Court No. II, Case No. IX.
PRESIDENT: I would be very grateful to you, Mr. Walton, if you would endeavor to assist him in getting this transcript which he believes he would like to have in connection with the summation.
MR. WALTON: I think that this is the time for the citation for all our benefits.
PRESIDENT: But he doesn't have the citation.
MR. WALTON: Does he have the date?
PRESIDENT: Do you have the date?
DR. STUEBINGER: 16 December 1947, morning session, I believe.
MR. WALTON: No objections to the document that is introduced as a supplement to Document Book III.
PRESIDENT: Do you think we ought to have our recess first--Yes. Wall, let us make an announcement now. Dr. Aschenauer, I again must express our regrets that you haven't up until this time been afforded the opportunity to begin your summation and it would seem that you can't begin this afternoon and it might be better in that event to start freshly tomorrow morning. We will announce to all counsel who still have to submit documents this afternoon that the tribunal will remain in session regardless of the length of time until every document now ready can be presented today, so that without fail tomorrow we begin the summations. The Tribunal will now be in recess 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. DURCHHOLZ (ATTORNEY FOR THE DEFENDANT SCHULZ): Your Honor, I have just one more document which I would like to submit for the Defendant Schulz. I have marked it as Supplemental to Document Book No. IV. It is Document No. 97, which I herewith submit as Exhibit No. 96, the affidavit of the Defendant Schulz of the 27th of January, 1948. been submitted to the Tribunal because the Translation Department cannot cope at the moment with the work load. It has been there for a number of days. one which was Exhibit No. 201, in which the prosecution connects the Defendant Schulz with locations which had not previously been connected with him. That is the reason why this document is offered and submitted.
Then I want to make a short statement. A short while ago, I offered Document 96 as Exhibit No. 95. In this document are contained the photostats of three Russian envelopes. The prosecution, some time ago, complained that on this photostat it was not evident that on the envelope, which was entitled, "Glory to the Partisans" -- a civilian was concerned. I have here the original envelopes, but I cannot submit them because I have to return them, but I would like to show the Tribunal and the prosecution these envelopes in order to clarify this point.
(Dr. Durchholz then showed to the Tribunal and the prosecution various papers.) I have made out a supplement to my trial brief which, I am told, is already on the way to the Tribunal and I would like the Tribunal to take notice of this, at the proper time. ant Schulz.
THE PRESIDENT: Very well.
DR. FRITZ (ATTORNEY FOR THE DEFENDANT FENDLER): I have altogether four documents to submit, Your Honor. The first two are combined in Document Book II for Fendler. First, Fendler Document No. 22 and I offer it as Exhibit No. 24. It is an excerpt from a Report of Events No. 60 of 22 of August 1941. The document contains detailed statements about agriculture, or, at least, agricultural conditions at the time when Russia was occupied. Furthermore it pertains to the building up of the Agricultural Administration of the Soviet Union and it also concerns the economic position in this area. I offer this document because it covers and supports the statement of the Defendant Fendler, who, in direct examination said that the reports of Department III were very extensive ones and took up his time so much that for other tasks he had no time whatsoever.
The next,document 23, I offer as Exhibit No. 25. It is an affidavit of Dr. Wallfried Vernunft of 18 November 1947. It pertains to the activity of the Defendant Fendler which he indulged in from 1943 to the collapse of Office VI of the Reich Security Main Office. It also concerns itself with the knowledge of the Defendant Fendler about other activities of this office. This is of probative value for Count III. Finally it is a testimony concerning Defendant Fendler's character. Defendant Erwin Schulz of the 21st of January, 1948. It is Document Fendler No. 24. I offer it as Exhibit No. 26. Schulz confirms in this document the fact that he returned to Berlin before Hermann who was Kommando Chief of the Kommando IB and also before Fendler, and therefore he has exact knowledge of the fact that Fendler returned to Berlin before Hermann, from his assignment in Russia.
Last I offer another supplement to the Fendler document book. It is Document No. 25. I offer it as Exhibit No. 27. It is an affidavit by Karl Hennicke, which he made out on the 22d of January, 1948. Hennicke is in Nurnberg in prison. May I say the following concerning the document: In my Document Book I for Fendler there is an affidavit by Karl Hennicke.
