ception of law by the States according to which the plea of superior orders would not be admissible. At all events, such a conception of law did not find its expression in the actions of the States. This can be seen a) from the declarations and decisions of international congresses, b) from the field manuals of the Armies and the criminal codes of the c) from the scholarly opinions of generally recognized teachers of In As for a: a) During the peace conference in 1919 a commission occupied itself with the problem whether or not a plea of superior orders frees from responsibility, and it laid down its opinion in a report.
1) This commission did not declare the plea of superior orders to be inadmissible, but left it to the judgment of the court whether or not the plea of superior orders frees the defendant from his responsibility. In this report it is expressly said that the court has to decide on the question whether a plea of superior orders is sufficient to acquit a person charged with responsibility. This regulation was the result of the following deliberations, which are shown in the forementioned book by Garner. son who acted in compliance with an order. For, if he had refused to comply with the order, the subordinate would probably have been shot. In such cases, therefore, justice requires the punishment of the person who is responsible for the order and not that of the one who executed the order. If the commission nevertheless declined to use this principle, which 1) Published in 46 Clunet (1919) pages 131 ff, excerpted from German, International Law in the World War (1920), volume II, page 490: "It will be for the court to decide whether a plea of superior orders is sufficient to acquit the person charged with responsibility."
could have arisen from this. It was feared that then every subordinate who committed a punishable action would plead to have acted on superior orders, and, since according to the general rules of the code of criminal procedure the State has to bear the onus probandi, it would then be impossible to punish subordinates for the perpetration of punishable actions. It was only for that reason that the plea of superior orders was not generally considered as admissible, but it was left to the court to decide whether the plea of superior orders is to be considered as admissible. From this results: The plea of superior orders is to be declared as admissible if the existence of such an order is incontestably to be considered as proven. ders would be admissible according to this report of the commission, since it is without doubt established that the defendants acted in compliance with an order issued by Hitler. As for b: b): The British military code, issued as early as 1715, already provided that every soldier had to obey every order given by his superiors regardless of whether the order was in accordance with the law or in violation of the law. To this effect I refer to the statements of Professor Lauterpacht in the essay in the British Year-Book for International Law issued in 1944.1) In the following period this conception became a principle in the armies of all nations. Moreover, since 1914 the field regulations of the armies of most nations have accepted this principle that the plea of acting on higher orders was admissible to be true, for the reason, that the admission of the plea of acting on higher orders had already become a common law. 2) 1) Lauterpacht, The Law of Nations in the Punishment of War Crimes-in the British Year Book of International Law, 1944, page 71: "The Military Code of 1715 provided that any officer or soldier who should refuse to obey the military orders of his superior officer" shall be liable to capital punishment. The code contains no qualifications as to the lawfulness of the command." 2) George Manner, Instructor in Political Science, University of Illinois, in the American Journal of International Law, No. 3, July 1943, page 417: "Since 1914, at least, the maxim has been incorporated in the war manuals of the powers as a rule of the customary laws of war."
the Rules of Land Warfare have explicitly declared the plea of acting on higher orders as admissible. Up till April 1944 the provision was contained in par. 443, Chapter XIV of the British Manual that soldiers cannot be considered war criminals if, by acts they were ordered to carry out by their governments or their superiors, they had violated recognized laws of war. This provision explicitly precluded a punishment by the enemy. To this effect I refer to the statements in Law Reports of Trials of War Criminals, Volume I, page 18, 1947, where, with reference to the fundamental statements made by Oppenheim in his book International Law (volume II, page 454, 5th edition), it is furthermore established that in such a case the enemy can only call to account the officials or commanders for the issue of such orders.1) Land Warfare corresponded with the provision of par. 4432) of the British manual. According to this provision, members of the American armed forces must not be punished if they had committed a punishable act on orders or even with the approval of their government or commanders. The commanders themselves rather could only be called to account. made between a lawful and an unlawful order and that the subordinate person did not even have the right and much less so the obligation to examine the lawfulness and legality of an order. L) Law Reports of Trials of War Criminals, Vol. I, 1947, S. 18: "Until April, 1944, Chapter XIV of the British Manual of Military Law contained the much discussed statement (Par. 443) that "members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their Government, or by their commander, are not war criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such orders if they fall into his hands, but otherwise he may only resort to other means of obtaining redress.."This statement was based on the 5th edition of Oppenheim's International Law, Vol II, page 454." 2) "Individuals of the armed forces will not be punished for these offenses in case they are committed under the order or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall."
