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."
local bar apparently would seen, unwittingly, to have given an explanation. From the constant association with the case, he found himself arguing in his summation speech: "What did Schubert actually do which was criminal?" And then he outlined Schubert's actions:
"Schubert first goes to the gypsy quarter of Simferopol and sees them being loaded aboard and shipped off.
Then valuables handed over, and the shooting.
Finally he drives then returns to his office.
That is what he did." beings who happen to be Gypsies, there is no assertion anywhere that these Gypsies were guilty of anything but being Gypsies. He sees that the roads are blocked off, that the victims are loaded on trucks and taken to the scene of execution, that that their valuables are taken from them and then he watches the shooting. This is what Schubert did, and the question is asked: What is wrong about that?
There is no indication of any realization here that Schubert was taking an active part in mass murder. Counsel even goes further and says that when Schubert reported to Ohlendorf on what had happened, he stated that he saw "nothing unusual". intended as any criticism of professional conduct. It is the function of a lawyer to represent to the best of his ability his client's cause and it must now be apparent what difficulties confronted the attorneys in this case. None theless, with industry and skill, with patience and perseverance they made their presentations so that the Tribunal was not denied any fact or argument which could be submitted in behalf of the accused. Regardless of the results of the Judgment it cannot be said that the accused did not have the utmost and fullest defense. defendants spoke of religion. One related how Seibert often accompanied his mother to church. While he was in the Crimea, did he recall these visits to the house of God with his mother, and if he did, could he reconcile his activities there with the teachings of religion and of his mother? of religion on the part of any defendant is not an issue in this trial. The fact, however, that Seibert advanced his early Christian training as an item of defense is indication that he at least recognizes there is a dissimilarity between what he learned and what he later did. This affidavit is additionally interesting because it impliedly repudiates the condemnations of religion by men like Goebbels, Rosenberg, Himmler, and above all, Hitler himself, who designated the church as the only remaining unconquered ideological opponent of National Socialism, continually insulting it in speeches and pronunciamentos.
Bormann said:
"National Socialist and Christian the NSDAP must be eliminated.
More and more the people must be' separated from the churches and their organs, the pastors."
Socialism, it is interesting to note that at least ten of the defendants, according to their own statements, formally left the church of their childhood. in the year of 1941. In the early part of December the commander of the 11th Army, which was located in that area, notified the chief of Einsatzkommando 11b that the Army expected them to kill some several thousand Jews and Gypsies before Christmas. holiest days of the year, did not consternate the kommando leader, as one might expect, On the mystic chords of memory no echo sounded of the Christmas carols he had heard in childhood, nor did he recall the message of Peace on Earth and Good will Toward Men. The only impediment this kommando leader saw in the execution of the order was that he lacked enough men and equipment for so accelerated an assignment, but he would do his best. He called on the Army Quartermaster and obtained sufficient personnel, trucks, guns and ammunition to do the bloody deed, and it was done.
The Jews and Gypsies Christmas. Tribunal was told, not because of the slaughter, but because they now feared for their own lives. Death, which had been so commonplace a day or two before, presently revealed itself as vivid and frightening: It might overtake the executioners themselves. Life became sweet and precious. The kommando leader testified that the danger existed they might fall into the hands of the Russians. found themselves in the mood to celebrate their own Christmas party. Their chief, Otto Ohlendorf, made a speech on that occasion. The defendant Braun was questioned on this speech:
"Q. And did he talk on religious matters?
A. I cannot give any details of the words anymore.
I don't know whether he mentioned Christ, but I know Herr Ohlendorf's Q. What was his attitude as he delivered it in his speech?
What did he say that was of religious significance?
A. I really cannot give any details any more.
Q. Did anybody offer any prayers on Christmas Day of 1941?
A. Your Honor, I do not know......
Q. Were any prayers offered for the thousands of Jews that you had killed.
....?
A. Your Honor, I don't know whether anyone prayed for those thousands of Jews."
of Germany and her people? Did it harmonize with the theory of moral revulsion to the Fuehrer-Order, as proclaimed by the defendants?
How far did the defendants get away from religion? It is to be repeated here that it is entirely irrelevant to the issue before the Tribunal as to whether the defendants are religious or not. They can be atheists of the first degree and yet be as innocent as the driven snow of any crime. Religion is mentioned because several of the defendants introduced the subject and their references to religion are pertinent in the evaluation of the credibility of certain testimony. the Gospel, left the church in 1938. At that time he repudiated organized religion and claims to have founded a religion of his own. This religion, he stated, was based on the love of his fellow-men. Despite his definite abandonment of the church, he states he was regarded as a clergyman by his fellow-officers and emphasized this point as a reason why he could not have committed the murders with which he is charged. He did admit to attending various executions, since according to his testimony, he still worshipped at the invisible altar of his own religion, he was asked whether he attempted to offer comfort and solace to those who were about to die. His answer was that since the Bolshevist ideology advocated the movement of atheism, "one should not throw pearls before swine". Then came the following;
"Q. Did you think that because they were Bol that they did not have souls?
A. No.
Q. You did believe they had souls then, didn't you?
A. Of course.
worthwhile to try to save these souls?
A. I had to assume that those were atheists.
Q. Well, suppose he did become ironic that that harm anyone?
A. These things are too sacred to me that I would risk them in such situations."
He was further asked:
"Do you think that you demonstrated that 'Love of fellow-men' by letting these considering that you were a Pastor?
