of einsatz units, they clearly would fall within the provisions of Article 347, American Rules of Land Warfare. This Article 347 was repealed in 1944, but it has here been discussed at length because Defense Counsel made much of it, and because it was still law at the time the Einsatzgruppen were operating. Article 347, reference is made to Article 64 of the American Articles of War which announces punishment for the disobedience of any lawful command of a superior officer. Obviously if the order is unlawful he may not be punished for refusing to obey it. ted as it had been made by some legal commentators. In considering the law in this matter we must keep in mind that fundamentally there are some legal principles that stand out like oak trees. Much underbrush has grown up in the vicinity and they seem to confuse the view. But even the most casual observation will catch on the legal landscape these sturdy oaks which announce that:
1. Every man is presumed to intend the consequences of 2. Every man is responsible for those acts unless it be 3. Deciding the question of free will, all the circum impossible to read what is in a man's heart.
Dr. Aschenauer correctly referred to one of these trees in Lord Manfield's charge to the jury in Stratton's case, (1780) Howell, State Trials, Vol. 21, p. 1062-1224:
"A state of emergency is a reason for tended it.
If there is irresistible, has no volition with regard to the deed."
Was there irresistible, physical duress? Was there volition with regard to the deed? The answering of these two questions will serve as safe guides in applying the criteria herein announced in the discussion on the subject of Superior Orders. they were in no way involved in the homocidal operations of the einsatz units. These denials of participation took various forms. It was stated that the defendant, although traveling with the kommando, never learned of executions and certainly did not participate in them, it was asserted that, although the defendant participated in executions, the executees were partisans, saboteurs, looters, end the like; and it was also claimed on behalf of some of the defendants that, although they actually ordered and supervised executions, these executions always followed an investigation in the case involved. No one was shot unless he was proved guilty of a crime.
How thorough were these investigations if and when they took place? An order issuing from the Fuehrer's headquarters on June 6, 1941 -that is, 15 days before the beginning of the Russian war -- spoke of the conduct of the German forces entering Russia, One paragraph discussed the disposition of political commissars who "for the time being" were not to be executed unless they committed or were suspected of hostile acts. Then came this very significant instruction:
"As a matter of principle in deciding the be improvable."
execute a man more on his looks than on evidence. One of the defendants corroborated this practice. He was asked what he would do if he came upon a person speaking to four or five people in a room, advocating Communism but in no way opposing the Germans. The defendant replied:
"I would have got a look at the man, and if I I would have had him shot.
The actual speech cally."
He was asked further:
"So that you would listed to the speech and have him shot.
That is what we understood by your answer?"
And the reply was a categorical "Yes". quiries for the purpose of obtaining from the victim information which would enable the executioners to locate and seize other victims. For instance, the defendant Ott testified from the witness stand, as will be noted later, how arrested persons were arrested, "investigated", and shot. soldiers and that their only job was combat. But if the job with the Einsatzgruppen was strictly military, why did the High Command not send military men to do it? Why did they choose Ohlendorf who had had no military training of any kind to head a military organization? Very few of the kommando leaders had been soldiers, and the brief three or four weeks' training at Pretzsch, prior to marching into Russia, consisted only of drilling and target practice on the rifle range. It is obvious that they were being sent into Russia not as combat soldiers, but as ideological exponents. In the field they were a travelling RSHA, they were a Gestapo on wheels.
Report No. 128 describes the executions by Einsatzgruppe C of 80,000 persons and explains that 8,000 of them were "convicted of anti-German or Bolshevistic activities".
The report goes on further to say:
"Even though approximately 75,000 Jews the Jewish problem."
had achieved a complete liquidation of the "Jewish problem, and that, in the larger cities, after executions, all Jews had disappeared". It is evident from this statement that the main objective of the kommandos was to kill Jews, not partisans. United States Basic Field Manual, Rules of Land Warfare:
"If the people of a country, or any portion tection."