The provision contained in par. 483 of the British Manual (British Manual of Military Law) was rescinded on 15 April 1944. Since that time the plea of acting on higher orders is no longer admissible. ed on 15 November 1944 through the Change No. 1 of the Rules of Land Warfare. idently made in view of the impending end of the war and the contemplated trials of war criminals.
DR. GAWLIK: Your Honors, after I wrote these lines and after I handed in my final plea I received the book by Sheldon Glueck, "War Criminals, their Prosecution and Punishment", 1944 and I found this opinion confirmed in the book. My colleague Aschenauer has already commented in detail on this book. Therefore, I shall not go into any detail but I call the attention of the Tribunal to several sentences from this book which I shall ask the interpreter to read.
INTERPRETER: From page 141 of Sheldon Glueck's book. "The provisions in the American rules quoted above seemingly protects them against punishment not only in the case of orders of their Government (and perhaps acts of State) but also as in doing the prohibited act, they obeyed the order of a military superior, even though they knew their acts to be contrary to the laws and customs of legitimate warfare."
DR. GAWLIK: Even Glueck who, as the book shows, is not at all proGerman and who attempts to establish a procedure for the trial of war criminals, cannot get over the exclusion of the plea of superior orders. If Neumann in 1943 or 1944 would have been put before an American Military Tribunal for the charges made against him now he could not, on the basis of this regulation 347, in the rules of land warfare, have been punished according to this rule. I emphasize expressly that this regulation also applies to enemy nationals. Through the change in this regulation this plea of acting on superior orders, could only be amended to refer to those actions committed after 15 November 1944 but not to those committed before that.
significance as one of the laws promulgated by the Nazi on the occasion of the burning of the Reichstag, namely the retroactive admissibility of the death penalty for arson. At that time the world raised a hullaballoo, they spoke of a violation of the law, they spoke of the beginning of the dissolution of the legal state and one could say that those people were right. I have too great a confidence in this Tribunal and, therefore, I do not believe that they will build up their judgment on such an insecure position.
I shall continue in the final plea: tary Penal Code and author of the book Military Law and Precedents, admits the plea of acting on higher orders and expresses the opinion that an order precludes the punishment.1) As a reason for this opinion, held by him, he asserts that obedience was the fundament of every army and that the subordinated person was therefore not under the obligation to decide by himself about the question whether an order given to him was lawful or unlawful. Such a conduct by the subordinated persons would, according to Winthrop's point of view, mean insubordination and would lead to undermining of military discipline.2) In this connection, Winthrop also refers to a decision by the Supreme Court which likewise comes to the same result. It is said in this decision that it would mean the end of every discipline if, for instance, sailors aboard a warship on the high seas would. on the basis of their personal sense of justice, have the 1) Winthrop, page 296: "That the act charged as an offence was done in obedience to the order - verbal or written - of a military superior, is, in general, a good defense at military law." 2) Winthrop, page 296: "But for the inferior to assume to determine the question of the lawfulness of an order given him by a superior, would in itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline."
possibility to shake off the power of command of their commander by reasoning that they considered the execution of the order an unlawful act.1) Law that the obligation for obedience on the part of the soldier, and such was Naumann during his time of duty in Russia, is not preceded by the obligation to examine whether the order is in violation of any law, especially the laws of war. especially the existing conditions in Germany, able to the Tribunal if defendants in this trial, interrogated as witnesses in their own defense, have again and again referred to the fact that it was their duty to carry out the order and that they had no authority to decide about the legality of the order. ed as the supreme duty of the citizen. The army and the civil servants were the pillars of the German state. It was the supreme duty of both to obey and unconditionally comply with the orders given by superior authorities. This is a fact which is based on the historical conditions of Germany, especially on the historical development of the past 150 years, a development which is completely different from that of the United States. was emphatically advocated especially in the National Socialist Fuehrer state. The individual citizen was not entitled to voice his own opinion. Neither was he permitted to express any criticism on measures taken by the state administration. 1) Supreme Court in leading case in the Navy, Dinsman von Wilkes, 7 Howard, 403, quoted by Winthrop, page 296: "There would be an and of all discipline if the seaman and marines on board a ship of war on a distant service were permitted to act upon their own opinion of their rights, and to throw off the authority of the commander whenever they supposed it to be unlawfully exercised."