Here it is Fendler Document No. 12, Exhibit No. 10, wherein Hennicke testifies among other things to and I quote:
"I am not aware of the fact that Fendler was ever the Deputy of the Kommando Chief. As such he figures neither in reports nor in discussions of the group." Witness Karl Hennicke which is in Rebuttal Document Book V-C, Document NO-4999, Prosecution Exhibit 202. In contrast to the implications of the passage just quoted Hennicke testifies in the affidavit among other things, and I quote:
"In view of the fact that Fritz Braune arrived at the headquarters of the Einsatzgruppe only after Hermann had been relieved of his duties, the Sonderkommando 4b was left without a chief for a period of two to three weeks. During this interim period the unit was commanded by the senior officer Lothar Fendler."
davit which he made out for Fendler I asked to see Hennicke again, after notifying the prosecution of this request, and he gave me this statement, the affidavit of 27 January, 1948, which I now offer here. In this affidavit he rejects what he said in Document 4999 which I have just quoted.
DR. MINTZEL(ATTORNEY FOR DEFENDANT STRAUCH): Your Honor, may I begin with the submission of evidence for the Defendant Strauch?
THE PRESIDENT: Please do.
DR. MINTZEL: I submit in Document Book I as Exhibit No. 1, Document No. 1, an affidavit of the wife of Defendant Strauch from which the date becomes evident of which Strauch began his service in Riga and when he began his service in Minsk. She says that her husband had gone to Riga on the 10th of November, 1941, and he left Riga for Minsk on the 21st of March, 1942.
Exhibit No. 2, Document No. 2, is an affidavit of Ida Strauch, that is the mother of the Defendant Strauch, in which she states that her son left Riga for Minsk on the 21st of March, 1942 and in which she also explains why she remembers this date so exactly.
Next is Exhibit No. 3, Document No. 3, the affidavit of Oskar Strauch. That is the father of the Defendant Strauch. In this statement of the 21st of March is given as the commencement of the service of Strauch in Minsk.
The next document, Exhibit No. 4, is of the same content. It is the affidavit of one Paula Gunkel.
Next is Document No. 5, Exhibit No. 5, the affidavit of Heinz Wanninger, in which he comments on the character of the agencies of the Commanders of the Security Police and SD and their inclusion in the civil administration of the occupied Eastern territories.
Next is Exhibit No. 6, Document No. 6, the affidavit of Carl Zenner. Zenner was in Minsk as the SS and Police Leader. Therefore, he was the Chief of the Defendant Strauch in White Ruthenia.
He testifies that the Defendant Strauch until the day he started his service was deputized for by an SS Sturmbannfuehrer Hofmann who acted in an entirely independent manner. He also testifies that Strauch had received the approval by Heydrich not to have to carry out the elimination order in White Ruthenia, or, at least, to postpone the carrying out of this order for the time being. He also comments on the so-called Kube letter and he also says why the Kube letter was in complete contrast to the happenings and incidents in White Ruthenia.
Document No. 7, Exhibit No. 7, is the affidavit of Walter Schimana. Schimana was also an SS and Police Leader in Minsk and as such, Strauch's superior officer at the time when Strauch was commander of the Security Police and SD in Minsk. Schimana testifies that in the time mentioned in the Kube letter no operations were carried out against the Jewish population in White Ruthenia and that at his time transports of Jews from the Russians did not arrive. He comments on the personality of the SS and Police Leader Jeckeln as to Kube's character and comments on the contradictions which become evident from the contents of the Kube letter and conditions in White Ruthenia. He then says that Rakov and Chervensk were not within the sphere of activities of the Einsatz Chief in White Ruthenia.
Next I submit Exhibit No. 8, Document 8, the affidavit of Johannes Feder.
Feder was the Field Intelligence Staff Officer in the SD in Minsk, which was the agency in which Strauch worked when he was stationed at Minsk. Feder says that in White Ruthenia no Anti-Jewish activities were carried out in his time and that the period to which Kube refers, Jewish transports did not arrive and he also testifies explicitly as to the situation in White Ruthenia, especially with regard to the activity of the partisans. He says that Strauch mainly busied himself in partisan warfare and that in these operations against partisans he took the part of a G-2.