Dr. von Stein, however, failed to show that the people in the respective German-occupied areas took part in any uprising. On the contrary, it was the einsatz leaders who attempted to stir up popular tumult by instigating pogroms. served in Russia, he never saw a Jew, and that he never heard of the Fuehrer-Order. Although his kommando, prior to his arrival in Russia, had admittedly slaughtered thousands of Jews, no one ever told him of this nor did he ever hear of it. This is simply incredible. And, in support of this admittedly incredulous utterance, an even more extraordinary assertion was made by his attorney, namely, that Heydrich was anxious for Haensch not to know about these things since they had nothing to do with his work in Berlin. his kommando had killed 10,000 to 15,000 people, his attorney declared in a final summation that Blobel's duties were purely administrative-adding, to be sure that these administrative duties were to be interpreted in their "widest sense".
One of Blobel's administrative duties was to conduct executions. History will be his debtor for the authoritative account he rendered on mass-executions from the standpoint of the spirit and philosophy of slayer and slain. He was asked at the trial whether the doomed, as they were being led to their waiting graves, ever attempted to break away before the shots were fired. He replied that there was no resistance and this surprised him greatly. The following interrogation then occurred:
"Q. You mean that they resigned themselves easily to what was awaiting them?
A. Yes, that was the case. That was the case with these people.
Human life was not as valuable as it was with us.
They did not care so much.
They did not know Q. In other words, they went to their death quite happily?
A. I would not say that they were happy.
them. Of course, they were told what Q. And did that make the job easier for you, the fact that they did not resist?
A. In any case the guards never met any re Everything went very quietly.
It took Q. In other words, your pity was more for victims?
A. Our men had to be cared for.
Q. And you felt very sorry for them?
A. Yes, these people experiences a lot, psychologically."
Thus, to murder was added criminal impertinence. The victim is shown to be inhuman while the executioner is to be pitied. The condemned is put in the wrong and the slayer in the right. A person is robbed of his all -- his very life -- but it is the assassin who is the sufferer.
To these people "human life was not as valuable as it was to us". Thus we behold the moral supremacy of the murderer over the depravity of the massacred. "Our men who took part in the executions suffered more from nervous exhaustion that those who had to be shot." "administrative duties" of one of the leaders of the Einsatzgruppen in land not his own.
Court No. II, Case No. IX executions, explained that they had not killed any innocent persons but had merely shot partisans, to be sure, not in combat, but punitively.
This bald statement in itself does not suffice to exonerate one from a charge of unlawful killings. Article I of the Hague Regulations provides:
"The laws, rights, and duties of war ing the following conditions:
1. To be commanded by a person responsible for his 2. To have a fixed distinctive emblem recognizable 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war."
an armed civilian found in a tree top sniping at uniformed soldiers, is not such a lawful combatant, and can be punished even with the death penalty, if he is proved guilty of the offense. fighters in the war against an invading army, if they fully comply with the conditions just mentioned, can be put outside the law by the adversary. As the Hague Regulations state expressly, if they fulfill the four conditions, "the laws, rights and duties of war" apply to them in the same manner as they apply to regular armies. characterizing a person a partisan he may be shot out of hand. But it is not so simple as that. If the partisans are organized and are engaged in what International Law regards as legitimate warfare for the defense of their own country, they are entitled to be protected as combatants.
Court No. II, Case No. IX Einsatzgruppen operated, the so-called partisans had wrested considerable territory from the German occupant, and that military combat action of some dimensions was required to re-occupy those areas.
In belligerent occupation the occupying power does not hold enemy territory by virtue of any legal right. On the contrary, it merely exercises a precarious and temporary actual control. This can be seen from Article 42 of the Hague Regulations which grants certain well limited rights to a military occupant only in enemy territory which is "actually placed" under his control. to the enemy, he is not carrying out a police performance but a regular act of war. The enemy combatants in this case are, of course, also carrying out a war performance. They must, on their part, obey the laws and customs of warfare, and if they do, and then are captured, they are entitled to the status and rights of prisoners of war. in evidence in this case, show, however, that combatants were indiscriminately punished only for having fought against the enemy. This is contrary to the law of war.
THE PRESIDENT: The Presiding Judge continues with the reading.
From time to time the word "reprisals" has appeared in the Einsatzgruppen reports. Reprisals in war are the commission of acts which, although illegal in themselves, may, under the specific circumstances of the given case, become justified because the guilty adversary has himself behaved illegally, and the action is taken in the last resort, in order to prevent the adversary from behaving illegally in the future. Thus, the first prerequisite to the introduction of this most extraordinary remedy is proof that the enemy has behaved illegally. While generally the persons who become victims of Court No. II, Case No. IX the reprisal are admittedly innocent of the acts against which the reprisal is to retaliate, there must at least be such close connection between these persons and these acts as to constitute a joint responsibility.