those in a free democracy. To be true, it is correct that the provisions of the British Manual and the similar provision in the Rules of Land Warfare of the United States, with respect to the plea of acting on higher orders, have undergone a change in as far as the plea of acting on higher orders was no longer admitted to the extent as this was the case in the past. However, during the period in which Naumann was chief of the Einsatzgruppe B, namely from the end of November 1941 till March 1943, the old provisions of the aforementioned field regulations were still fully valid. of acting on higher orders, is not refuted either by Par. 47 of the German Military Penal Code which in this connection has been repeatedly mentioned in this court-room.
The provision of Par. 47 of the Military Penal Code cannot be applied if only for the reason that it is not applicable to orders given by the chief executive of the state. This interpretation results in particular from the meaning of this provision. The provision of Par. 47 of the Military Penal Code always presupposes the possibility to refuse obedience must have the possibility to complain to the superior officer of the person who had given the order so that he might find justice there. Only in this case can he make use of the provision of Par. 47 of the Military penal Code. If the soldier does not have this possibility, then his refusal to obey an order entails a severe punishment without examining the lawfulness of the order, and the unlawful act, as ordered, cannot be prevented. The provision of Par. 47 of the Military Penal Code therefore applies, for instance, to the common soldier who refuses to carry out an unlawful order given to him by his lieutenant, because he then has the possibility to complain to the superior officer of the lieutenant. Moreover, an unlawful order given by a general can be rejected since in this case the possibility is given that he who received the order can turn to the general's superior. This possibility, however, does not exist if any orders, which henceforth are found to be unlawful, have been decreed by the chief executive of the state. And this possibility by no means exists if the orders are issued by a dictator who combines in his hand all instruments of power of the state, as this was the case with Hitler, a dictator who, by use of all means at his disposal, would have actually executed the orders he decreed. What action should the defendants take against the orders given to them by Hitler? How could they have prevented the execution of these orders? Whom could they approach in order to find justice in respect to the unlawful orders given by Hitler? Under the present circumstances it is simple to assert that the defendants ought not to have carried out the order.
No answer, however, can be given to the question what action they ought to have taken, in the situation in which they were at that time, to prevent the execution of the order. Even according to the prevailing German law itself unlawful orders are effective.1* Also according to the French penal code the soldier is obligated to obey an order of the legitimate authorities, regardless of whether the order is lawful or not. The soldier solely has a right to complain after the execution of the order. In this connection I refer to the statement by Cobbett.2* Moreover Garner, who in his statements refers, among others, to the view of Professor Nast of the Nancy University and to the example mentioned by the latter, has come to the same result.3* 1* So binding, manual of the penal code (1885), page 804, furthermore Eberh.
Schmidt, page 58. Very clearly in this meaning RMG. 1, 63:
evidently also Rittau, decree 2, (page 98 ibid.) 2* Cobbett, Volume II, page 176/77: "By the French penal code the legitimate authority (p). But it has been held that the soldier lawful or not.
He may also protest afterwards." 3* Garner, Volume II, page 486: "Article 64 of the French criminal (Delit.)
Professor NAST of the University of Nancy has expressed courts.
1" Professor Nast has added further explanations to this question.
In this he comes to the conclusion that the sedes materiae of French law is Article 64 of the Penal Code, according to which an act committed under duress does not constitute a crome. Among these acts Prof. Nast also includes cases in which a soldier has to carry out orders. In this connection Nast also mentions the Belgian and Dutch Criminal Codes, which contain the same provisions. In this connection he refers particularly to Article 43 of the Dutch Criminal Code, according to which a defendant is expressly exonerated by orders from superior authorities.1) As for Authors' Hypotheses: The hypotheses adopted in legal literature are not sources of international law. This is generally recognized in international law. I particularly call attention to the explanations of Wharton, who refers to statements by Chief Justice Cockburn. There it is said that authors in the field of international law, no matter how valuable their efforts may always be with respect to the interpretation and definition of fundamental legal provisions, cannot make any laws, because laws, in order to be binding, require the agreement of the nations, which can take place by treaty or through suitable statements by the respective governments, or even through established tradition.2) A conviction, therefore, cannot be based on the fact that individual scholars of international law adopt the viewpoint that the appeal to a superior order is inadmissible. 1) Prof. Nast, Revue Generale de Droit International Public, 26 (1919, p. 123:
"The crucial sedes materiae in French law appears to be under duress (which apparently includes the case of a soldier bound to obey orders) is neither a crime nor a misdemeanor.
