After he had become a candidate for executive rank in the autumn of 1940 and studied law, he was assigned to field duty in the summer of 1941 on the basis of his qualifications. He was assigned without any action on his part to Sonderkommando 4 b which had then been newly formed in Einsatzgruppe C. At that time FENDLER only knew that his Sonderkommando was to be an advance Kommando of the Einsatzkommandos of Gruppe C. He was not informed of the detailed orders which the officer in charge of the Kommando had received. Above all, he had no knowledge of the fact that Einsatzgruppen and Einsatzkommandos which had executive powers would have to perform deeds which would violate the laws of warfare and would include inhuman acts. He was even less aware that they were to take part in the so-called "final solution of the Jewish question". As early as 1938/9 FENDLER was engaged, with so-called Einsatzgruppen, in the occupation of the Sudetengau and Czechoslovakia and took part in the establishment there of offices of the SD. He could therefore only assume that on the Eastern front the Einsatzgruppen would have the same duties, as the only expert in intelligence service he was appointed expert adviser of Section III i.e. intelligence expert, in Sonderkommando 4 b. The intelligence section (Section III) within Kommando 4 b had no material connection whatsoever with the executive (Section IV). FENDLER's duty as SD-expert was to secure all intelligence material found in the occupied area and to screen it for relevant information. He also had to make reports on the economic, cultural and political conditions and on the morale of the population. He never at any time worked on the executive side either in accordance with orders or voluntarily. June 1941 until the 2 October 1941 on the Eastern front, therefore some of the documents presented in the case against him which refer to a later date, cannot incriminate him.
Court No. II-A, Case No. 9.
connected with intelligence and information, and as the defendant FENDLER in all the time he was in the SD until the end of the war never performed Counter-intelligence duties for the Executive (Gestapo), he knew nothing of the criminal character of the SD as determined by the IMT verdict. Furthermore, under them existing regulations, FENDLER was not able to leave the SD during the war. It can therefore not be said that FENDLER voluntarily remained in the SD during the war. Nor did he belong during the war to that group of persons in the SS declared to be criminal by the IMT verdict. and witnesses.
THE PRESIDENT: Counsel for defendant von Radetzky?
DR. RATZ (for the defendant von Radetzky): May it please the Tribunal: cases they may not show that the defendants gave explicit orders for the crimes committed by their Kommandos or that they directly participated in the same; however, the prosecution maintains their guilt to be just as great. of the defendant v. Radetzky, who was into the proceedings only subsequently included and of whom the Prosecution will not be able to prove that he gave orders for the crimes perpetrated by his Kommando, nor that he participated in them directly. However, I am not only convinced that the defendant's guilt is not equally great, but that the defendant's criminal guilt does not exist at all, as shall be proven by full evidence in the course of those proceedings.
I trust that already the first sketch of the case v. Radetzky, which I want to outline now to the Tribunal, will make the defendant's nonguilt already sufficiently clear.
When in 1939 Hitler's insane policy bore its first evil fruit, the defendant v. Radetzky was one of the first unfortunate ones who had to taste that fruit. On 15 October 1939 a treaty was concluded between Germany and Latvia, according to which the Baltic Germans Were to be uprooted from their native land and to be resettle in the Reich. From his hometown Riga, where he worked as Prokurist of an export firm, Radetzky came to Posen, together with numerous compatriots and fellowsufferers; there he was active at the advice Bureau for Baltic German immigrants and helped to ease the lot of many a resettler who felt already disappointed in some respects. Already in 1939 he received a second blow. On the occasion of a visit to Posen, Himmler at that time expressed his great displeasure at the independent existence of a representation of the Baltics in the form of their Immigrants Advie Bureau and ordered the transfer of that bureau to the Bureau for the resettlement of ethnic Germans, on SS outfit.