Article 50 of the Hague Regulations states unequivocally:
"No general penalty, pecuniary or otherwise, and severally responsible."
in alleged reprisal for the killing of 21 German soldiers near Topola, were taken from concentration camps in Yugoslavia, hundreds of miles away, it is obvious that a flagrant violation of International Law occurred and outright murder resulted. That 2,100 people were killed in retaliation for 21 deaths only further magnifies the criminality of this savage and inhuman so-called reprisal.
Hyde, International Law, Vol. III, page 35, has this to say on reprisals:
"A belligerent which is contemptuous of like, lacks the requisite excuse."
or members of the population did commit acts which were in themselves unlawful under the rules of war, it would still have to be shown that these acts were not in legitimate defense against wrongs perpetrated upon them by the invader. Under International Law, as in Domestic Law, there can be no reprisal against reprisal. The assassin who is being repulsed by his intended victim may not slay him and then, in turn, plead self-defense. wrong for which they are to retaliate. The British Manual of Warfare, after insisting that reprisals must be taken only in last resorts, states:
Court No. II, Case No. IX "459.
....Acts done by way of reprisals mitted by the enemy."
Similarly, Article 358 of the American Manual states:
"(b) When and how employed:
(c) Form of reprisals:
reprisals.....should not be ex violations committed by the enemy."
quotes General Halleck on this subject:
"Retaliation is limited in extent by barous cruelty."
(Stowell American Journal of International Law, Vol.
36, p. 671) to the extent to which they respected the limitations laid down by International Law on reprisals in warfare.
follows:
"At the trial of any individual member bunal may declare (in connection with convicted) that the group or organiza member was a criminal organization."
organizations declared criminal by the International Military Tribunal was to be considered proved and not to be questioned in any succeeding proceedings. Control Council Law No. 10 defined membership in any Court No. II, Case No. IX organization declared criminal by the International Military Tribunal as a crime.
a great deal of space to the discussion of Count III in the Indictment. To the extent that the discussion has to do with the facts, it is welcome and helpful. So far as the law on the subject is concerned, it has been stated completely and definitively by the Judgment of the International Military Tribunal and therefore needs no amplification here. The International Military Tribunal declared the SS, SD and the Gestapo to be criminal organizations within the purview of the London Charter. The pertinent provisions of that Judgment declaring these organizations criminal and defining the categories of membership therein, follow:
(At this point the following was not read but at the direction of the President is included in the transcript:)
"The SS was utilized for purposes which ers of war.
....In dealing with the SS the "The Tribunal declares to be criminal Court No. II, Case No. IX ted no such crimes.
The basis of this against Humanity connected with the war;1 September 1939."
"The Gestapo and SD were used for purposes ars of war.
....In dealing with the Gestapo specified above.
....In dealing with the SD "The Tribunal declares to be criminal with crimes.
The basis for this finding is connected with the war; this group de Court No. II, Case No. IX.
"In dealing with the Gestapo the Tribunal have been specified above."
(At this point the President continues reading:) judgments the Tribunal here declares that where it finds a defendant guilty under Count III it will be because it has found beyond a reasonable doubt from the entire record that he became or remained a member of the criminal organization involved subsequent to September 1, 1939 under the conditions declared criminal in the Judgment of the International Military Tribunal. against humanity. The concept of war crimes is not a new one. From time immemorial there have existed rules, laws and agreements which kept opposing forces within bounds in the matter of the conduct of warfare, the treatment of prisoners, wounded persons, civilian noncombatants, and the like. Those who violated these rules were subject to trial and prosecution by both the country whose subjects they were and by the country whose subjects they maltreated. heretofore existed only in the heart of mankind, has now been written into the books of men as the law of Humanity. This law is not restricted to events of war. It envisages the protection of humanity at all times. The crimes against which this law is directed are not unique. They have unfortunately been occurring since the world began, but not until now were they listed as international offenses. The first count of the Indictment in this case charges the defendants with Court No. II, Case No. IX.
