His answers to the questions put to him shed some light on the extent to which Biberstein can be believed in his wholesale denials:
"Q. Suppose that you learned that in the town was waging, what would you do?
A. I would have asked the man to come to me just would have warned him."
"Q. You are on your way home one evening from what would you do?
A. Nobody would have done this, I don't think.
Q. Well, let us suppose someone did. Peculiar A. I would have told him, 'Don't talk about it.
Keep it to yourself, keep it quiet'."
"Q. Well, let's go a little further. This 'By the way, I just found out that there is a plot on here to kill Hitler.
I heard the men talking about this; I know the house in which they gather; I saw Biberstein.
' What would you do?
A. I would have told him, 'Go to Official So-andSo and report it to him'.Q. And you would have done nothing?
A. Why what could I have done? I didn't.
know what to do. I had no police directives." that a pastor has the task "to help souls but never to judge". Biberstein was no longer a pastor, professionally, spiritually or intellectually. He had already denounced his church and his religion and when asked why he did not offer religious comfort to those who were about to be killed under his orders and in his presence, he said that he could not cast "pearls before swine". incriminating answer, truth in an unguarded moment emerged and Biberstein confessed to murder from the witness stand.
He steadfastly had maintained that every exeuction had been preceded by an investigation. As chief of the kommando which conducted the executions, his was the responsibility to be certain that these investigations revealed guilt. However if conceivably he could -- although in law and in fact he could not but even if arguendo he could be excused from responsibility for the death of those who were executed outside his presence, he could not escape responsibility for the death of those killed before his eyes.
With regard to the two executions which he witnessed (one by gas van and the other by shooting), he testified that the first involved some 50 people and the second about 15. He was questioned as to whether investigations had been made to determine guilt or innocence of these 65 executees. He replied:
"I did not see the files of these 65 cases.
I only know that men of the to investigate the cases."
The interrogation continued:
"Q. You do not know of your own knowledge that those cases were investigated?
These 65 deaths?
A. I did not see it.
Q. No. So, therefore, you permitted 65 or not?
A. I said that I only made spot checks.
Q. Did you make any spot checks in these 65?
A. Not among these 65.
Q. Then we come back to the conclusion that death without even a spot check?
A. Without living made a spot check, yes." is guilty of murder in ordering the death of 65 persons and supervising their very executions without evidence of guilt. Sonderkommando 6, during the time that Biberstein was its chief accomplished mass murder. It finds further that as its chief, Biberstein was responsible for these murders. is guilty under Counts I and II of the Indictment. SS, SD, and Gestapo under the conditions defined by the Judgment of the International Military Tribunal and, therefore, is guilty under Count III of the Indictment.
Judge Dixon; The Defendant Werner Braune University of Jena in July 1932 and in 1933 was awarded the degree of Doctor of Juridical Science. He joined the SS in November 1934. In 1940 he became chief of the Gestapo in Wesermuende. In October 1941 he was assigned to Einsatzkomando 11b. As chief of this unit Braune knew of the Fuehrer-Order and exected it to the hilt. Hi defense is the general one of Superior Orders which avails Braune no more than it does anyone also who executes a criminal order with the zeal that Braune brought to the Fuehrer-Order. Various reports implicate Braune and his kommando in the sordid business of illegal killings. Simferopol. Braune was the kommando leader in charge of this operation. He has admitted responsibility for this murder in unequivocal language:
"It took place under my responsibility.
with Mr.Ohlendorf and there we con the assignment.
I personally was there company and, I think, another Captain."
Like a guillotine blade in its descent it did not stop to inquire into cause and premise. Nonetheless, the question was put to Braune as to why the Army, which apparently had immediately ordered this execution, was so anxious that the slaughter be accomplished before Christmas. Braune enlightened the Tribunal and simultaneously horrified humanity for all time as follows:
"The Fuehrer-Order was there, and now the Army said 'We want it finished be fore Christmas'. I wasn't able at the time to find out all the reasons.
May Army to issue that order.
Maybe they were territorial Questions.
Maybe they were questions of food.
The Army, at cause of the food situation.
..."
There were also executions after Christmas. Einsatz-Order, dated January 12, 1942, speaks of an operation destined -
"....to apprehend unreliable elements (partisans, saboteurs, possibly enemy Jews, leading Communists, etc.)