Exhibit No. 9, Document No. 9, is another affidavit of the same Feder concerning the so-called S-carriages. These S-carriages were only used as transports for SS men and supplies, but not for what they were allegedly supposed to represent.
Document No. 10, Exhibit No. 10, again is an affidavit by Johannes Feder in which Feder states how, according to his knowledge, the incidents happened in Sluzk, about which a certain Ruebe talks in an affidavit which was submitted by the prosecution. He says that this incident was a part of a partisan war in which members of the Office of the Commander in Minsk took part as espionage units as support of the police. Police Leader von Olberg was in charge of these operations.
I submit as Exhibit No. 11, Document No. 11, which is an affidavit of Hubert Strathmann. In this affidavit Strathmann describes the very extensive partisan activity in white Ruthenia and the part the agency of Strauch played in these measures. Strathmann also says that in the time which is mentioned in the Kube letter, no anti-Jewish actions were carried out in Minsk and no Jewish transports arrived. He comments on Kube, as far as he knows Kube's personality.
Exhibit No. 12, Document No. 12, is another affidavit of Strathmann concerning the so-called S-carriages as means of transport.
Exhibit No. 13, Document No. 13, is another affidavit of Strathmann in which Strathmann, as Feder had done formerly, comments on the incidents which happened in Sluzk which are mentioned in the Ruebe affidavit and plays a certain part in this affidavit which has been submitted by the prosecution against the defendant Strauch.
He also says that the incidents in Sluzk happened within a program of a larger anti-partisan action and members of the agency of the Kommando in Minsk took part as espionage officer in the various units.
AS Exhibit No. 14 is also on affidavit of Herr von Toll, in which he comments on the time that Strauch commenced his service in Minsk, and he also says that during the time to which the Kube letter pertains no anti-Jewish operations were carried out in Minsk.
The last exhibit from the Document Book No. 1, is Document No. 15, which I submit as Exhibit No. 15; affidavit by one Lohse, who was Reich Commissar for the E stern territories. Lohse was alleged by the receiver, the so-called Kube letter. The Kube letter was at any rate addressed to him. He describes Kube's personality, his attitude toward Jews, and the contradiction with the Kube letter. I further present Document Book No. 2 -
MR. GLANCY: If the Tribunal please, the Prosecution has but one of the affidavit of Frau Strauch, because of her relationship to the defendant. However, if the Tribunal deems it correct and proper to so admit the affidavit; we at this time would like to reserve our right to cross examine her.
THE PRESIDENT: Defense counsel, of course, is familiar with the rule that the wife of a defendant can not be compelled to give any testimony against her husband.
DR. MINTZEL: Yes, Your Honor.
THE PRESIDENT: She, of course, is permitted to testify in his behalf, but once she does that then she waives her immunity from crossexamination, so that now you are confronted with this situation, either of allowing the affidavit to remain and giving the prosecution the right to cross examine her on all subjects or not to present the affidavit.
DR. MINTZEL: It is, or course, possible for the defense to prove from the documents the matters pertaining to the activity of Strauch's service in Riga and as stated by the defendant , but the defense does not object to Mrs.
Strauch being examined as a witness and we would like to actually submit the affidavit ..
MR. GLANCY: Also, Your Honor, you might remind defense counsel that the immunity extends more specifically to Strauch himself, rather than his wife. He also just waive this immunity. He is the one who says whether or not his wife will testify.
THE PRESIDENT: That is also a feature of this rule of law, and do you believe that the defendant will be willing to waive that immunity, that cloak of protection placed around himself through his wife?
DR. MINTZEL: I am convinced of that, but perhaps I could ask the defendant personally and I could tell the tribunal tomorrow morning of the result.
THE PRESIDENT: Very veil, yes.
MR. GLANCY: In the meantime, sir, I would like, as a matter of record, state that we wish to reserve our right.
THE PRESIDENT: The right will be preserved to the prosecution.
DR. GLANCY: Thank you, sir.