crimes against humanity. Not crimes against any specified country, but against humanity. Tribunal is convoked to determine why. This is not a new concept in the realm of morals, but it is an innovation in the empire of the law. Thus a lamp has been lighted in t he dark and tenebrous atmosphere of the fields of the innocent dead. tofore were enjoined only by the respective nations now fall within the prescription of the family of nations. Thus murder becomes no less murder because directed against a whole race instead of a single person. A Fuehrer-Order, announcing the death of classifications of human beings can have no more weight in the scales of international justice than the order of a highwayman or pirate.
and barbarities, a bright light shines through it all if one recalls the efforts made in the past in behalf of distressed humanity. President Theodore Roosevelt in addressing the American Congress, said in 1903:
"There are occasional crimes committed on so those who have suffered by it."
that roops be sent to Cuba "in the cause of humanity-
or mitigate." of all mankind for amedium by which crimes against humanity could be stopped and the instigators puniched. One recommended diplomatic protest, the other armed intervention. Both methods have been used but they do not express the ideal. The former is often ineffectual and the latter achieves its benevolent objective only at further expenditure of blood. No recourse was had to law because there was no jurisprudence on the subject, nor was there any legal procedure to punish the offenders. Humanity could only plead at the doors of the mighty for a crumb of sympathy and a drop of compassion. a tribunal in which to proclaim its rights. Humanity need not plead for justice with sobs, tears, and piteous weeping. It has been de monstrated here that the inalienable and fundamental rights of common man need not lack for a court to proclaim them and for a marshal to execute the court's judgments. Humanity can assert itself by law.
It has taken on the robe of authority. Allied powers, 19 other nations expressed their adherence to that Agreement. In giving effect to the London Agreement and the Charter pursuant thereto, as well as the Moscow Declaration of October 30, 1943, the Allied Control Council formulated its Law No. 10 which treated, among other things, of crimes against humanity. Those who are indicted under this provision, however, are not responding alone to the nations which have approved the principles expressed in the London and Moscow Agreements, they are answering to humanity itself, humanity which has no political boundaries end no geographical limitations. Humanity is man itself. Humanity is the race which will go on in spite of all the fuehrers and dictators that little brains and smaller souls can elevate to platforms of tinsel poised on bastions of straw. sale and systematic violation of life and liberty. It is to be observed that insofar as international jurisdiction is concerned the concept of crimes against humanity does not apply to offenses for which the criminal code of any well-ordered State makes adequate provision. They can only come within the purview of this basic code of humanity because the State involved, owing to indifference, impotency or complicity, has been unable or has refused to halt the crimes and punish the criminals. on July 11, 1947 the Counselor of the Vatican defined crimes against humanity in the following language:
"The essential and inalienable rights of man cannot vary in time and space.
They cannot be interpreted and limited for they are essentially immutable and eternal.
Any injury...
enslavement, against the life, freedom of opinion.....the moral or physical integrity of the family.
....or the dignity family or profession, is a crime against humanity."
Charter, declared that the Charter's provisions limited the Tribunal to consider only those crimes against humanity which were committed in the execution of or in connection with crimes against peace and war crimes. The Allied Control Council, in its Law No. 10, removed this limitation so that the present Tribunal has jurisdiction to try all crimes against humanity as long known and understood under the general principles of criminal law. is also not restricted as to nationality of the accused or of the victim, or to the place where committed, while the overwhelming majority of those killed in the present case were Soviet citizens, some were German nationals. A special report prepared by Einsatzgruppe A, and previously quoted in another connection, declared:
"Since December 1940 transports containing Jews had arrived at short intervals from the Reich.
Of these *---*.....all evacuated Jews who survive the winter can be put into this camp (apart of the Riga ghetto) in the Spring.
Only a small section of the Jews from the Reich is capable of working.
About 70 to 80% are women and children or old people unfit for work.
The death rate is rising continually also as a result of the extraordinary hard winter."
3,500 Jews "most of whom had been sent to Minsk from Vienna,..... Bremen and Berlin." ment which covers, inter alia, crimes against German nationals. international tribunals have adjudicated crimes against humanity as an international offense, this does not, as already indicated, mean that a new offense has been added to the list of transgressions of man. Nurnberg has only demonstrated how humanity can be defended in court, and it is inconceivable that with this precedent extant, the law of humanity should ever lack for a tribunal.