." Braune admitted that he took an active part in this operation. He was asked what happened to the Jews who fell into the dragnet which he had spread, and Braune replied:
"If there were any Jews, Mr. Prosecutor, they were shot, just as the other Jews."
the defendant replied:
"Mr. Proseuctor, I believe that it has Jews."
that document carried this significant item:
"SS-Sturmbannfuehrer Dr. Braune gave the carrying out of the shooting."
he does admit that he marched with the condemned men to the place of execution.
was convinced that "the whole lot of them had engaged in illegal activities", but he admitted that there was the possibility, theoretically, as he described, that among these 1,184 executees "There were some people who had not participated participated in sniping activities."
defendant is guilty under Counts I and II of the Indictment. criminal organizations SS, SD and Gestapo under the conditions defined by the Judgment of the International Military Tribunal and is, therefore, guilty under Count III of the Indictment.
THE PRESIDENT: The Defendant University, trained as Referendar in various cities and passed his final State Law Examination in December 1934. He took a position with the town administration of Doebeln in February 1935 and in the Fall of that year entered the SD. In the early part of 1942 Haensch was assigned to Sonderkommando 4b as its leader. It is the contention of the Prosecution that his authority over this unit began on January 16, 1942. The defendant asserts on the contrary that although it is true he was ordered to this post in January, he did not arrive at the site of the kommando until March 15, 1942. service, the defendant presented evidence to show that he was in Berlin on February 7, 1942, for some dental work, that, on February 20, 1942, he opened up a bank account, on February 21, 1942, he posed for some pictures and on another date attended a birthday party, all in Berlin.
Court No. II, Case No. IX.
entation of evidence both for and against the alibi contended for by the defendant. The question of alibi, however, remains moot, in view of the fact that even if the Tribunal assumed that the defendant did not arrive in Russia until March 15, 1942, the date asserted by him as the beginning of his active service with the Sonderkommando, this assumption would not exculpate him. The record proves beyond a reasonable doubt that Sonderkommando 4b, under the leadership of the defendant Haensch, was active in War Crimes and Crimes against Humanity, even subsequent to March 15, 1942. and killed one-half of them. The identification of Haensch's unit in this mass execution is established by the following:
(1) Report No. 188, dated April 1, 1942 shows that Sonderkommando 4b had an active unit operating in Zhitomir.
(2) Report No. 189, dated April 3, 1942 states:
"Locations and communications as re 1 April 1942, remain unchanged."
so that it was bound to be the unit responsible for the incident described in the report as follows:
"Zhitomir -- 50 hostages from Gayssen were shot."
(3) Report No. 190, dated April 8, 1942 confirms the responsibility of Sonderkommando 4b for the events of April 3 by declaring that units of Sonderkommando 4b were still stationed at Zhitomir.
Report No. 189 above indicated, carries also another item under "Einsatzgruppe C":
"From 28 March up to and inclusive 31 March a total of 434 persons were subjected to 'special measures' (executed). The figures breaks down as follows:
253 Jews and 1 insane." 4b was responsible for the 434 executions, but for the purpose of demonstrating that Einsatzgruppe C (and, therefore, its integral units, including Sonderkommand 4b) was at the time actively engaged in the carrying out of the extermination program. 15. Report No. 6, dated Juno 5, 1942 shows that Sonderkommando 4b, under the leadership of Maonsch, was located at Gorlovka. The same report carries this item:
"Several large-scale actions against partisansa and Communists were carried out in the district of the Gorlovka in late April -- early May 1942. 727 out of1,038 persons arrested were given special treatment Among them there were 461 partisans, mentors of destruction battalions, saboteurs, looters and some Communist activists and NKVD agents."
The conclusion is inescapable that Hanesch's organization is responsible for the various executions mentioned herein. himself from Gorlovka at the time of the executions, but his evidence in this respect was vacillating and entirely inconclusive. He admitted that officials under his command participated in the action. Whether he personally was present in the actual physical arresting and shooting of the victims is of no consequence legally. A high ranking officer who plans an operation or participates in the planning and has control over officers taking part in the movement certainly cannot escape responsibility for the action by absenting himself the day of execution of the plan. Haensch was not only responsible for the sonderkommando during the operation, but he admits having been informed on the results thereof.
It is urged by Defense Counsel in behalf of Haensch that:
"In addition, nothing happened during the course of these operations which could be regarded as a crime. The containing of partisans, members of the ing to International Law.
I believe I further.
