus demonstrated that under his own interpretation of German Mlitary Law, he did have some choice in the matter of obeying Superior Orders. Why then did he participate in the execution of the parents of other people? Why did other defendants do the same if they had a choice, as the defendant Seibert indicated?
THE PRESIDENT: Judge Speight will continue with reading of the judgment.
JUDGE SPEIGHT: Subject: rance of their illegality. The sailor who voluntarily ships on a pirate craft nay not be heard to answer that he was ignorant of the probability he would be called upon to help in the robbing and sinking of other vessels.
He who willingly joins as illegal enterprise is charged with the natural development of that unlawful undertaking What SS man could say that he was unaware of the attitude of Hitler toward Jewry? in its 25 point program, which was never changed, its opposition to Jews and declared that a JEw could never be an equal citizen. Mein Kampf was dedicated to what may be called the "Master Race" theory, the doctrine of Aryan superiority over all other races. When the Nazis seized power in 1933, persecution of the Jews became an official state policy. Then in September 1935 came the well-known Nuremberg Laws which among other thin s deprived the Jews of German citizenship.
Mein Kampf was not a private publication. Its brazen voice rang throught Germany. One passage Was proclaimed over and over:
"The soil on which we now live was not fathers.
They had to conquer it by risking their lives.
So also in the of a triumphant sword."
the Jews. "Der Stuermer" and other publications spread the verbal poison of race hatred. Nazi leaders everywhere vilified the Jews, holding them up to public ridicule and contempt. In November 1938 an SS inspired and organized hoodlumism fell upon the Jews of Germany: synagogues were destroyed, prominent Jews were arrested and imprisoned, a collective fine of one billion marks was imposed, ghettos Were established, and now the Jews were compelled on orders of the Security Police to wear a yellow star on their breast and back.
Did the defendants not know of these things? Could they express surprise when, after this unbroken and mounting program of violence, plans were formulated for the "final solution of the Jewish problem"? extermination program or, if they did, they were not in accord with the sentiments therein expressed.
But again, a man who sails under the flag of skull and cross-bones cannot say that he never expected to fire a cannon against a merchantman.
When Bach Zelewski, SS General and many years member of the Party, was asked to explain the phenomenon of the Einsatzgruppen killings, he replied:
"I am of the opinion that when, for years, decades, the doctrine is preached that the Slav race is an inferior race, and Jews not even human, then such an outcome is inevitable." was not criminal. Although this proposition is at first blush opposed to all common sense, contrary to natural human reactions and out of harmony with the rudimentary law of cause and effect, yet it has been presented seriously by the defendants and in fact constitutes the major item of defense. Therefore, it cannot simply be dismissed as intolerable; reasons must be advanced as to why it is intolerable. of all grey-eyed people, regardless of age, sex or position. So long as the iris of the eyes responded to those light rays in the spectrum which make up grey, the possessor of such eyes was estined for evil days. Character, occupation and health could not influence nor could religion, politics and nationality alter the predetermined doom. The farmer at his plow, the teacher at her desk, the doctor at the bedside, the preacher in his pulpit, the old woman at her knitting, the children playing in the yard, the cooing infant at the mother's breat -- would all be condemned to death, if they saw the wondering world through the tell-tale grey eyes. a family, whose members, because of that unfathomable selection of life's chemicals and inscrutable mixing in the mystic alembic of time, all have grey eyes. Suddenly comes a thunderous knocking and the door bursts open. Steel-helemeted troopers storm in and with automatic guns and drawn pistol order the dismayed occupants into the street.