Where law exists a court will rise. Thus, the court of humanity, if it may he so termed, will never adjourn. The scrapping of treaties, the inditement to rebellion, the fomenting of international discord, the systematic stirring up of hatred and violence between so-called ideologies, no matter to what excesses they nay lead, will never close the court doors to the demands of euity and justice. It would be an admission of incapacity, in contradiction of every self-evident reality, that mankind, with intelligence and will, should be unable to maintain a tribunal holding inviolable the Law of Humanity, and, by doing so, preserve the human race itself. standing between himself and his neighbor. Each group of people through the ages has carried a stone for the building of a tower of justice, a tower to which the persecuted and the downtrodden of all lands, all races and all creeds may repair. In the Law of Humanity we behold the tower.
THE PRESIDENT: Judge Speight will continue.
JUDGE SPEIGHT: Subject, Simferopol. is without bitterness. It can only be deplored that all this could happen. The defendants are not untutored aborigines incapable of appreciation of the finer values of life and living. Each man at the bar has had the benefit of considerable schooling. Eight are lawyers, one a university professor, another a dental physician, still another an export on art. One, as an opera singer, gave concerts throughout Germany before he began his tour of Russia with the Einsatzkommandos. This group of educated and well-bred non does not even lack a former minister, self-unfrocked though he was. Another of the defendants, bearing a name illustrious in the world of music, testified that a branch of his family reached back to the creator of the "Unfinished Symphony", but one must remark with sorrow that it is a far cry from the Unfinished Symphony of Vienna to the finished Christmas massacre of Simferopol, in which the hapless defendant took an important part.
that the discussion of enormous atrocities was constantly interspersed with the academic titles of the persons mentioned as their perpetrators. If these men have failed in life, it cannot be said that it was lack of education which led them astray, that is, lack of formal education. there is no reason to disbelieve, came of devout parents. Some have told how they were born in the country and that, close to Nature and at their mothers' kneww, learned the virtues of goodness, charity and mercy. It could be said that the one redeeming feature about this entire sordid affair is that those virtues are still recognized. One inexperienced in the phenomena of which the human soul is capable, reading the reports of the Einsatzgruppen, could well despair of the human race. Here are crimes that defy language in the depths and vastness of their brutality. Here pitilessness reaches its nadir and nothing in Dante's imagined Inferno can equal the horror of what we have discovered happened in 1941, 1942, and 1943 in White Ruthenic, the Ukraine, Lithuania, Esthonia, Latvia and the Crimea. which defied every concept of morality and conscience. One looked in on scenes of murder on so unparalleled a scale that one recoiled from the sight as if from a blast of scalding steam. of redemption. Some of the defendants called witnesses to testify to their good deeds, and practically all of them submitted numerous affidavits extolling their virtues. The pages of these testimonials fairly glitter with such phrases as "honest and truth-loving", "straight thinking and friendly manner", "industrious, assiduous and good-natured", "of a sensitive nature", "absolutely honest". fumes of the gas vans, through the unuttered last words of the one million slaughtered, the defendants have recalled the precepts gained at their mothers' knee.
Though they seemed not to see the frightful contrast between their events of the day and those precepts of the past, yet they do recognize that the latter are still desirable. Thus, the virtues have not vanished. So long as they are appreciated as the better rules of life, one can be confident of the future.
Nor are the affidavits merely subjective in praise. They point out objectively what the defendants did in attacking injustice and intolerance. In various parts of Europe (always with the exception of Russia) the Tribunal is told they occasionally interceded in behalf of oppressed populations and broke lances with the local Nazi despots. The affidavits state, for example, that Ott who enforced the FuehrerOrder from beginning to end in Russia, was all kindness and gentleness to the villagers in Gross-Bierderstroff in the Lorraine, and that Haensch, whose conduct in the East leaves much to be desired, was the epitome of charity in Denmark where the population in paeans of thanksgiving showered him "with adulatory messages and boquets of flowers. During the period that Naumann was stationed in Holland, one affiant states, Neumann befriended the Jews, got them out of concentration camps and released hostages. In face, according to one affidavit, Naumann was known as a man "with softness towards Jews." virtues which others saw in these defendants and their deeds as described by themselves? Was it the intimate companionship with evil? The poet Pope sought to describe this phenomenon in his quatrain:
"Vice is a monster of so frightful a mien, As to be hated needs but to be seen;We first endure, then pity, then embrace."