Art. 327 excludes liability in case of acts "ordonnes par la loi et commandes par l'authorite."
So does Article 190, Articles 70 and 71 of the the French Penal Code.
Article 43 of the Dutch Criminal Code re cognizes generally the defense of superior orders, while Art.
40 lays down the general exception of duress". 2) Wharton, Elements of International Law:
p. 23: "Writers on international law", says Lord Chief Justice Cockburn, "however, valuable their labors cannot make the law.
To be binding, the law must have received the assent of the nations who are to be bound by it.
This assent may be or may be implied from established usage". (e). Moreover, the question of the admissibility of the appeal to the superior order is very much contested in legal literature.
It is in no case rejected by the majority of authors. The appeal to a superior order is first declared admissible, as already mentioned, by Winthrop, who recognizes as a defense the fact that the incriminating act was committed in pursuance to an order by a superior.1) Likewise Garner, the well-known professor of international law at the University of Illinois, declares that it would be unjust to deny the right of a person under military orders to appeal to a superior order. Garner particularly emphasizes that it is not the task of a military subordinate to examine the lawfulness and legality of a military command.2) He is of the opinion that justice requires that that person be punished first of all who bears the responsibility for the order and not that person who acts under duress.3) Professor George Manner of the University of Illinois is also of the same opinion.4) Likewise Oppenheim, the 1) Winthrop, Military Law and Precedents, p. 296: "That the act fense at military law."
2) Garner, Vol. 11, p. 484: "He cannot discuss or question the commands that are given him; he is not the judge of their legality or il legality; and if he were, his ignorance of the laws of war would in many cases make him an incompetent judge."
3) Garner, Vol. 1, p. 484: "In such cases therefore justice, it is and who has a power of judgment or discretion."
4) Manner, The Legal Nature and Punishment of War Crimes, p. 433:
"Secondly, it appears to be equally admitted that the defenses in positive law.
102". - 102) Glueck, 10 ibid. p. 145.
the well-known British professor of international law, has adopted the view of his work "International Law" that the appeal to the superior order is admissible. In this work he declares that violations of the laws of war are only crimes if they have been committed without the order of the belligerent government. He is of the opinion that members of the Armed Forces who commit violations of law at the command of their government are not war criminals and therefore cannot be punished by the enemy. In such cases he grants the enemy only the right to resort to
1) reprisals. Lauterpacht, who brought out Oppenheim's work in 1940, after the latter's death, was the first to abandon this opinion. This view of Professor Lauterpacht, however, has found no concurrence elsewhere in legal literature. It has been particularly attacked by Professor Kelson in his work "Peace through Law", page 98, and described as more than questionable. From these statements it appears that accepted international law is solely and alone decisive in deciding the question whether the appeal to a superior order is admissible in this trial and that according to international law the appeal to the superior order is a reason for justification and exoneration from guilt. In this connection the mental attitude which the subordinate had toward the order would in the first place be irrelevant. This irrelevancy follows solely from the circumstance that the subordinate receives the order without any reasons being given for it and that therefore he usually judges the order from an entirely different point of view than this superior. His assenting mental attitude, therefore, could not signify 1) Oppenheim, International Law, Par. 253: "Violation of rules regarding warfare", writes this eminent jurist, "are crimes only when committed criminals and cannot be punished by the enemy; the latter may, how ever, resort to reprisals". any assent to the reasons for the act.
