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?
The test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order. If the second proposition be true, the plea of Superior Orders fails. The doer may not plead innocence to a criminal act ordered by his superior if he is in accord with the principle and intent of the superior. the execution of the illegal act, the doer may not plead duress under Superior Orders. are pooled in the planning and execution of an illegal act, the subordinate may not subsequently protest that he was forced into the performance of an illegal undertaking. act. It does not mean superiority only in rank. It could easily happen in an illegal enterprise that the captain guides the major, in which case the captain could not be heard to plead Superior Orders in defense of his crime. of the illegal order, that the order is obviously but one further logical step in the development of a program which he knew to be illegal in its very inception, he may not excuse himself from responsibility for an illegal act which could have been foreseen by the application of the simple law of cause and effect. From 1920, when the Nazi Party Program with its anti-Semitic policy was published, until 1941 when the liquidation order went into effect, the evermounting severity of Jewish persecution was evident to all within the Party and especially to those charged with its execution. One who participated in that program which began with Jewish disenfranchisement and depatriation and lead, step by step, to deprivation of property and liberty, followed with beatings, whippings, and measures aimed at starvation, may not plead surprise when he learns that what has been done sporadically, namely, murder, now is officially declared policy.
On January 30, 1939, Hitler publicly declared in a speech to the Reichstag that if war should come it would mean "the obliteration of the Jewish race in Europe". expected to anticipate what the enterprise will logically lead to. opposition of the doer must be constant. It is not enough that he mentally rebel at the time the order is received. If at any time after receiving the order he acquiesces in its illegal character, the defense of Superior Orders is closed to him. order when they first heard it. This assertion is, of course, contradicted by the other assertion made with equal insistence, and already disposed of, that the Fuehrer Order was legal because the ordered executions were needed for the defense of the Fatherland. But if they were shocked by the order, what did they do to oppose it? Many said categorically that there was nothing to do. It would be enough, in order to escape legal and moral stigmatization to show the order was parried every time there was a chance to do so. The evidence indicates that there was no will or desire to depreciate its fullest intent. When the defendant Braune testified that he inwardly opposed the Fuehrer Order, he was asked as to whether, only as a matter of salving his conscience in the multiplicitous executions he conducted, he ever released one victim. The interrogation follows:
"Q. But you did not in compliance with that order attempt woman or child?
A. I have already said that I did not search for children.
I can only say the truth. There were no exceptions, and I did not see any possibility."
if one will. But it may not be lightly charged with inefficiency. If any of these kommando leaders had stated that they were constitutionally unable to perform this cold-blooded slaughter of human beings, it is not unreasonable to assume that they would have been assigned to other duties, not out of sympathy or for humanitarian reasons, but for efficiency's sake alone. In fact Ohlendorf declared on this very subject:
"In two and a half years I had sufficient occasion order in their inner opinion.
Thus, I forbade the some of these men, and I sent some back to Germany."
by refusing cooperation with the Army. He testified that the Chief of Staff in the field said to him that if he, Ohlendorf, did not cooperate, he would ask for his dismissal in Berlin. declared that all those who could not reconcile their conscience to the Fuehrer Order, that is, people who were too soft, as he said, would be sent back to Germany or assigned to other tasks, and that, in fact, he did send a number of people including commanders back to the Reich. pointed out, but it is not enough for a defendant to say, as did Braune and Klingelhoefer, that it was pointless to ask to be released, and, therefore, did not even try. Exculpation is not so easy as that. No one can shrug off so appalling a moral responsibility with the statement that there was no point in trying. The failure to attempt disengagement from so catastrophic an assignment might well spell the conclusion that the defendant involved had no deep-seated desire to be released. He may have thought that the work was unpleasant but did it nonetheless. Even a professional murderer may not relish killing his victim, but he does it with no misgivings. A defendant's willigness may have been predicated on the premise that he personally opposed Jews or that he wished to stand well in the eyes of his comrades, or by doing the job well he might earn rapid promotion.