DR. MINTZEL: I would like then to proceed with the submission ments that it contains I would like to mention that unfortunately the documents of Document Book 2, as well as No. 3, beginning from number I have been numbered from the beginning. I came to an agreement with the Secretary General to suggest to change the enumeration to the effect that in Book 2 and Book 3 the document numbers should be changed to the same number as they were to be submitted as exhibits. I now offer as Exhibit No. 16 that document which is called Document 1 in Document Book No. 2; it should be, however, document No. 16. Exhibit 16, document -it was 1, it is now 16. This document consists of excerpts from reports of events. The excerpts from No. 24 and No. 26 on page 2 show that Einsatz Commando 2 moved from Latvia to the area around Leningrad.
The excerpt No. 29 on page 3, has the name to the predecessor of Strauch -- Batz, was crossed out in Berlin and the name "Strauch" had been substituted by one of the officials in Berlin. In the location reports supplement to these reports of events, the name "Strauch" appears for the first time in the report of events of the 5th of November, 1941. This is not incontradiction of the fact that Strauch had actually only arrived in Riga on 10-11-42. The remark made in handwriting in the location report at Berlin had been made by the Departmental official in Berlin, apparently because he was informed authoritively that Strauch had been appointed on this very day, or perhaps the preceding day. Knowing this decree, he crossed ou the name "Batz" and he substituted the name "Strauch". The following excerpts show Strauch as the chief of Einsatz Kommando 2 up to the excerpt from report of events 146 on page 8. of the 15th of December 1941. If Einsatz Kommando 2 is mentioned here in the excerpts that does not necessarily mean that Strauch was really chief of Einsatz Kommando 2 which was removed from Latvia to the sector around Leningrad. It is a fact that the institution of the agencies -- the permanent agencies of the commandos in Riga for instance, was only mentioned in later reports of events, but that the Einsatz Kommando 2 as it is mentioned here, only means negligent attitude on the part of the officials who -
MR. GLANCY: It is my opinion, sir, that the documents will speak for themselves quite forcibly, and therefore this is not the time nor the place for argumentation.
THE PRESIDENT: You are presenting that document as if you were arguing the case, and of course, you know this is not the time to present the argumentation. In any way that you can enlighten the Tribunal as to the nature of the document you will be helping the Tribunal. We don't object to that, but to draw conclusions from a document and argue on it is not proper at this time.
DR. MINTZEL: On this occasion I only pointed out the difference between an Einsatzkommando of the commanding agency because here it is particularly obvious. May I now come to the Report of Events No. 149 on page 9 of the 22nd of December 1941. Here Strauch is mentioned for the first time as the commander in White Ruthenia. He appears, however, only in a few reports as such because very soon, on the 7th of January 1942, in this excerpt of the Report of Events 152 which is on Page 10, it adds: the present SS-Sturmbannfuehrer Dr. Hofmann deputizing for him, which provides an explanation that he was only for a short time shown here as the commander of the Einsatzkommando in Minsk, while after a few days it became evident that there is a deputy. But I shall come back to that in my final plea. show Strauch merely being mentioned in that capacity and during that tern of office he was there. They refer to the whole time during which Reports of Events were issued at all. This is up to No. 195 of the 24th of April 1942.
My next exhibit is No. 17. It used to be No. 2 but now it will receive No. 17. It is an excerpt from Activity and Situation Report No. 11. This excerpt gives a detailed report about the partisan organization in Minsk and it also shows the part which a number of Jews played in this partisan organization.
My next exhibit is Exhibit No. 18 which was No. 3, but it now will become Document No. 18. This is an excerpt, or at least it contains expcerpts from the reports from the occupied eastern territories. These reports begin at a certain date and they take the place of the former so-called Reports of Events.
What is contained here as evidence material pertains to the constantly proving partisan danger in White Ruthenia, and Report No. 9 is of special importance. It is on pages 31 through 35. This report has been quoted by the prosecution in excerpt and has been introduced as exhibit No. 178, Document No. 5156. The mimeographed copy which I have received of this exhibit from the prosecution shows that those parts are missing which would threw some light on the partisan danger in White Ruthenia and which actually deal with the participation of Strauch in the concerning operations. For instance, this report of events from the occupied territories in the east contains a report of a discussion in the presence of all military personnel and Security Police personnel concerning this question, and Strauch also took part in this meeting. -- detailed description of these discussions and the confirmation of the fact that fighting squads were to be formed and that the Security Police units should carry out the espionage activous in the program of this special action, is missing in the documents as submitted by the prosecution. Therefore, I have here collected the pages which they left out.