Therefore, in judging the action the decisive point is not the mental attitude of the person who executes the order any more than the question of whether he executes the order willingly or unwillingly on the contrary, the decisive point would be whether the order of the superior has been proved to exist. Naumann inwardly disapproved of the Fuehrer Order. In accordance with this he conducted himself in a passive way with respect to the order. If he had not done this his superior Kaltenbrunner would not have brought the charge of deficient activity against him, as his fellow defendant Ott has testified on the witness stand. (Transcript p. 3849-50, 3828-3830 German, p. 3787-88, 3766 English) If any circumstance can be of importance for the question whether the appeal to the Fuehrer Order is admissible in the present case it can only be the answer to the question whether Naumann would have committed the acts charged against him if the Fuehrer Order had not existed. However, there can be no doubt that the executions in the area of Einsatzgruppe B during Naumann's time would never have been carried out if they had not been ordered by supreme headquarters. I shall argue this point in detail in another connection. However, if in opposition to the conclusion of my legal arguments the Tribunal should base its decision on the provisions of Control Council Law No. 10, then the clause in mitigation of punishment of Art. 4 b of the Control Council Law is applicable to Naumann, for the condition required by this clause that the perpetrator must have acted under orders is fulfilled. The further conditions under which the clause in mitigation of punishment is to be applicable are, to be sure, not contained in the law. Therefore, it can only depend on the more immediate circumstances, especially on the perpetrator's attitude to the act which he has been ordered to do.
It can, therefore, only depend on whether Naumann obeyed the order only with reluctance or made the act his own through his concurrence. Naumann did not approve of the Fuehrer Order. As the testimony has shown, he definitely disapproved of the Fuehrer Order. Both in his direct examination and in his cross-examination he repeatedly declared with certainty that the execution of the order gave rise to serious conflicts between duty and conscience in his mind. (Transcript p. 881, 913 German, p. 870, 899 English). Naumann has declared again and again that he had considerable misgivings about this order and a mental aversion to it (Transcript p. 911 German, p. 897 English). He has asserted that he was gravely uneasy about the order because it seemed frightfully harsh to him, and that the order occasioned considerable worry and remorse in his mind (Transcript p. 866 , 898, 912 German, p. 855/56, 886, 898 English). He has expressly stated that he did not agree with the order because the killing of defenseless persons went against his feelings (Transcript p. 866, 911, 912 German, 855/56, 897, 899 English). These statements give an accurate reflection of Naumann's real attitude to the Fuehrer Order. There is no occasion to doubt the truth of these statements, all the more so as further testimony has shown that even during his service Naumann expressed these misgivings and this aversion to the order before the Kommando leaders under him. Concerning this I refer particularly to the statements of his fellow defendants Steimle and Ott on the witness stand, both of whom served under Naumann in Russia and reported that Naumann made no secret before them of his disapproval of the order. Steimle has repeatedly stated that Naumann expressed his misgivings to him and assured him that he had passed sleepless nights because of the order (Transcript p. 2073-74, 2082 German p. 2027-2029, 2036 English). Naumann also declared to Ott at the time that he was continuously very seriously worried about the order and mentally disapproved it (Transcript p. 3779, 3832 German, p. 3718, 3770 English). These accounts give an accurate reflection of Naumann's character and nature, that conflict between duty and conscience which is best described by the Dutch citizen, Mrs.
von der Schalk, as enemy of National Socialism, in her affidavit with the words: "I sometimes saw the conflict of conscience which he tried to master when having to choose between loyalty to his ideals and that which I would call 'international decency'." (Naumann Doc. No. 6, vol. 1, p. 5). Naumann was in no way a man who would have accepted the Fuehrer Order and brutally carried it out. Naumann was an enthusiastic soldier and is also described as such by Bach-Zelewski in the latter's affidavit. (Naumann Doc. No. 5, Exh. 4, vol. 1, p. 3). He earned his decorations in active fighting and in battles against the partisans. It was not in keeping with his views to have to tolerate the shooting of defenseless persons. The Prosecution, to be sure, has alleged the contrary and in support of this has referred to a few of Naumann's answers on the witness stand (Transcript p. 911, 913, 914 German, p. 897/896, 899, 900 English) which, taken completely out of context, must understandably give an entirely false picture of Naumann's attitude to the order. In particular, Naumann's last answer on the witness stand, which the Prosecution would like to take as its final word concerning Naumann's attitude, is based on this error. Naumann was repeatedly asked, and this was also put to him as a final question, whether he considered the order unlawful. Thus, in any case, did Naumann understand this question and had to understand it. Naumann replied to the negative and gave the same reason that almost all the other defendants have given to this question. (Ohlendorf, p. 526, 536, Blume p. 1815; Schulz p. 982/84; Steimle p. 1996; Sandberger p. 22, 2356; Seibert p. 2716; Braune p. 3094), namely that an act which is committed at the order of the Head of the State cannot be contrary to law but must be lawful and that therefore such an act cannot be an injustice (transcript p. 911-12 German, p. 897-98 English). As I have already emphasized, Naumann was a soldier and as such, as he has repeatedly asserted, considered himself obliged to obey the order because of the obedience he owed his Supreme War Lord at that time by virtue of his oath (transcript p. 866, 881, 898, 910 German, p. 856, 870, 886, 896 English). The circumstance that he attributed to the order the force of law and therefore did not regard it as an injustice cannot be taken to mean that he approved of it.