The report also shows that by the so-called 'special treatment'.vestigated."
partisans and Communists. Membership in any political party is not a capital offense according to the Rules of War and International Law. And executions for membership in a general political party can only be murder. It is asserted that all the cases were investigated. The report says nothing about investigations and, in any event, there is no evidence in the record that the investigations, if held, conformed to the accepted trial requirements, recognized by the Rules of War and International Law insofar as they appertain to civilians. Whatever defense exists to the charges contained in this item depends on the defendant's word. Can he be believed? never heard of the execution of Jews as Jews. Only three or four weeks prior to his alleged assumption of command over Sonderkommando 4b, the kommando killed, 1,224 Jews. He professed to know nothing about this massacre. He was asked:
"You have now stated that you have no reports.
Therefore, if 1,224 Jews were Jews?"
His only reply was that no one talked about these killings or any killings at all, and that he did not learn that Jews were executed for racial reasons until he arrived in Nuremberg five years later!
4b he was told by Mueller, Chief of the Gestapo and Thomas, Chief of Einsatzgruppe C, that the executive activities of Sonderkommando 4b were to remain unchanged. He was asked whether he carried out these directives of Mueller and Thomas and he replied in the affirmative.
Report No. 24, dated July 16, 1941, discloses the killing of 180 Jews and the burning of Jewish homes by Sonderkommando 4b. Report No. 88, dated September 19, 1941, spoke of the execution of 435 Jews as well as 28 saboteurs and 55 officials and agents of the NKWD. Report No. 94, d dated September 25, 1941, contained an item on the execution of 290 Jews. Report No. 111, dated October 12, 1941, declared that 125 Jews had been liquidated. Report No. 132, dated November 12, 1941, reported 161 Jews killed. Report No. 135, dated November 19, 1941, repotted 562 Jews liquidated. Report No. 143, dated December 8, 1941, described the killing of not only 137 Jews, but also 592 "mentally deficients". Report No. 173, dated February 25, 1942, revealed the killing of 649 political officials and 139 Jews. Report No. 177, dated March 6, 1942, chronicled the execution of 1,224 Jews. policy of Sonderkommando 4b as it existed prior to his arrival in Russia, and the above enumeration indicates quite clearly what that policy was, this can only mean that he continued with the execution of the FuehrerOrder. The Tribunal rejects completely the defendant's statement that he did not know of the execution of Jews. In the face of what appears in the record the Tribunal also refuses to accept as fact the statement of the defendant that he was only personally aware of four executions involving in all sixty deaths. einsatz service. Over eight pages (which is over one-third of the entire statement) were devoted to a discussion on executions and his, the defendant's manner of conducting then. On page 22 he said:
"I was requested to make statements con To this I must state the following:
In to give such information.
An estimated number would lack any basis of fact.
For I cannot give such an estimate."
of executions performed by the kommando during the time he was its chief is practically conclusive, if words have any meaning, that the number was a very large one. There is additional reason for this conclusion, in suite of his mentioning specifically three or four executions. His long eight-page description of executions is written in a manner and style which reveals irrefutably that mass killings former a regular routine to him and were not unusual events. A few sentences taken from this volunteered statement are quite illuminating on this point:
"The executions were effected by shooting than 8-10 paces.
The seeumption that the shootings were effected 'by revolver' does not correspond with the facts.
I have already the 14/7/47.
"I must once again energetically repudiate the out in a mean manner, e.g., in the form in the neck or in an otherwise lowdown manner."
"After quiet reflection I am bound to state "Moral sufferings for the victims as well as be avoided as far as possible.
Thus great care execution took place."
"I myself watched a few executions. Where sudden appearance.
During this I saw derations enumerated were "being dis regarded."
"Occasionally officers or authorized appropriate offices."
"I still remember that the absolutely for instantaneous death."
"I recall that the executions were prepared on the other side."
"As far as I remember in the executions intervals and shot together."
"In those executions which I attended, death was instantaneous.
Immediately they were really dead.
I do not recall either ever having heard a cry of pain."
"As to the composition of the execution circumstances so-called 'shooting kom mandos' were formed, that is to say, the day before the execution."
expert with long experience, belies the defendant's assertion on the witness stand teat his kommando conducted only four executions with aamaximum of sixty deaths. given the benefit of a hearing, but no evidence was adduced to indicate the character of the charges brought against the arrestees except the general statement that they were partisans, saboteurs, looters or Communist activists.