faces of mother and sister, the biting of lips of the helpless father and brother, the wild tramping of the invaders' boots through the house, the overturning of furniture, the smashing into cupboards, attics, wardrobes seeking out the hidden, horrified Grey-Eyed. The tearful farewell to home, the piling into the waiting truck of the pitiful family possessions, the bewildered mounting of the doomed Grey-Eyes. The truck rumbles forward, stops to pick up other Grey-Eyes and still more GreyEyes in the market square, at the corner store, in the parish church. are waiting chalk-faced, mute, staring at each other. The unloading of the truck, the guttural command to line up with the others. Then the red-mouthed machine rifles speaking their leaden sentences from left to right and from right to left. The villagers falling, some cut in two, others with blood flowing from their mouths and eyes, those grey eyes, pleading for understanding, for an explanation as to why? why? Others only wounded but piled into a ditch already dug behind them. The shooting party rides away, piteous hands uplift from the uncovered grave, we hear a moaning which, at times, decreases to a murmur, then mounts to a wail, then ceases altogether. and incredible than what has happened innumerable times in this very case. If one substitutes the word Jew for Grey-Eyed, the analogy is unassailable. ordered to kill the grey-eyed population, they would have balked and found no difficulty in branding such an act as a legal and moral crime. If, however, fifteen years before, the Nazi Party program had denounced all grey-eyed people and since then the defendants had listened to Hitler vituperating against the Grey-Eyes, if they had seen shops smashed and houses destroyed because Grey-Eyes had worked and lived there; if they had learned of Himmler's ordering all Grey-Eyes into concentration camps, and then had heard speeches in Pretzsch wherein the mighty chieftains of the SS had declared that all Grey-Eyes were a menace to Germany -- if this had happened, can we be so certain that the defendants would not have carried out a Fuehrer-Order against grey-eyed people?
And in that event, would there not have been the same defense of Superior Orders? did not come to pass, the defendants can denounce, as we assume they would, this hypothetical massacre, how can they less denounce a slaughter which did occur and under circumstances no less harrowing than the one pictured only for the purpose of illustration? it was entirely different with the Jews. They were bearers of Bolshevism. If that was their guilt, then the fact that they were Jews was only incidental. They were being exterminated not because of Judaism but because of Bolshevism. If by that argument they mean that a Jew was to be executed only because he was a Bolshevik, why was it to be assumed that a Russian Jew was any more bolshevistic than a Russian Russian? Why should Alfred Rosenberg, chief Nazi philosopher, be less inclined biologically to Communism than his obscure Jewish namesake and neighbor? What saved Benjamin Disraeli, leader of the Conservative Party and several times prime minister of Great Britain, from being a Bolshevist? And had he lived in 1941, would Hitler have declared him a carrier of Bolshevism? simply destined to be Bolshevistic, but it is a demonstrable truism that, if the einsatzkommandos themselves had adopted Jewish babies, those babies would have grown up to be staunch SS men. In point of fact, during the war, thousands of Czech, polish, Russian, and Yugoslav children were taken into Germany to be reared as Germans. No one knows how many Jewish offspring were included in these carloads of kidnapped children because it was seriously assumed that so long as they were blonds they could not belong to the hated race.
written by one of the defendants in which he quoted from Heydrich:
"Many of the Jews listed in your register are already known for continually trying to deny that they belong to the Jewish race by all possible and impossible reasons. It is, on the whole, in the nature of the matter that half-breeds of the first degree in particular try at every opportunity to deny that they are Jews.
"You will agree that in the third year of the war, there are matters of more importance for the war effort, and for the Security Police and the Security Service as well, than worrying about the wailing of Jews, making tedious investigations and preventing so many of my co-workers from other and much more important tasks. If I started scrutinizing your list at all, I only did so in order to refute such attacks by documents once and for all.
" I feel sorry to have to write such a justification six-and-ahalf years after the Nuremberg Laws were issued. The defendant noted in his letter his enthusiastic accord with the sentiments expressed by Heydrich and added on his own that consideration for the Jews was "softness and Humanitarian day- dreaming". He also declared that it was unthinkable that a German should listen to Mendelssohn's music, and, to hearken to Offenbach's "Tales of Hoffman", simply revealed ignorance of National Socialistic ideals. Yet, he saw nothing unidealistic about invading the office of his superior, the General Commissioner of White Ruthenia, trained in the same school of Nazi idealism, entered a complaint against the defendant's action, not because seventy innocent human beings had been killed but because a subordinate had dared to come into his office and shoot his Jews without telling him about it. the propriety and correctness of removing gold fillings from the teeth of the Jews designated for killing.