Any other interpretation of Naumann's statement than this would not only be contrary to the meaning and contents of his statements but would even be in opposition to them. The question whether the extenuating clause of Provision 4b of the Control Council Law is applicable will furthermore depend on how Naumann would have acted if this order had not existed. Here, too, it must be stated without hesitation on the basis of the previous arguments that Naumann would never have adopted on his own initiative such measures as were commanded by the order. The best proof for this is Naumann's conduct in Holland, where Naumann was sent on detached service in August 1943 as Commander of the Security Police and the SD. This comparison is of great significance for the reason that Holland, just like the area of Einsatzgruppe B in Russia, was territory occupied by Germany. There were Jews living in Holland too. What were Naumann's relations with the Jews in Holland?
Court No. II, Case No. IX.
and made no secret of this attitude towards NAUMANN, declared in lieu of an oath that she repeatedly intervened with NAUMANN in favor of Jews from among her acquaintances and succeeded by this in bringing in about that for instance Fral LEMBRUGGEN, Liesel HIJMANS, and Dr. FRENSDORF were discharged from the concentration camp and/or from prison. Frau van der SCHALK furthermore testified that NAUMANN was of a pronounced leniency towards Jews and that it was because of this indulgence that he was again transferred from Holland. (NAUMANN Doc. No. 6, Exh. 5, Vol. I, P. 5). Frau LEMBRUGGEN herself declared in a further affidavit that she owed her discharge from the concentration camp to NAUMANN (NAUMANN Doc. No. 8, Exh. 7, Vol. I, P. 8). affidavit by BENDELER, likewise a Dutchman, who stated that he owed to NAUMANN his discharge from the Vught Concentration Camp to which he had been committed because he had protected Jews (NAUMANN Doc. No. 11, Vol. II, P. 13). This attitude of NAUMANN clearly shows that in his heart he did not agree with the Fuehrer Order. But this attitude shows particularly that NAUMANN would never have issued orders against Jews on his own initiative, as it was made a duty by the Fuehrer Order. A contradictory statement was, it is true, made by RAUTER, the former Higher SS and Police Leader in Holland, who is still being held in custody in Holland because of war crimes committed during the time of occupation. (Doc. No. 5771, Exh. 236, Vol. V B . P. 149). This statement is, however, of no probative value. Apart from the fact that it is not regularly sworn to, it was made by a person who is himself called to account for measures against Jews and therefore endeavours to clear himself of this responsibility as far as possible.
But also in other respects NAUMANN's attitude towards the Dutch population was irreproachable. He always endeavoured, even in so far as this was not within his jurisdiction, to alleviate the fate which had befallen the Dutch population by the occupation. This is proven by Court No. II, Case No. IX.