The motive is unimportant if he killed willingly. driving through the country, Blobel pointed out to him a long grave and said: "Here my Jews are buried." One can only conclude that Blobel was proud of what he had done. "Here my Jews are buried". Just as one might speak of the game he had bagged in a jungle. they were straight-jacketed in their obedience to Superior Orders, the majority of them have, with testimony and affidavits, demonstrated how on numerous occasions they opposed decrees and orders handed down by their superiors. In an effort to show that they were not really Nazis at heart, defendant after defendant related his dramatic clashes with his superiors. If one concentrated only on this latter phase of the defense one would conclude that these defendants were all ardent rebels against National Socialism and valiantly fought against the inhuman proposals put to them. Thus, one affiant says of the defendant Willy Seibert that he "was strongly opposed to the measures taken by the Party and the government".
Of Steimle an affiant said: "Many a time he opposed the Party agencies and so-called superior leaders." Another affidavit not only states that Steimle opposed violence but that in his zeal for justice he shrewdly joined the SD in order to be able "to criticize the shortcomings in the Party". Again it was stated that "repeatedly his sense of justice led him to oppose excesses, corruptions and symptoms of depravity by party-officers."
Of Braune an affiant states, "over and over again Dr. Braune criticized severely our policy in the occupied territories (especially in the East, Ukraine and Baltic States)". opposition to tyranny and injustice in his own camp. He bitterly opposed the Reich Kommissar Terboven, cancelled his orders, condemned large-scale operations, released hostages and freed the Norwegian State Minister Gerhardsen.
One affidavit said that in these actions "Braune nearly always went beyond his authority". And yet in spite of this open rebellion Braune was not shot or even disciplined. Why is it that in Norway he acted so differently from the manner in which he performed in Russia? Was he more the humanitarian in Norway? The answer is not difficult to find. One of the affiants very specifically states:
"Right from the beginning of our conferences, Braune Fehlis continually carried out.
He did not expect danger of increasing their spirit of resistance."
agree with them. But when they ideologically espoused an order such as the Fuehrer Order they had no interest in opposing it.
THE PRESIDENT: Judge Dixon will continue with the reading of the Judgment. German court. In 1921 two officers of the German U-boat 68 were charged with violation of the laws of war in that they fired at and killed unarmed enemy citizens seeking to escape from the sinking Hospital Ship H.M.S. Llandovery Castle. The defendants pleaded lack of guilt in that they had merely carried into effect the order given them by their commander, First Lieutenant Patzig. The German Supreme Court did find as a fact that Patzig ordered his subordinates Diethmar and Boldt to fire at the life boats, but it adjudicated them guilty nonetheless, stating:
"It is certainly to be ordered in favor of any doubt whatever against the law.
This less people.
They quickly found out the boats when these were stopped.
They could obey.
As they did not so they must be punished."
for the defense asked in behalf of their clients: What could they have done? After all, the defendants were soldiers and were required to obey orders. Ordinarily, in war, the proposition of unquestioning obedience involves a set of circumstances which subjects the subordinate to the possibility of death, wounding or capture. And it is tradional in such a situation that, in consonance with the honor of his calling, the soldier does not question or delay but sets out stoically to face the peril and even self-immolation. Lord Tennyson immortalized this type of glorious self-sacrifice when he commemorated the Cavalry Charge at Balaklava in the Crimea:
"Theirs not to make reply, Theirs but to do and die."
fate, were operating in the same Crimea and surrounding territory about one hundred years later, were not, however, facing the same situation which confronted Tennyson's Light Brigade. The einsatz battalions were not being called upon to face shot and shell.
They were not ordered to charge into the mouths of cannon. They were called upon to shoot unarmed civilians standing over their graves. one-sided a battle. No soldier could be accused of cowardice in seeking relief from a duty which was, after all, not a soldier's duty. No soldier or officer attempting escape from such a task would be pleading avoidance of a military obligation. He would simply be requesting not to be made an assassin. And if the leaders of the Einsatzgruppen had all indicated their unwillingness to play the assassin's part, this black page in German history would not have been written. relieved? They could have been less zealous in the execution of the inhuman order. Whole populations of cities, districts and wide lands were within their power. No Roman emperor had greater absolutism of decision over life and death than they possessed in their areas of operation. They were not ordered within any given town to shoot a precise number of people and a fixed number of women and children. But men like Braune could see no reason for making exceptions. to avoid the order by subterfuge, because had they done so, their successors would accomplish the task and thus nothing would be gained anyway. The defendants are accused here for their own individual guilt. No defendants knows what his successor would have done. He could possibly have also indicated his reluctance and with a succession of refusals properly submitted, the order itself might have lost its efficacy. But in any event no execution would have taken place that day. One defendant stated that to have disobeyed orders would have meant a betrayal of his people. Does he really mean that the German people, had they known, would have approved of this mass butchery? a little garden in which to grow a plant or two than the promise of vast lands beyond the horizon, will here learn how they were betrayed by their supposed champions.