Nor was there any evidence that these persons recieved a trial. Furthermore, the large number of victims and the haste with which they were executed would demonstrate, considering the time element, the impossibility of trials for all of them. As a matter of fact the defendant testified that Streckenbach pointed out to him that in the East there would be no "formal court proceedings such as we were accustomed to carrying out in the Homeland, in the Police Courts, or another court." And on the contrary, he was instructed that the procedure was to follow the decree of the highest political authorities and it is a matter of record that all einsatz units had received the Fuehrer decree. The Fuehrer-Order, of course, provided for no trial whatsoever. The Tribunal is convinced that the civilians shot by Sonderkommando 4b under Haensch's leadership did not receive the trial intended by the Rules of War and International Law. The credible evidence shows, further that if there were any proceedings they were entirely of an ephemeral nature. the cases of the sixty persons executed by his kommando:
"Yes, I knew exactly about the individual district.
I also knew about the other security of the people."
decisions, but when he was asked:
"Would you have been able to reverse vidual was not justified?"
he replied:
"Yes, without any trouble. If I had been able to do that."
were killed under his orders:
"Q. There were sixty people killed under your orders?
A. Yes." he pronounced the death sentence.
"Q. Now, how many of these sixty cases did the evidence on?
A. The evidence? I only looked through Q. All right.
A. (Continuing) came thereafter.
Q. That is thirty-two that you investigated yourself?
A. Yes.
Q. So that means that twenty-eight went to your having reviewed the evidence?
A. No.
Q. Sixty were killed under your orders?
A. Yes.
Q. Thirty-two you investigated?
A. Yes." went on to say that no investigated the sixty cases. The defendant's manner of testifying, his shifting and evasive attitude while discussing this subject, convince the Tribunal that he did not tell the entire truth about the sixty alleged investigations. The defendant stated that some of the killings had been ordered by the Army, but that he reviewed those cases also. It developed, however, that no written report was made so that it is not clear, if he had no personal knowledge of the facts and received no written report, how he could review the cases. His explanation, which is obviously no explanation, follows:
"....these cases of executions which I was to me for information.
Today, I cannot state exactly, committed by the defendants.
I Considered kommandos."
Much of the defendant's testimony, even if believable, does not exculpate him. Much is simply not worthy of belief. For instance, when he says that Streckenbach, who was the man responsible for the announcement of the Fuehrer-Order in Pretzsch, said nothing to him about this momentous program as he was about to depart for the East, Haensch utters an obvious falsehood. when he says that in his conversation with Heydrich, Heydrich was silent about the Fuehrer-Order, he declares what is incredible. And even, more incredible is his statement that the very Chief of the Einsatzgruppe, under whom he was to operate, remained mute on the subject of the Order of the head of the State, the very Order which brought the Einsatzgruppen into being. And then one can only dismiss as fantastic the declaration of the defendant that his predecessor who had admittedly executed thousands of Jews under the Fuehrer-Order, and whose program Haensch was to continue, said nothing to Haensch about that program. And when Haensch boldly uttered that the first time he ever had any inkling of the Fuehrer-Order was when he arrived in Nuremberg six years later, he entered into a category of incredulousness which defies characterization. Crimes against Humanity has been clearly and conclusively established. From all the evidence in the case the Tribunal finds the defendant guilty under Counts I and II of the Indictment. criminal organizations SS and SD under the conditions defined by the Judgment of the International Military Tribunal and is, therefore, guilty under Count III of the Indictment.
JUDGE SPAIGHT: (reading) passed his examinations as assessor in 1934 and entered the Administration of Justice at Halle. In June 1935 he became employed in the National Ministry of the Interior at Aachen and then transferred to the Gestapo. From June 19, 1941, until March 1942, he served as commander of Einsatzkommando 12. put it into effect because it was his good fortune never to have been in a position where he had to execute the order. When he was asked if he had been called upon to shoot 500 Jews under the Fuehrer-Order whether he would have done as, he replied:
"If I had been in a situation where the then probably I would have done it."
he would take the matter up with his conscience:
"Q. .....you are before 500 innocent people, men, be your conclusion?
A. I would have taken it upon my conscience.
Q. And you would have killed them?
A. I would have probably done it."
Report No. 61, referring to Einsatzkommando 12, says:
"......Only in Babtschinzy resistance a few months ago.
By spying on the to Siberia.
As a counter-measure, 94 Jews were executed."
was carried out by one of his detachments, but declared that the execution was legal because the executees had sabotaged farm machinery and crops. The defendant's explanation is in flat contradiction to the report which specifically states that the 94 Jews were killed as a counter-measure. The phrase "counter-measure" carries no implication of guilt on the part of the victims and killing such victims can only be a crime. it had taken place, but admits that it was done by members of his kommando. He admitted further the possibility that the Fuehrer-Order figured in the decision of the sub-kommando leader to perform the execution. He asserts that his sub-komnando leader conducted investigations before shooting the Jews, but he made no independent inquiries to determine whether the executions were warranted. Taking him at his word, his acceptance without inquiry of the killing of 94 persons was a demonstration of criminal and wanton indifference which might well have induced his men to further illegal and unjustified executions. but admitted that there were shootings under his authority even though he did not know the number.