numerous other affidavits from among the Dutch population. Particularly characteristic are the statements made by the representatives of the Dutch Red Cross in The Hague (NAUMANN Doc. No. 9 and 10, Vol. II, pages 9 and 11), who, as stated by themselves, had been opponents of National Socialism. They declared unanimously that NAUMANN had made it possible that the Dutch political prisoners in the concentration camps and in the prisons could be cared for by the Red Cross and that great quantities of foodstuffs could be supplied to them. In addition to this, NAUMANN threatened the guards with heavy punishment in the event of their appropriating such charitable gifts, as the witnesses von GENNEPP and van OVEREEM declared in agreement with the witnesses LAGES (NAUMANN Doc. No. 23, Vol. IV, P. 44) and WOELK (NAUMANN Doc. No. 24, Vol. IV, P. 46), NAUMANN effected, in order to alleviate the fate of the Dutch prisoners, although this did not come within his jurisdiction either, the improvement of the hospital facilities in the Vught concentration camp and made the erection of a new hospital in the Aamersfoort transit camp possible (NAUMANN Doc. No. 21 and 22, Volume IV, Pages 40 and 42). It is particularly to be emphasized that the discharge of 150 hostages was attained by the intervention of NAUMANN (see affidavits by van GENNEPP and van OVEREEM, NAUMANN Doc. 21 and 22, Vol. IV, Pages 40 and 42) and by van der SCHALK (NAUMANN Doc. No. 7, Exh. 6, Vol. I, P. 7). NAUMANN instigated and carried through the screening of the political prisoners in Holland so that a great number of prisoners whose guilt was not incontestably established were released from custody. (See affidavits by LAGES, NAUMANN Doc. No. 23, Vol. IV, P. 44) and by WOELK (NAUMANN Doc. 25, Vol. IV, P. 47). Frau van der SCHALK testified that the list of Dutchmen, for whom she successfully intervened with NAUMANN, was endless. She asserted that NAUMANN had done much good in Holland and even went so far that he endangered himself very much (NAUMANN Doc. No. 6, Exh. Vol. I, P. 5). Also the Dutchman Dr. FREDERIKS, the former Secretary General in the Dutch Home Ministry, testified that NAUMANN showed great obligingness, Upon his remonstrances he succeeded Court No. II, Case No. IX.
with NAUMANN's assistance in saving four Dutchmen who had already been sentenced to death and that some of a number of arrested Mayors were released from custody, and that pending proceedings against some of them were quashed. (Doc. NAUMANN No. 12, Vol. II P. 14) Particularly worth mentioning is the fact that NAUMANN brought about the punishment of the Commandant of the Wught Concentration Camp, GRUENEWALD, after having been informed by a man of confidence that 10 persons had died as a result, of his punishment measures, even though the administration of the concentration camps did not come within his jurisdiction. (See affidavits by van OVEREEM and van GENNEPP, NAUMANN Doc. No. 9 and 10, Vol. II, Pages 9 and 11, by LAGES, NAUMANN Doc. No. 23, Vol. IV, P. 44).
The incidents mentioned in the rebuttal document No. 5771, Exh. 236, Vol. V B, P. 149 are not suitable to question the validity of these testimonies. The action "Silbertanne" (Silver-fir") which is mentioned in the document has not started by NAUMANN, as is clearly shown by the depositions of WOELK and LAGES in the document, but by RAUTER. It can well be understood that RAUTER endeavours to clear himself of the responsibility for this, since he has to answer for this measure before a Dutch court. The numerous proofs for the irreproachable attitude of NAUMANN from Dutch circles show already that RAUTER's statements concerning the action "Silbertanne" cannot be correct. It is not only improbable, but even impossible that these Dutchmen would today make statements in favor of NAUMANN, if NAUMANN had not behaved in the manner they testified. The number of statements from among the Dutchmen could have been increased at will, if their procurement from abroad had not met difficulties. shows that he is not the brutal man the Prosecution tries to describe him. It especially shows that it was solely and wholly due to the existence of the Fuehrer Order that NAUMANN had to tolerate the execution of Jews in Russia. Should the opinion of the Prosecution be correct, then there would not have been any reason for NAUMANN to behave in Court No. II, Case No. IX.
Holland in another way than in Russia.
In Count 3) of the Indictment NAUMANN was furthermore charged with membership in criminal organizations, more precisely in the SS and the SD. must exist in order to justify a conviction because of membership in a criminal organization. I now wish to anticipate this result and to examine on the basis of this result whether a conviction of NAUMANN because of this is justified. According to the verdict of the International Military Tribunal the following would be required for this: 1) NAUMANN must have supported some criminal aims or other of the SS or the SD by co-operation with other members. 2) He must have had knowledge of criminal actions of these organizations. 3) The membership must have been on a voluntary basis. the decision of these three questions.
NAUMANN did not belong to the General SS after that date (Records p. 841 of the German, p. 834 of the English text). He was rather a member of the Waffen SS during the period from 29 April 1940 until 15 March 1941. This membership, however, was not a voluntary one, it was based on the contrary on a legal regulation, namely the Armed Forces Law (Records p. 841 of the German, p. 834 of the English text). the 1 September 1939. By such a way of acting he would have incurred most severe punishment. therefore be no justification for a conviction because of membership in a criminal organization. Reich Main Security Office after the 1 September 1939, as he conclusively Court No. II, Case No. IX.