The staff of the immigrants' bureau, for their part, accordingly were incorporated into the SS; obviously this transfer was not effected for political or ideological reasons, it was not even voluntary; it was a purely organizational measure, due to Himmler's mania for unification. Yet another mania played a part in this, the uniform; it was thought that the staff of the Immigrants' Advice Bureau would gain in prestige and it would raise their morale all round, if they were dressed up in SS uniforms. The truth of those facts is proven by the following: Contrary to all tradition and regulations, these men did not have to produce proof of their Aryan descent; the very day Radetzky was received into the SS, he was promoted to SSUntersturmfuehrer, equivalent to the rank of a Lieutenant, without any examination as to his personal and professional qualifications. Radetzky subsequently were the SS-uniform, sometimes with and sometimes without the insignia of his rank, as the occasion demanded. Thus Radetzky belonged to that special category of "wearers of the SS-uniform", that could justly be termed the Quasi-SS. the preparations for the campaign against Russia in 1941, Radetzky had not been called upon - he who not only hailed from the East and had command of the Russian and other Slav languages, but also was an expert on conditions in Russia. Pursuant to the Decree No. 3 for the securing of labor for tasks of special political importance dated 15 October 1938, he was conscripted in May 1941 for service with the Reich Main Security Office. interest; hereby, the following points were essential, in general, and also concerned Radetzky: 1) this was a compulsory conscription, taking place without, and mostly against, the will of the- person concerned, 2) no employment contract was concluded between the person concerned and the now employer, but his previous employment was maintained; this follows, on the one hand, from the legal provisions which are explicit, but furthermore from the fact that the person in question, in our case the defendant v. Radetzky, did not get any salary at all from his new employer, the Reich Main Security Office, but merely a small "indemnity for personal expenses", 3) apart from the lack of voluntariness, a particularly typical feature of the liability for emergency service consisted in the usual transfer of the person liable for emergency service into a professional atmosphere which was quite unknown to him, so it was something quite common if, for instance, a manufacturer of picture frames or the professor at a girls' school became liable for emergency service as a police sergeant.
So the export merchant from Riga and former Latvian citizen v Radetzky came to the Reich Main Security Office, without having contributed to this fact by his free will even a single time in the chain of the facts that had caused this effect.
v. Radetzky came first to the border police school Pretzsch and, already after some weeks, in July 1941, to the Sonderkommando 4a set up at Schmiedeberg. v. Radetzky was not a specialist in the field of the Security Police or the Secret State Police; he had, in this respect, as little notion as any other ordinary citizen, he had even less any notion because lie had been a foreigner up to 1939; but v. Radetzky knew Russian and other Slavic languages, besides, and particularly, he was well informed about the Russian country and people; in addition, by virtue of his intelligent and distinguished objective manner, he was particularly gifted for initiating and cultivating relations, for observing correctly, investigating and penetrating human beings, circumstances and events. v. Radetzky became, therefore, with the Sk 4a, he went on with this task.
What is, then, meant by SD affairs? was: to safeguard the back of the fighting army, consequently to secure the rear area by police supervision, but, in addition, to improvise the war occupation of the areas from the standpoint of police and administra tion, until the occupying power could organize a proper administration.
The fact that the Einsatzgruppen and their individual units had actually this task, follows without difficulty, from careful reading of those parts of the so-called reports of events that were omitted by the Prosecution in their document books. Accordingly, it was part of the tasks of the Einsatzgruppen, 1) to study the economic, social and political conditions of the country and to elucidate the structure of the state and the party machinery of the enemy from the archives and the files of the enemy; 2) to observe the state of mind and the attitude of the population and their readiness for collaboration with the occupying power, furthermore, to investigate the enemy propaganda activities and the activities of the resistance groups and partisans and to report about these points to the central authorities of the State; 3) to ward off and to fight partisans who were in well-organized units or acted individually. all these points of view and tasks in a clumsy way as an occupying power. The section concerning observation and report according to what I just said, was "SD matter", and the field of the defendant v. Radetzky's activities was here. With Einsatzkommando 4a he followed the combat troops, the 6th Army, in their advance into Russia, but not as a commander or participant in the so-called executions, but as an expert SD-affairs. His special task was the safeguarding of important documents and flies of administrative authorities and institutes, the compiling of reports concerning agriculture and industry, the food situation and the existing conditions in the self-administration of the communities. It would be absurd if one wanted to maintain that such an exceptional person as v. Radetzky, a man whose mother tongue was German and who at the same time was fully conversant with the Russian language and conditions, would not have been employed for these purposes, or that the German Army leadership would not have been interested in the economic conditions, the food conditions, and the conditions concerning administra tion in the occupied territories.