obvious, but perhaps it is not so obvious. Otherwise the arguments by and on behalf of the defendants might not have been presented with such insistence. Furthermore, this is the time and place to settle definitively, insofar as it is part of the issue in this trial, the business of the so-called Jewish problem. to be considered on either side. But what in Nazi Germany was so delicately called the "Jewish problem", was a program, that is, an antiJewish program of opporession leading finally to extermination. The socalled Jewish problem was not a problem but a fixation based upon the doctrine that a self-styled "master-race" may exterminate a race which it considers inferior. Characterizing the same proposition as the "Jewish meance " is equally devoid of sense. In fact, if it were not so tragic, the National Socialistic attitude toward the Jews could only be considered nonsensical. the Crimea. In the same area they came across a sect known as Karaimians. The Karaiminas resembled the Krimtschaks in that they shared the same Jewish religion. However, the ethnic experts in Berlin after some kind of study, concluded that the Karaiminas had no Jewish blood in their veins and were, therefore, exempt from the extermination order. Thus, although the Karaimians had Jewish religion in their souls, they did not have that kind of corpuscles in which the seeds of Bolshevism ride. Hence they had the right to live. If one can picture an einsatz unit rounding up the worshippers in a synagogue and distinguishing the Karaiminas from the Krimtschaks, releasing the former and killing the latter, one is privileged to decide whether the Nazi attitude toward Jewry was not something which could well fall into the category of nonsense, that is, tragic nonsense. with Hebrew arteries. Although any other person could change his religion, politics, allegiance, nationality, yet, according to the National Socialist ideology, there was nothing the Jew could do.
It was a matter of blood, but no one has testified as to the omniscient wisdom which counted and evaluated the offending corpuscles.
PRESIDING JUDGE: We will now take a recess of 15 minutes.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Judge Speight continues with the reading of the Judgment.
JUDGE SPEIGHT: One thing can be said about the Fuehrer Order. It was specific, it was unambiguous. All Jews were to be shot. And yet, despite the unambiguity of this order, in wpite of the unappealable and infallible pronunciamento that Jews were absolutely outside the pale, defendant after defendant related his great consideration for the Jew. Scores of affidavits were submitted, in behalf of nearly all the accused, demonstrating their generous conduct towards some individual Jews in Germany. One of the defendants related, in a pre-trial interrogation, how he had even lived with a Jewish woman. He wished to prove by this that he was entirely devoid of prejudice. equals in Germany, why did they consider them sub-human in Russia? If they did not recognize them as a potential danger in Germany, why should they regard them as a threat in the Crimea 2,000 miles away? It is not too much to say that most of the Jews did not know of Hitler and his doctrines until the Einsatzgruppen arrived to kill them. systematic attempts to destroy the graves of the slain as described in official German documents are interesting in that they shed some light on the mental attitude of the executioners. Did they regard the executions as culpable acts, ocular evidence of which should be destroyed? The defendant Blobel in his affidavit, signed June 18, 1947, stated that in June 1942 he was entrusted by Gruppenfuehrer Mueller with the task of removing the traces of the executions carried out by Einsatzgruppen in the East. He leaves nothing to the imagination:
"I muself witnessed the burning of corpses in a mass grave near Kiew, during my visit in August.
This grave was about 55 m long, 3 m wide, and 2 1/2 deep.
When the cover set on fire.
It took about two days for the grave to burn down.
I myself saw that the grave became red-hot right down to the ground.
After the grave was filled "Owing to the approach of the front, it was not possible gruppen."
out the incriminating evidence of the killings, that he even tried to destroy the corpses by means of dynamite. Rudolf Hoess, Commandant of the Auschwitz concentration camp, who supervised these experimentations, stated that the dynamiting method was not successful:
"Blobel constructed several experimental ovens and used wood and gasoline as fuel.
He tried to destroy the corpses by means of dynamiting them, too; this method was rather unsuccessful."
Hence other means were used:
"The ashes, ground to dust in a bone mill, were thrown in the vast forests around.
Staf. Blobel had the order and to eliminate them.
... The work itself was carried out ular task, were shot.
Concentration camp Auschwitz had to furnish continuously Jews for this kommando."
realizes that the act he is called upon to perform is a crime, he may not refuse its execution without incurring serious consequences, and that this, therefore, constitutes duress. Let it be said at once that there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns. The threat, however, must be imminent, real and inevitable. No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever. Nor need the peril be that imminent in order to escape punishment. But were any of the defendants coerced into killing Jews under the threat of being killed themselves if they failed in their homicidal mission?