MR. GLANCY: I wish to remind defense counsel that the rule in this Tribunal as in others is that when an extract is offered the entire document is offered. He is at liberty and there are no objections on the prosecution's part that he offer this. However, we want it understood that the entire document was open for his perusal.
THE PRESIDENT: You want to exclude the interpretation that you purposely withhold any pages which might be of benefit to the defense?
MR. GLANCY: Exactly, sir, I want that completely understood.
THE PRESIDENT: Very well, it will be understood on the record.
DR. MINTZEL: I have only pointed this out, your Honor, because naturally as a rule those who deal with such documents have used the mimeographs which are put at their disposal by the prosecution.
I have to point out the following in the excerpt from No. 17 of the reports from the Eastern occupied countries which you find on Page 7 of the index, there is a printing mistake. After excerpt from the 7 August 1942, Excerpt from No. 15, it should say also "Excerpt from No. 47 of the 26th of March. 1943." What follows there is of the 26th of March. 1943. The excerpts here from the report numbered 43 shows that Einsatzkommando 2 and the commanding agencies are separate entities, both with regard to personnel and space.
The next exhibit from Document Book No. 2 I shall offer as Exhibit No. 19, the document which has born the No. 4 and which is now going to be made No. 19. It is an excerpt from "Soldiers Handbook on the Rules of Land warfare" by an American colonel, Judge Advocate General's Department, in which he explains the rules of land warfare of the Ameridan G.I.'s. The excerpts which I submit here talk about members of the army being not liable to punishment if they carry out orders by their commanding officers which are in contradiction to the rules of land warfare; it says that those that carry out the order are not punishable but those who give the orders are.
Exhibit No. 20 is Document No. 5 which will now become Document No. 20. In the following exhibits we have excerpts from the record, comments by the defendants and the witnesses which have been examined, as witnesses for the defendant Strauch. They are, of course, contained in the records, but they are here with shortened and put into the document book for Strauch.
The Exhibit No. 20 contains the testimony of the defendant Schulz. As a witness for the defendant Strauch, Schulz comments on the fact that in the location reports the name of a commander is being mentioned at a time when the named defendant has not started his service yet.
MR. GLANCY: It seems to be cumulative and merely a burden to the record. It is admittedly in the record already. We see no reason for its further inclusion in this form.
THE PRESIDENT: Judge Speight offers the cement that it is pretty convenient to have it there before us.
MR. GLANCY: On that basis, sir, I withdrew my objection.
DR. MINTZEL: In order to summarize the opinions of these men who testified as to Strauch's character, attitude and activities, I have here put then in a shortened and abbreviated form for the convenience of the Court. I offer former Document No. 6 now as Document No. 21 and as Exhibit No. 21 the testimony of the witness Jost as witness for the defendant Strauch. Jost says, concerning the question whether Strauch could have been chief of the Einsatzkommando 2 or whether he was just a commander of the Security Police or the SD in Latvia in Riga, what he has said during his own examination, the distinction between the Einsatzkommando and the commanding agencies testifies that according to his memory in June or July 1942 no mass executions took place in Ruthenia. He expresses his opinion of the participation of the Einsatzkommando in the partisan warfare and he says that Strauch, at the beginning of March 1942, was still stationed at Riga and not in Minsk ashe had met Strauch at that time in Riga and he had discussed current matters with him. Jost furthermore declares that Strauch had received the authority not to take any anti-Jewish measures so far, and on the occasion of this discussing Jost expresses his comment on the Kube letter.
Then there is No. 22. It is a document which is up to now No. 7 which is now going to be 22. It isthe testimony of Dr. Blume as the witness for the defendant Strauch. Dr. Blume has stated that Strauch, after he had been drafted to Riga as commander, had telephoned him and had asked for this appointment to be postponed ashe had broken his arm.
Court No. II, Case No. IX.
Dr. Blume furthermore states that when he was transferred from Riga to Minsk, which had been planned at an early date, Strauch broke his arm again which prevented him from leaving, and thus it was decided that Strauch, before he was to commence on his new appointment in Minsk, should be cured of his habit of breaking his arm.