pert qualifications of the defendant v. Radetzky. After he had proved him worth also in practical administrative work, such as organizing of the food distribution for the population, he was detailed as early as July 1941 to the AOK 6 as liaison officer, namely as liaison officer for the Sk 4a to the Army and liaison officer of the Einsatzgruppe C to the Army Group. the defendant pursued. The Tribunal will surely be astonished to learn, among other things, that it was v. Radetzky, against whom such severe indictments are brought, who was mainly responsible for averting a famine from the town of Charkow which was only 12 kms behind the front lines. Furthermore, I hope it will be proven to the full satisfaction of the Tribunal that the defendant v. Radetzky never participated in the dreadful executions, and that he also never was deputy to the commander of the Kommande. The latter may already seem evident now.
Court No. II-A, Case No. IX.
if one considers that v. Radetzky never got any significant training and education as an officer of the police or even as an ordinary policeman; therefore, he was definitely not qualified in this respect.
The further employment of the Defendant v. Radetzky is along a straight line too, and as a fact it proves more than all the statements made by witnesses and in documents, what he was found to be qualified for, for what was suitable and for what he could not be used. Since the summer of 1942 he was a liaison officer to the 2nd German Army and to the 2nd Hungarian army. In 1943 he was a liaison officer to the 8th Hungarian army corps and to the 2nd German army. On account of his knowledge of languages and his vast and profound knowledge of the whole conditions in the Russian territory v. Radetzky was transferred to Amt VI of the Reich Main Security Office by the end of 1943; up to that time, as has to be stressed expressly, he had not belonged to Amt VI of the Reich Main Security Office out to Amt I. As will have to be proven, the defendant had tried already numerous times to get a release from the straight-jacket of his national emergency service and to be transferred to the combat troops of the Army. He did not succeed, though he succeeded in repeatedly getting long leaves, and he furthermore succeeded in being less esteened as an expert; ultimately he was released from the immediate service in the Reich Main Security Office and he was being employed for further tasks of an informative nature. Then he once again became a liaison officer, namely with the Russian volunteer army of General Wlassow, which was no longer to taken seriously. There he prevented further follies and he caused General Turkul to surrender with his staff to the approaching American troops.
legal way, was driven out of his Baltic country. Then, without his will, he passively drifted into the claws of National Socialism. His characterization will be completed by describing how he fought for the rescue of his companions who were endangered by the racial and other basic principles of Nazi idealogy, opposing these very principles and thus endangering his own safety, and how he consequently gained grateful friends. once more to the "theory of individual responsibility," which the prosecution developed in the Opening Statement: the activities of a Sonderkommando is sufficient a reason for the establishment of the criminal responsibility of a defendant, because each defendant had the authority to order executions or to prevent executions. But Defendant Radetzky never possessed such an authority. This could only be assumed if the defendant would have been the commander or deputy commander of Sonderkommando 4a at one time or another, which actually never was the case. It is common knowledge that in military affairs there is no such thing as an authority over one's superiors, but only an authority over subordinates. Of course, there is a limited possibility to offer resistance to orders from military superiors or to cause them to change or withdraw their orders, Everybody familiar with military affairs knows well that such possibility decreases rapidly in direct proportion to the grade in the military hierarchy on which such a controversy may occur. Whereas, for example, a general may well be at variance with orders from his superiors and may express his counter-proposals in a courteous and diplomatic manner and, if necessary, even plead illness in order to evade the execution of an unsavory order, this was completely Impossible for a man of Defendant Radetzky's military rank.
