1 The jurisdiction exercised by military courts trying offenses against the laws of war has never been territorial. Sir Hartley Shawcross, the British prosecutor at the International Trial, pointed out that:
"The right of humanitarian intervention on behalf of the rights of man trampled upon by a State in a manner shocking the sense of mankind has long been considered to form part of the law of nations".2 German law professors too declared this in their writings.3 The jurisdictional power of every State extends to the punishment of offenses against the law of nations "by whomsoever and wheresoever committed".4 It is, therefore, wholly fitting for this Court to hear these charges of international crimes and to adjudge them in the name of civilization. committed Crimes against Humanity. The same acts we have declared under Count I as Crimes against Humanity are alleged under Count II as War Crimes, The same acts are, therefore, charged as separate and distinct offenses. In this there is no novelty. An assault punishable in itself may be part of the graver offense of robbery, and it is proper pleading to charge both of the crime. So here the killing of defenseless civilians during a war may be a war crime, but the same killings are part of another crime, a graver one if you will, genocide - or a Crime against Humanity. This is the distinction we make in our pleading. It is real and most significant. To avoid at the outset any possible misconception, let us point out the differences between the two offenses.
1. Ibid p. 206 2. Transcript p. 813 3. Bluntschi, "Das Moderne Volkerrecht der Civilisierten Staaten" 4. Wheaton, cited in Cowles, op cit.
supra p. 191 customs of war.
By their very nature they can effect only nationals of a belligerent and cannot be committed in time of peace. The Crime against Humanity is not so delimited. It is fundamentally different from the mere war crime in that it embraces systematic violations of fundamental human rights committed at any time against the nationals of any nation. They may occur during peace or in war. The animus or criminal intent is directed against the rights of all men, not merely the right of persons within a war zone. At a recent conference for the unification of penal law, the definition of crimes against humanity was a leading topic. There it was the Counselor of the Vatican who said:
"The essential and inalienable rights of man cannot vary in time and space. They cannot be interpreted and limited by the social conscience of a people or a particular epoch for they are essentially immutable and eternal. Any injury ....done with the intention of extermination, mutilation, or enslavement, against the life, freedom of opinion... the moral or physical integrity of the family.....or the dignity of the human being, by reason of his opinion, his race, caste, family or profession, is a crime against humanity."1 hostilities, may violate basic rights of man and simultaneously transgress the rules of warfare. That is the intrinsic nature of the offenses here charged. To call them war crimes only is to ignore their inspiration and their true character.
Control Council Law No. 10 clearly lists war crimes as offenses constituting violations of the laws and customs of war, and Crimes against Humanity as a distinct offense unrelated to war.2 The London Charter restricted the jurisdiction 1. Report of the VIIIth Conference for the Unification of Penal 2. Art. II, 1(b) and (c) of the International Military Tribunal to Crimes against Humanity connected with Crimes against Peace or War Crimes.
1 This restriction does not appear in the Control Council enactment, which recognizes that Crimes against Humanity are in international law, completely independent of either Crimes against Peace or War Crimes. To deny this independence would make the change devoid of meaning.2 In this case the crimes occurred while Germany was at war.
This is a coincidence of time. The plans for persecution and annihilation were rooted deep in Nazi ideology and would have been effected even had their agressions failed to erup in open conflict. This was shown by their actions in Germany itself, in Austria and in Czechoslovakia. 1. Charter of the IMT, Art. 6(c) 2. The opening statement by the Prosecution in Case No. 5, U.S.
v. Flick et al, pp. 56-73, contains a detailed exposition of which we have charged.