As Exhibit No. 23, I submit Document No. 8, which is now going to be Document 23. The testimony of the defendant Sandberger as a witness for the defendant Strauch, and Sandberger states that although he was stationed in the adjoining territory, Estonia, where he was commander of the Security Police and the SD, he had never heard anything about the fact of Strauch was the commanding chief of Latvia, and above all other things, Dr. Sandberger comments upon his affidavit of the 19th November, 1944, in which he says that Strauch participated in Jewish persecutions, but he says here that he could not have any knowledge of incidents that happened in Minsk as he had never been there himself.
My last exhibit in Document Book II is Document No. 8 which is going to be changed to No. 24. It is an excerpt from the total report of the Einsatzgruppe A up to the 15th of October, 1941. From this it becomes evident that two-thirds of the entire Einsatzkommando II were removed to Lenigrad, and that only one-third remained in order to install an agency for the Commanders of the Security Police and the SD in Latvia.
In Document Book No. III -
THE PRESIDENT: Do we have Document Book III?
SECRETARY GENERAL: No, Your Honor.
THE PRESIDENT: If you are willing to present it without our having it before us, we are willing to hear you.
MR. GLANCY: If the Tribunal please, the Prosecution is not in possession of the document book, and I would like to reserve the right to lodge objections at a later time. Also, at this time, Sir, I would like to object to one document in Document Book II. This is Document Court No. II, Case No. IX.
No. 4, Exhibit 19, an excerpt from as Soldier's Handbook, which treats with reprisal measures, and the fact that the soldier will not be prosecuted if he follows superior orders. However, I would like to have the chance to inform myself further. I do believe that the stipulations mentioned here are qualified as to what is patently illegal shall not be obeyed. That is from my memory and not from the book itself. However, I think that is in there as qualification.
THE PRESIDENT: Well then, you are reserving the right to refer to the entire handbook or even to present further excerpts from it.
MR. GLANCY: Yes, sir.
THE PRESIDENT: That right is reserved.
MR. GLANCY: Thank you, Sir.
DR. MINTZEL: Your Honor, it would be welcome, I think, if the three documents contained in Document Book III could be presented. I shall submit these documents now, although the translations have not been available to the Prosecution or to the Tribunal. Yet if you agree, I shall do so now.
THE PRESIDENT: Yes, please present them.
DR. MINZEL: I submit as Exhibit No. 25 Document No. 1, in Document Book III, which is now to receive the Document No. 25. It is an affidavit of the defendant Strauch of the 22nd January, 1948, in which he comments upon the matters which are contained in rebuttal Document Book No. V-A, which is a bulky document pertaining also to Strauch's activities. Strauch makes the statement in detail concerning these documents, especially to Prosecution Exhibit 196 that he had nothing to do with the police battalions. In Exhibit 221 he says that Vandenbach's order that seventy Jews who were in the service of Kube were to be executed, was left to his successor in White Ruthenia who had this order carried out. He speaks about the kind of participation in the operations which were mentioned in the Ruebe affidavit. He also says concerning the Exhibits of the Prosecution, Exhibits 224 and 225 that he and the men of his agency did not take part in the operation Court No. II, Case No. IX.
"Harvesting Festival" (Erntefest) and "Jacob", and that no persons were killed who were not either partisans or who could be proved to be aids or abettors of the partisans. Commenting upon Exhibit No. 226 Strauch says that the executions mentioned therein are those of people who had been condemned to death by German courts.
My next Exhibit is No. 26; it was Document No. 2, and the document in Document Book III will now receive the Document No. 23. It is an affidavit of the defendant, Dr. Rasch, of the 26th January, 1948. Rasch says that he visited Strauch in Riga at the end of January or the beginning of February, 1942, and that at that time he, Strauch, had a permanent domicile, and that he, Rasch, had stayed with him in Riga.
The last Exhibit is No. 27, former Document No. 3 in Document Book III; it is now Document No. 27; and is an affidavit of the defendant Dr. Gick, in which he says that in the reports of the events of the 22nd December, 1941, until the 3rd of April, 1942, the commander of the Security Police and SD for Latvia, Dr. Lange had been named.
THE PRESIDENT: Any other Defense Counsel desire to present any documents? Does the Prosecution have anything to offer?