For him contradiction or opposition would have meant a certain danger to life and limb. Such considerations are, however, totally unnecessary in connection with Defendant v. Radetzky and there is no need to plead, perhaps, that the defendant incurred no criminal guilt because he could not be espected to oppose criminal orders given him. For Defendant v. Radetzky never received or carried out an order for execution nor did he ever assist in any way in the carrying out of such an order. This leaves a mere knowledge. I believe I am in a position to state that it is already an established principle of the American Military Tribunal that criminal responsibility cannot be based on a mere knowledge of crimes.
Accordingly, trusting the Tribunal's justice, I hope to invalidate the charge brought against the Defendant v. Radetzky.
THE PRESIDENT: Counsel for the defendant Graf. You may proceed,
DR. BELZER: (Attorney for the Defendant Graf) May it please the Tribunal, the outside appearance of this case is marked by lack of space. The dock is terribly crowded and the seats of the counsels for the defense have grown, so to speak, into the tables of the judges. To whatever estent I feel personally honored to be seated at the table of the judges, so to speak, I must all the same say that at least this one place could have been saved if the prosecution had chosen the men whom it wanted to bring before the Tribunal in connection with the Einsatzgruppen from the same point of view which it maintained in the indictment and the opening statement. The inclusion of the Defendant Matthias Graf into the indictment of case 9 is a serious mistake of the prosecution.
Mentioned in the indictment at lest defendant is:
"Matthias Graf - (2nd Lt) in the SS, member Einsatzgruppe C." defendants, as officers or staff members of one or more Einsatzgruppen or subordinate units, had committed the crimes specified in the indictment.
this statement on page 1 by saying that the defendants had been commanders and officers of special groups known as Einsatzgruppen, that each of the defendants in the dock had held a position of responsibility or command in an extermination unit and each of them had assumed the right to decide the fate of men. Examining the individual responsibility of the defendants the proseuction states in the opening statement (p. 35 and 36 of the German translation) in addition: "Each of the defendants held a position of responsibility or command in an extermination unit. By virtue of his post he had the power to order executions." And further I quote: "As military commanders these men were bound by laws well known to all who wear the soldier's uniform, laws which impose on him who takes command the duty to prevent within his power, crimes by those in his control." Finally, the prosecution in its opening statement (p. 36 of the German translation) promised; "We shall show in this case that the rank and position of these defendants carried with it the power and duty to control their subordinates. This power, coupled with the knowledge of intended crime and the subsequent commission of crime during their time of command imposes clear criminal responsibility." about evidence; concerning the Defendant Matthias Graf, it has not proved anything at all as to participation, In any form whatsoever, in the crimes specified in the indictment.
It could not do so and can never do so. assigned to the Einsatzkommando C-6 from the end of May 1941 to about the middle of October 1942. During all the time of his membership in this Kommando the defendant had not the rank of an officer. At the beginning of the war with the war with the Soviet Union the defendant Graf had the lowest rank among all members of the Kommando. It can therefore not be said that Graf had held any authority of command or even only a position of responsibility in the Einsatzkommando C-6. Nor had the defendant Graf to do any police work with the Einsatzkommando C-6, nor had he in the least to do with the executions carried out by the Kommando. Graf was specialist III of the Department SD: His task consisted in reporting from all fields in the life of the population. These reports concerned:
ethnic questions and people's health, all diseases, whole of the time of his membership in the Kommando the work of the defendant Graf was within this framework. The fact, that the defendant Graf had no officer's rank in the Einsatzkommando C-6, results from the document submitted by the prosecution, NO-4801, Exhibit No. 147, in Doc. Book IIIC. This is the personnel file of the defendant. On page 1 of this document it is entered that Matthias Graf was appointed 2nd Lt on 20 April 44.