Here they will also learn of the inhumanity and the oppression and the shedding of innocent blood committed by the regime founded on the Fuehrer prinzip.
In his attack on Control Counsil Law No. 10, Dr. Mayer declared that it invalidates two fundamental principles of the legal systems of all civilized nations:
"(1) The principle: nulla poena sine lege.
(2) Validity of the excuse of having acted under order."
The Tribunal has already disposed of objection number 1. Objection number 2 is no more convincing than was objection number 1. Law No. 10 does not invalidate the excuse of Superior Orders. It states:
"(b) The fact that any person acted pursuant in mitigation."
Dr. Mayer, like others, misreads this provision and substitutes for the word " crime" some other word, possibly "act". This makes the provision to read that anyone acting pursuant to the orders of his Government or superior does not free himself from responsibility for any act". But the provision specifically states "crime". Unless it is established that the deed in question is a crime then naturally there needs to be no explanation for its commission. If, however, the act is a crime then there can be no excuse for its commission. No superior can authorize a crime. No one can legalize what is demonstrated categorically and definitely to be a crime. prove that the acts of the Einsatzgruppen were not crimes, that they were acts of self defense committed in accordance with the rules of war. If, however, it is proved that they were crimes, then, naturally, the approval of another criminal would not make the acts any the less crimes.
Once it is juridically established that a certain act is a crime, then all those who participated in it, both superior and subordinates are accomplices. offense it was? Hitler was not above International Law. Let us suppose that in 1935 Hitler ordered one of his men to go to Siam and there assassinate its King. Would it be argued that the assassin in that situation would be inmmune because acting under Superior Orders? Any judicial inquiry would establish that the Siam assassin had committed a crime and the fact that he had acted in pursuance to the order of his Government or a superior could not possibly free him from responsibility for the crime. This is exactly what Control Council Law No. 10 says, and this is what the law has always said, or ever since there was International Law. goes much farther than Control Council Law No. 10. Under the German Code the subordinate may be convicted even if no crime was actually committed. It is sufficient if the order aims at the commission of a crime or offense. The German Code makes the obeying subordinate responsible even for any "civil" or "general offenses", i.e. for comparatively insignificant breaches of law which are not contemplated in the Allied law. Nor does the German Code, as contrasted to the Allied law, mention the defense of Superior Orders as a possible mitigating circumstance. of Land Warfare in support of their position on Superior Orders. The section in question, after listing various offenses against the rules of warfare, declares:
"..... Individuals of the armed forces will whose hands they may fall."
"individuals" is intended to apply to individuals who make up a military unit, that is, ordinarily, soldiers of lower rank. It applies naturally also to officers, but only provided they are serving under another officer of a higher rank. Unless one accepts this meaning the word "commanders" appearing in his second sentence would be entirely elusive as to its significance. But it is to be noted that in square juxtaposition to the men (and perhaps officers) who make up the military unit, the Article puts the "commanders" of such units; and by "commanders" is obviously meant the officers pr acting officers, in charge of any armed unit. ion, and the captain of a company, the sergeant or 2nd lieutenant may be in charge of a platoon. If the unit commander were not responsible, and the responsibility climbed upward from grade to grade, the result would be that the only one who could ever be accountable for an illegal order would be the chief executive of the nation, that is, the President, King or Prime Minister, depending on the country involved. That such singular responsibility was not intended is evidenced in the use of the plural "commanders" instead of the singular "commander". Making this meaning absolutely clear, the provision specifically mentions two types of "commanders" who are to be held responsible:
(a) commanders who order their units to commit war crimes; and (b) commanders if the troops under their authority be responsible -- whether he gives the order to commit war crimes, or whether the troops under his authority commit them at the behest of somebody else, since he has the control over the troops and is responsible for their acts.