MR. GLANCY: Not at the present time, Your Honor.
THE PRESIDENT: Did Dr. Heim intend to present something for the defendant Blobel? Apparently not.
MR. GLANCY: I don't think so.
THE PRESIDENT: Dr. Aschenauer, you will be ready to proceed tomorrow morning?
DR. ASCHENAUER: Yes, Your Honor.
THE PRESIDENT: Very well. Tomorrow morning we will hear the presentation of Ohlendorf's case; then, that will be followed by the presentation of the final pleas for the other defendants. Following that, the Prosecution will make its summation plea.
Court No. II, Case No. IX.
judgment will be rendered. Some reference has been made to a date, but that date cannot be maintained because we have delayed in the hearing of the summation pleas, so that the date of the judgment is unknown to anyone, including the Tribunal.
MR. GLANCY: After the generous offer of the Tribunal to sit as long as was necessary to finish the Defense's case and offer of documents, I suppose we can assume that it is complete in fact.
THE PRESIDENT: Yes. It is now understood that there is no further presentation of documents in open court. Should there be a straggling document show up, than it will be presented directly to the Judges with copies going to the Prosecution.
MR. GLANCY: Thank you, Sir.
THE PRESIDENT: The Tribunal at this time will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 0930 hours, 4 February 1948.)
Otto Ohlendorf, et al., defendants sitting at Nurnberg
THE MARSHAL: The Honorable, the Judges of Military Tribunal II. Military Tribunal II is now in session. God save the United States of America and this Honorable Tribunal.
THE PRESIDENT: Dr. Aschenauer.
DR. ASCHENAUER: (Attorney for the Defendant Ohlendorf) Mr. President, Your Honors.
based on the substantive law of Decree No. 10 of the Control Council which was issued by the 4 signatory powers in execution of the Moscow and London Declarations, dated 30 October 1943 and 8 May 1945. Therefore it is to be examined whether and to what extent this law is consistent with the rules of international law. The Tribunal not only is entitled, but is also obligated, to make this examination. It is obvious to choose as a parallel the right of examination on the part of the American judge with respect to the constitutionality of the established law, all the more as the unwritten rules concerning the right of examination by the judge apply to all American judges, therefore also to the military Tribunal which was established by virtue of Decree No. 7. The London statute, the Decree No. 10 of the Control Council end the implementation rules based thereon are called the corner stones of the new international law and, in the opinion of the first Nurnberg verdict, the sentence has come up more than once that everything, called by the London Statute an agreement serving especially the trial of the German war criminals, is in itself nothing else than a generally recognized law, an international law. If this, however, in the case, then this law, on the part of the judge who is called upon to apply it, must likewise submit to the examination which every law is subject to with respect to its constitutionality.
There is no reason whatsoever, if we follow the American conception of the law, to regard an agreement, based on international law, as nothing else but a national internal law. On the contrary: In general, more guarantees are given in the field of national legislation - if only on account of the homogeneousness of the legislative bodies - for the fact that the individual laws keep within the framework and spirit of the constitution more than in international law where the body of legislators is more or less mixed and - as in collective agreements like that now under discussion - is more or less determined by accident. Rules of international law, too, are subject to examination by the Court. Therefore it will be necessary that the Court will examine every sentence of the international law with respect to its consistency with the generally recognized fundamental rules of international law. These fundamental rules the existence of which is today completely undisputed, regardless of the difficulties as to their valuation and definition in the individual case, at a time of reorientationof international law in particular to principles exceeding the legal obligation out also those borne by the "Conscience publique", are here taking - mutatis mutandis the place of the national constitutional law. The basic rules of international law also include the general fundamental rules of the contract law. The rules about efficacy and lack of efficacy of agreements, however, their interpretation in the individual case may be con entious, are the more general, more comprehensive and older sentences with respect to the system of the London agreements; in the same way as an agreement, based on international law, must be regarded as void, if, for instance, it limits the sovereignty of a state in an immoral manner just because of the fact that the corresponding contract regulations are in contradiction to the superordinated, generally applied rules of sovereignty, the ad hoc concluded agreements of international law which are vitiated by a defect, recognized by the general legal principles of international law, are in the same way to be regarded as void.