Consequently the defendant became an officer only after being away, again, from Einsatzkommando C-6 for nearly 2 years. that the defendant Graf was actually not a member of Einsatzkommando C-6 as officer, and was never a staff member of the Kommando or of Einsatzgruppe C, that, at no time, he had or exercised authority of command, at no time, did any police work and had nothing to do with any execution. The defendant Matthias Graf can never be connected with the crimes described in the indictment.
dants had been members of the SS and, in addition, the defendant Graf is enumerated among the members of the SD. Hereby Graf is charged with membership in organizations declared criminal by the judgment of the IMT. On the part of the defense it is objected in this respect that the defendant Matthias Graf withdrew from the SS in 1930. This fact results from the personnel file of the defendant, prosecution exhibit 147 in Doc. Book IIIC. On page 6 of the Document (page 3 of the original) the following time is given as period of membership in the SS; 1 April 33 - 15 March '37, and as rank; SS Sturmann Graf did not rejoin the SS. starting point that the SD was a voluntary organization, end states as a fact that all members of the SD joined this organization in a voluntary way. In the conclusion the IMT declared "as criminal in the sense of the statute, the group of those members of the SD....who became or remained members of the organization, although they know, that this organization was made use of for carrying out acts declared criminal according to article 6 of the statute, and who, as members of the organization, took a personal part in the commitment of such crimes." The conviction of a defendant on account of membership in the group declared criminal - of members of the SD is consequently dependent on two preliminary conditions:
(1) Voluntary joining of the SD and hereby membership in the SS or voluntary maintaining of membership and (2) Taking a personal part in the commitment of crimes mentioned in the statute and in the Control Council Law No. 10.
prior to 1 September 1939. It will be proved that Fraf never joined the SD voluntarily, but in January 1940, became liable for emergency service for the war period as auxiliary war worker.
That he was, first, employed in the SD intelligence service at home, was detailed, temporarily, to Einsatzkommando C-6, against his will, and, finally, was retransferred to service at home. Evidence will be submitted that Graf refused repeated suggestions to be taken over by the SD, and repeatedly tried in vain to get away entirely from the SD. The fact that the Defendant Graf obtained an SS rank for the period of his employment with the SD, did not mean new membership in the SS. The request of the prosecution concerning conviction of the Defendant Graf on account of membership in a criminal organization cannot be complied with -- apart from other points - because of the lack of membership in the SD or SS. It was already previously mentioned that there is no proof at all for any criminal activity of the Defendant Graf. indictment is completely unfounded in all three counts.
Your Honor, I would like to put a question to the Tribunal. In the opening session on the 15 September it was stated that motions for the calling of witnesses to be interrogated are to be put in. I have complied with this request. I have made my motions. If I only count one day for each of the defendants, my turn will come at the earliest four weeks from now. Yesterday the Defense Center already brought the witness Franziska Reimers from Bonn to Nurnberg, but I can not see why this lady who has a job today at homo has to sit idling in Nurnberg for four weeks. I, therefore, ask the Tribunal to permit me to tell this Miss Reimers to return to Bonn, and to stand ready to come back to Nurnberg at my call.
THE PRESIDENT: I want to thank you, Dr. Belzer, for your immediately and enthusiastic compliance with the request of the Tribunal -
DR. BELZER: I have not the connection, Your Honor.
THE PRESIDENT: May be you don't have your earphones on correctly.
DR. BELZER: Thank you.
THE PRESIDENT: And I want to congratulate the Defense Center for the speed with which it operated, as it would seem they have go ahead of all of us. I see no reason why this witness should be compelled to wait the period of time which you have estimated, so you have the consent of the Tribunal to release her, and to see to it that she is back here in Nurnberg in time to be called as a witness when you are ready for her.
DR. BELZER: Yes, Your Honor, Thank you.
THE PRESIDENT: All the opening statements appear now to have been delivered, and I want to thank the Defense Counsel for their cooperation with the Tribunal in every respect, and we will now recess until tomorrow morning at 9:30 o'clock. Dr. Aschenauer will proceed with the presentation of the Ohlendorf defense. Do you have something to present?
DR. STUEBINGER: Dr. Stuebinger for the defendant Werner Braune. ment for the defendant Braune may be read. I have not as yet read this.
THE PRESIDENT: Oh, I am very sorry, yes.