It accuses these defendants of atrocities and offenses, including persecutions on political, racial and religious grounds, murder, extermination, imprisonment and other inhumane acts. Each of these is recognized as a crime by Law No. 10. That murder and extermination violated the criminal laws of all civilized nations even the defendants will not be heard to deny. gave no warning to these accused that their attacks against ethnic, national, religious and political groups infringed the rights of manking? We do not refer to localized outbursts of hatred nor petty discriminations which unfortunately occur in the most civilized of states. When persecutions reach the scale of nationwide campaigns designed to make life intolerable for, or to exterminate large groups of people, law dare not remain silent. We must condemn the motive if we would affect the crime. To condemn an evil and ignore its cause is to invite its repetition. The Control Council simply re-asserted existing law when naming persecutions as an international offense. Germany itself had been their champion. In the Berlin Treaty of 1878, Germany declared that religious differences could not be used to exclude a person from his civil or political rights. Following the first World War, in the German-Polish Convention of 1922, Germany obtained the legal protection for her ethnic minorities throughout Poland. The German Government bound itself under German Law to guarantee the complete protection of the life and liberties of all inhabitants, without discrimination as to their birth, nationality, language, race or religion.1 Germany agreed that these were obligations of international 1. Reichsgesetzblatt, Part II, 1922, No. 10, dated 15 May 1922, Art.
COURT II-A CASE IX concern1 and were basic laws which could not be superseded by any official, order, or any other law. 2 In the Permanent Court of International Justice Germany obtained recognition of an guarantees by international Law of her minority rights in Poland. 3 Indeed, it was under the guise of protecting the rights of minorities that the Nazis Invaded Czechoslovakia. So mindful of their own rights; no callous of the rights of others. gave ample warning to the world. It should come as no surprise to these defendants that they may now be judged under international law for acts which were always known as crimes. Count Two of our Indictment accused these defendants of violations of the laws and customs of war. The acts particularized in Court One, in addition to constituting Crimes against Humanity also violated rules for the conduct of hostilities and are therefore charged as a distinct offense. The standards of conduct for an occupying Power were established by the Rules of war. They were obligated by international agreements to protect family honor and rights, to respect the person and property of non-combatants as well as their freedom of religion. Prisoners-of-war were to be treated as prescribed by humane codes adopted by all civilized nations. The evidence will disclose how the defendants in this case defied these laws, how unarmed civilians were methodically liquidated, how 1. Ibid - Art. 72 2. Ibid - Chap. I i. 3. Opinion No. 6 and 7. Permanent Court of International Justice - Series A, No. 6, p. 4-41, dated 25 August 1925;Series A, No, 7 p. 4-107, dated 25 May 1926.
COURT II-A CASE IX prisoners-of-war were casually Selected for extermination, and it will also show wholesale plunder and destruction devoid of all military necessity. All of these acts are war crimes as recognized in Law No. 10. declared that the SS, the Gestapo, and the SD were criminal organizations. In reaching their decisions the Court made frequent reference to the deeds of the Einsatzgruppen. These activities contributed largely to the Tribunal's finding that membership in the organizations named, constituted crime. We have charged that all of these defendants Were members of one or more of these criminal groups on or after 1 September 1939. Proof of such continuing membership supports conviction under Count Three of our Indictment. There will be little doubt that each one knew the criminal nature of the band he joined. If the law condemns any man for these participations none can bear greater guilt than the defendants in this case.
COURT II-A CASE IX how the Einsatzgruppen were organized and their ideological foundation in Nazi Germany. We have suggested that the chief significance of this case lies in the protection by law of fundamental human rights and we have described how those rights were systematically violated. We also seek here to hold a handful of men responsible for crimes they alone could not possibly have committed. What are the standards by which we test their guilt? the mass executions committed by their units. In those cases they are clearly responsible under standards known and accepted by all. In other cases it may not be shown that these defendants specifically ordered or directly participated in the crimes of their Kommandos. Here guilt is just as great. of his organization. We cannot believe that any member of a group engaged in murders by the thousands could fail to know its criminal intent. We do not undertake the burden of showing any defendant's foreknowledge of the precise contours of the crime committed. No where on earth does the law impose such a burden. command in an extermination unit. By virtue of his post he had the power to order executions. It is not conceivable that these grave deeds Were independent acts of misguided subordinates. They were bound by law, if not by conscience, to refrain from such activity. That they knew, no doubt, as well as all men know it. They COURT II-A CASE IX will not here deny their knowledge of the Lord's Commandment, 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 these in his control-these laws, declaratory of common morality rest lightly on the honorable soldier. He feels no restraint in the rule that old men, women and children shall be protected as far as military necessity permits. It is this duty legal and moral, to prevent, to mitigate, and to disavow the slaughter of innocents, that all the defendants flagrantly violated. The purpose of the laws of war to protect civilian populations and prisoners would largely be defeated if a commander could with impunity neglect to take reasonable measures for their protection. This was declared by the Supreme Court of the United States 1 and relied upon by Military Tribunal I in the case against German doctors. 2 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. that some word of explanation deges in as if to salve the conscience of the executioner. "So and so many persons were shot." the report will read "because they were too old and infirm to work." "this or that ghetto was liquidated, to prevent an epidemic," "so many children were shot, because they were mentally ill." 1. Application of Yamashita, 66 Supreme Court 340-347 2. Judgment of Military Tribunal, Case No. 1, p. 70.