Did you demonstrate there a 'Love of fellow-men?
'." And his answer was:
"I didn't sin against the Commandments of Love."
core of his religion was "Love of his fellow-men" and then ordered the shooting of innocent people whom he regarded as swine? Was he trustworthy when he declared that he never heard of the Fuehrer-Order until he arrived in Nuremberg? Was he credible when he announced that during all the time he was in Russia he never learned that Jews were shot because they were Jews? the weak, aided the poor and comforted the lonely and oppressed, is man's own determination, but that a minister of the Gospel, via the road of Nazism, participated in mass executions is an observation that cannot go unnoticed, When the Swatiska replaced the cross and Mein Kampf dislodged the Bible, it was inevitable that the German people were headed for disaster.
When the Fuehrerprinzip took the place of the Golden Rule, Truth was crushed and the Lie ruled with an absolutism no monarch has ever known. Under the despotic regime of the Lie, prejudice supplanted justice, arrogance cancelled understanding, hatred superseded benevolence -and the columns of the Einsatzgruppen marched. And in one of the front ranks strode the ex-minister Ernst Biberstein.
defendants' dock. At each session in this Palace of Justice, he has entered the door and quietly moved to his place among the other defendants. For over two years he has been making his entrances and exists. He never takes the witness stand, he never speaks, but he dominates every piece of evidence, his shadow falls over every document. responsibility or their every reverse and misfortune. But were he to cast off the cloak of invisibility and appear as he was, the amimadversions of the other occupants of the defendants' box might not be so audible, because he knows them well, He was no sudden interloper in Germany's destiny. He did not appear in a flash and order his present companions into action. Had it happened that way, the story of physical and moral duress they recounted from the witness stand would not be so incongruous. But, of their own free will, they threw in their lot with that of the specter's, and in their own respective functions enthusiastically carried out the shadow's orders, who was then not a shadow but a fire-breathing reality. they explain they had no reason to doubt him. He had been so successful. But the very successes they cheered most were usually this man's greatest crimes. Each defendant has claimed that the propaganda of the day assured them that Germany was always fighting a defensive war, but these men were not outsiders, nor were they children. They were part of the government, they belonged to the regime. It is incredible that they should believe that Germany was being attacked by Denmark, Yugoslavia, Czechoslovakia, Greece, Belgium and even little Luxembourg. Indubitably they revelled in these successes. One of Defense Counsel declared that the defendants could well believe of Hitler that "here was a man whom no power could resist".
was a living man so ignominiously and stupidly obeyed by other men. Never did living beings, made in the image of man, so pusillanimously grovel at the feet of clay. But it is not true that no one could resist him. There were people who could resist him, or at least refused to be a party to his monstrous criminality. Some voluntarily left Germany rather than acknowledge him as their spiritual leader. Others opposed him and ended up in concentration camps. It is a mistake to say or assume that all the German people approved of Nazism and the crimes it fostered and committed. Had that been true, there would have been no need of Stormtroopers in the early days of the Party, and there would have been no need for concentration camps or the Gestapo, both of which institutions were inaugurated as soon as the Nazis gained control of the German state. violences of Nazism, there were those who could not resist the glory, pomp and circumstance of war, nor the greed of unbridled domination. They accepted Hitler with fervor and passion because they believed Hitler could lead them to a gratification of their bloated vanity and lust for power, position and luxurious living.
Nor have all forsaken their "successful" leader. Several of the defendants in this case have expressed their countinuing belief in the Fuehrer. One could not bring himself to blame Hitler for any of the illegal deaths under discussion. Another regarded him as a great leader, if not a great statesman. Still another, when asked if he would have been satisfied if Hitler had succeeded in his aims, replied with a categorical affirmative. The defendant Klingelhoefer stated that he would have been happy if Hitler had won the war, even at the expense of Germany in ruins, with two million Germans killed and the entirety of Europe devastated. One other defendant told of his adoration for Hitler which apparently had not changed since 1945. The expression of such adoration offers convincing testimony on the mental attitude of the defendant at the time he received and executed the Fuehrer-Order.
doubted, but his capabilities for harm would have been nil had he not had willing, enthusiastic collaborators like the defendants who accepted his mad out-pourings and hysterical maledictions against defenseless minorities, as if his pronouncements were the apostrophies of a semi-divinity. megalomaniac to achieve his ambition of putting the world beneath his heel or to bring it crashing in ruins about his head. Some of these defendants, in following Hitler, may have believed that, in executing his will, they were serving their country. Their sense of justice staggering from the intoxication of command, their normal reactions drugged by the opiate of their blind fealty, their human impulses twisted by the passion of their ambitions, they made themselves believe that they were advancing the cause of Germany, But Germany would have fared better without such patriotism, When Samuel Johnson uttered his cynical line that patriotism is the last refuge of a scoundrel, he could well have had in mind a Hitlerian patriotism. death had it not been for his fellow arsonists, big and little, who continued to supply the fuel until they, themselves, were scorched by the flame they had been so enthusiastically tending. If history has taught anything it has demonstrated with devastating finality that most of the evils of the world have been due to craven subservience by sub-chiefs upon a man who through boundless ambition unrestrained by conscience has formulated plans which, proposed by anyone else, would be rejected as mad. whatever benefits derive from centralized control are lost in the infinite damage which inevitably follows lack of responsibility. That unlimited authority and power are poisons which destroy judgment and reason is a demonstrable fact as conclusively established as any chemical formula tried and tested in a laboratory.