DR. STUEBINGER: May it please the Tribunal: all the other defendants, on the following three counts:
1. Crimes against Humanity.
2. Commission of War Crimes.
3. Membership in a criminal organization. terial and emphasized it in its opening statement, demonstrating how the defendants, - including defendant Braune - are supposed to have committed acts making them guilty in the meaning of the Indictment. It has characterized the acts of the defendants as "the tragic fulfillment of a program of intolerance and arrogance". Over, and above that, it has stated that each of the defendants, in his position of responsibility or as commander in a so-called liquidation unit, usurped the right to determine the fate of human beings, and was imbued with the idea of death as the intended result of his power and contempt.
The acts for which the defendants have to answer were supposedly not dictated by military necessity, but by an extreme perversion of human ideas, the National Socialist doctrine of the master race. In refutation of this, I as Defense Counsel, should like to make the following statement : question put by the Presiding Judge as to whether or not he considered himself guilty of the grave charges brought against him, the defendant answered "Not guilty" and with this statement he thus expressed his own inner conviction. answer as an ejected incomprehensible denial and therefore to attach no significance to it; nothing could be further from the truth than to interpret the statement of the Defendant as an attempt at cowardly evasion of responsibility. pressed the fact that He feels absolutely innocent of the grave charges which have been brought against him and that those who were ultimately responsive were quite other persons who are not sitting in the prisoners' dock today. rations and trains of though are the basis for this feeling. It is inherent in defendant Braune's attitude that he in no way attempted to disown his acts or to white-wash them and that his statements are entirely trustworthy.
easier for me to carry out my task as defense counsel. I do not regard it as my task to attain a dubious result by legal tricks and distortions, but merely to serve the cause of law and justice before this high Tribunal. against humanity, in which he is alleged to have participated, as defined by the provisions of Control Council Law No. 10.
war crimes by the sane actions, crimes which were committed through violation of the laws and customs of war, including murder, maltreatment of prisoners of war and of the civilian population of countries and territories under the belligerent occupation of or otherwise controlled by Germany and wanton destruction and devastation not justified by military necessity.
1.) with having been a member of the Schutzstaffeln (SS)
2.) a member of Ant III of the RSHA. (SD)
3.) a member of Ant IV of the RSHA (Gestapo) i.e. of organizations, declared to be criminal by the International Military Tribunal and paragraph 1 d of Article II of Control Council Law No. 10. the actions constituting the subject of the indictment comply objectively with the above-mentioned facts with regard to Germany's fight against Bolshevism unless measures taken in individual cases seem justified as permissible retaliation according to existing customs of international and war law or were permissible as punishment for offenses against orders expressly and publicly issued by the occupying power. under orders in a frontline assignment and acted only within the scope of orders which He considered to be bindings The question of acting on orders is of special importance in this case, since the defendant was not holding an important key position, but was a subordinate receiving orders and received his assignment at a time when all orders had already been issued and had been in the processof execution for months.
Under these circumstances He had no possibility to disobey "the order, apart from the fact that he trusted the legality of the order given to him.
1.) These points of viewmade the Defendant speak his "not guilty".
2.) This trial receives its special characteristics through lacking consciousness of guilt and emergency resulting from orders. three counts of the indictment existent by claiming in figure 9, letters A-P of the indictment, -- without, however, completely specifying the actions with which the Defendant BRAUEN is charged (with exception of letter F) -- that the Defendant as leader of Einsatzkommando 11b of Einsatzgruppe D murdered a considerable number of human beings in his territory of assignment (Crimea) during the tine of November 1941 until March 1942. concept common and unchanged at all times to all civilized peoples, of killing a human being from joy of killing, avarice or other low motives, maliciously or cruelly or by morns constituting a common danger. that the defendant without any efforts of his own was ordered to an Einsatzgruppe in the East and that in his position he only acted within the scope of binding orders issued long before his arrival and that he could not act differently although the contents of those orders in no way corresponded with his own ideas concerning the treatment of members of other races or were even in accord with his own inner disposition and wishes. On the contrary the carrying out of the orders given to him was rather a heavy psychological burden for the Defendant and only the idea of duty and obedience, but also the knowledge that it would be impossible for him to evade this order, made it possible for him to stand this strain. It was not in his power to annul or to alter orders. was told what his tasks were, when all ordershad already been given a long time ago and when they had been executed since months.