Such lean tokens cannot exculpate these wrongs. The Euthanasia doctrine based on a Hitler order scorning pre-existing law spurred the annihilation program. Military Tribunal I, in discussing euthanasia laws stated:
"The Family of Nations is not obligated to give recognition to such legislation when it manifestly gives legality to plain murder and torture of defenseless and powerless human beings of other nations." 1 Law No. 10 specifically declares that certain acts are Crimes against Humanity "whether or not in violation of the internal law of the country where perpetrated."
The defendants here can seek no refuge in the Law. of a superior does not free him from responsibility for crime.
It may be considered in mitigation. This is the law we follow here, and is notinnovation to the men we charge. Even the German Military Code provides that:
"If the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefore. However, the obeying subordinates will share the punishment of the participant:
(1) If he has exceeded the order given to him or (2) It was within his knowledge that the order of his superior officer concerned an act by which it was intended to commit a civil or military crime or transgression."
2 1. Military Tribunal 1, Case No. 1, p. 50. 2. Reichsgesetzblatt 1926, No. 37, p. 278, Article 47, (cited in Jackson Opening). of helpless people constitued crime?
Moral teachings have not so decayed that reasonable men could think these wrongs were right. 2 million Jews were murdered by the Einsatzgruppen and other units of the Security Police.1 The defendants in the dock were the cruel executioners, whose terror wrote the blackest page in human history. Death was their tool and life their toy. If these men be immune, then law has lost its meaning and man must live in fear.
THE PRESIDENT: The Tribunal will now be in recess and reconvene at 11:20 for the purpose of hearing the proof to be presented by the Prosecution.
We will repeat what we said on arraignment day: That the Defense must he prepared to proceed immediately upon the termination of the presentation of proof by the Prosecution.
DR. ASCHENAUER: My name is Aschenauer, Defense Counsel for the Defendant Ohlendorf. already handed to the Tribunal on the 26th of September, 1947. Several Defense Counsel in Case 9 have already informed the Tribunal that the assumption on the part of the Tribunal, that the Defense compared to that working in other trials was better supplied with detail and that therefore no break was necessary, does not correspond to the facts. in which they stated that Prosecution material was available in Room 119, but unfortunately it transpired that nothing was available in that room. It was stated in this letter that Room 119 had been mixed up with 219, but even a search for material in Room 219 wasn't 1. Official Text p. 292.
particularly successful, since that room was locked. Apart from that, even after the first day, fifteen of the thirty volumes which had been made available had been collected again by the Prosecution, and finally it isn't fair to compel the Defense to go through thirty volumes in order to find some evidence. Finally, it is an impossible condition if more than twenty Defense Counsel can look at documents at the rate of only one copy at a time, dealing with various parts of the evidence. ment books have been available does not alter this fact. In every trial so far, it has been the custom for all Defense Counsel to receive Prosecution documents from the Prosecution before the completion of document books. In case IX only twelve Defense Counsel have received a small number before that certain date, and in that connection as we were concerned with incomplete extracts from documents, the Defense is all the more handicapped since the indictment, as was said, concerned purely a relatively short presentation of documents. Nor can the Defense refrain from stating to the Tribunal that only a short time ago some Defense Counsel took up their jobs, and added to this, that important witnesses are being abroad, or that their addresses were difficult to find, because their camps were changed frequently or are still changing. It must also be known that mail in Germany takes a long time and it must also be pointed out that translation of the opening statement take at least fourteen days, if the present difficulties of translation don't even make an even longer period necessary. The drafting of the opening statement, of course, can only be begun after the completion of submission of the Prosecution evidence, since this will go into the details. document books must be translated. In the Judges' Trial I sent my document books to the Translation Center on the 24th of July and the last document book was ready on the 6th of September, the first one on the 2nd of September.