"Then comes the period of time from the on my responsibility during that time."
severe weather prevented any activities on the part of his kommando. It is a fact that Report No. 178 said:
"Kommando 12 had to limit its activities unpassable streets."
But it also said:
"From the 16 to 28 February 1942, 1,515 Jews.
271 Communists, 74 partisans, 421 Gypsies, as asocials and saboteurs."
While all these killings are not to be charged to Sonderkommando 12, it does refute the statement that Sonderkommando 12 was entirely immobilized during the period in question. Nor was it immobilized, according to Report No. 165, which, covering events in January 1942, said:
"Besides, 2 further Teilkommandos were of combing out the northern Crimea."
Then there was the episode of the Roumanian Jews. The prosecution contended that the defendant was involved in a forced migration of Jews from German-controlled territory into Roumania, and that in the operation some of the Jews were shot. The defendant admitted that he had led some 6,000 to 7,000 Jews across the Dnjestr River, but denied that in this movement any of the Jews were shot. In fact he endeavored to convey the impression that in this particular affair a great favor had been done the Jews in repatriating them. A witness, Harsch, called to testify on the subject stated that he witnessed the arrival of the Jews on the Roumanian side of the river, and that once they had gained that point they evinced their gratitude to the German escort by crying "Heil Hitler". Although this contingent of Jews escaped the German firing squad by leaving German territory, it is not so certain what fate awaited them in Roumania. The defendant Nosske, in this regard, testified, as stated before in the General Opinion:
"I assume that the Roumanians wanted to trouble of shooting them.
We didn't want to do the work for the Roumanians."
The witness Harsch said that later he saw these same Jews within barbed wire enclosures on Roumanian territory.
shootings by his kommando:
"From 21 June until 15 September certainly, 23 (Of August), the shooting in Babtschinzy took place."
"This territory where the Kommando XII territory; certain shootings occurred but we didn't quite know.
Our own and other people's reports mentioned this.
it. Of course, shootings were carried which had been in other territories."
"In this connection many reports were as foreign executions."
total killings of the parent organizations, Einsatzgruppe D, but refused to name any figure or even an estimate of the number of persons his kommando had executed. He said that in his entire period of service in Russia he had only seen two people killed and then, after vividly narrating the details of an incident which resulted in numerous executions, he could not or would not state the number of people who had been killed. It is extraordinary that he should recall the alleged investigation of this incident but not recall what happened as a result of the investigation. executed by his kommando, he did finally say that he knew it had killed at least 244. Taking his testimony as a whole, the Tribunal is convinced that the kommando executed a number considerably larger than 244. Nor is it convinced that the Rules of War and International Law were observed in all these cases.
Report No. 95, dated September 15, 1941, speaks of various executions conducted by Einsatzgruppe D of which Sonderkommando 12 formed a part. In his summation, defense counsel says:
"Even if the report contains reports on of the Fuehrer-Order."
But the report itself says:
"From 19 August until 15 September, Total number:
13,315. The Jewish in Nikolajew and Cherson.
About 5.000 Jews were rounded up in each town."
killings enumerated here, it is obvious that the shooting of the Jews, since no qualifying phrase limits the reference to the Jews, was done on the basis of the Fuehrer-Order. the Roumanians shows a familiarity with the Fuehrer-Order which belies his general assertion that he was opposed to it. In that statement he practically asserted that he was against killing Jews for the Roumanians, but that there was no objection to the same kind of a performance if it took place in the territory of his own organization. to Germany, the Higher SS and Police Leader in the Duesseldorf area instructed him to round up all Jews and half-Jews in that area and shoot them. The defendant stated that he protested this order and that, eventually, it was revoked or at any rate not enforced. Nosske's protest against this order was undoubtedly due mostly to the fact that many of the intended victims, because of the conjugal relationship of the halfJews, were considered Germans. Nonetheless, his action in refusing categorically to obey the order, demonstrated, contrary to the argument advanced throughout the trial in behalf of the various defendants, that a member of the German Armed Forces could protest a superior order and not be shot in consequence. Though it is true the defendant suffered some inconveniences because of his unwillingness to shoot the people of Duesseldorf, he was not shot or even degraded.