days should be inserted between the completion of the Prosecution's presentation and the Defenses' opening statement; only in this way it is possible to guarantee a correctly conducted defense. would appear necessary that the Defense and the defendants each be given at least one copy of the document book, as was the custom in Case 6, and not, as was the case in this instance, one document book per Defense Counsel and Defendant.
29 September 1947_M_MSD 7&8_1_Gallagher (Frank)
THE PRESIDENT: So far as opening statements pre concerned, there is no reason why you should wait until the presentation of all the Prosecution's evidence before you begin to write your statement. You know what the defendants are charged with. There is no reason why you could not at this very instance, if you were called upon, proceed to write where you now are, and give your opening statement in the Ohlendorf defense. You know what he is charged with: the indictment is very specific, and you now heard the opening statement. Defense counsel are informed now that if they intend to present an opening statement, that they should proceed to write it immediately, and, so far as translations are concerned, if we can have them done in the way that mimeograph copies can be prepared, very well; if not, then the statments may be translated and read from the interpreters's booths. With regard to the documents. I should like to hear from the Prosecution as to just what has been given to the Defense, that we can make a ruling in accordance with the facts.
MR. FRENCZ: May it please, Your Honors: the Defense Counsel made a motion similar to this and submitted it in writing to the Tribunal. At this time the Prosecution replied in writing, and the Tribunal ordered in accordance with it a careful examination of both sides of the case. I do not care to go into the details of exactly which documents were delivered on which days inasmuch as I do not have receipts in my possession at this time. However, I would like to point out that the uniform rules of procedure laid down by all the Tribunals require only that defense counsel be given copies of documents to be introduced twenty-four hours before they are actually introduced. That is all that is required by the rules as laid down by the Tribunal.
THE TRIBUNAL: Does every defense counsel now have translated copies of these documents books on the bench?
MR. FERENCZ: Your Honor, on Friday afternoon I received signed receipts from the Defense Administrator showing that the Defense Administrator, who represents the defense counsel, had received copies 29 September 1947_M_MSD_7&8_2_Gallagher (Frank) of every single document we intend to use in this entire case.
Those documents are how arrayed in the document book in front of defense counsel. In addition to that which is much more, in a much longer time, than the rule required, we have given to the defense counsel twelve copies of every document we intend to use. These twelve copies were delivered as quickly as our translation branch could prepare them. I gave the translation branch several weeks ago a letter instructing them to give the defense counsel those copies, and they did deliver them, so that by last Friday or last Thursday, they had received advanced copies of ninety percent of our documents and by Friday they had then all which is much more than the rules require? I do not go into examination about what the Prosecution has given to the defense counsel.
DR. ASCHENAUER: Upon the statement by the representative of the Prosecution, I should like to draw attention to it that the Defense Administrator has received this material, that is possible, but he does not in any way represent us. The nine document books from which the Prosecution is reading were handed out to us on Friday evening, but it is out of the question that if the Prosecution is to read from them; that thereafter immediately after the opening statement one is able to represent one's client with regard to every individual document. The time for preparation is much too short.
THE PRESIDENT: Defense counsel must not believe that there is any intention on the part of the Prosecution, and certainly not on the part of the Tribunal to "ham-string" them in their adequate and complete presentationof the defdnse. What we want to avoid is unnecessary delay, and very often you approach a problem with the defeatest attitude, that you must have much more time than the situation really requires, for instance, with regard to witnesses. Now you have stated that the mail is slow, and much time be required for correspondance, and we can certainly understand that but there is no reason why with the immediate dispatch of correspondance for the purpose of obtaining witnesses who, enough witnesses can't be ready to proceed with the defense. After 29 September 1947_M_MSD_7&8_3_Gallagher (Frank) all, we have a great number of defendants, so that the one individual defendant need not wait until his case actually arrives before he begins to prepare his defense, he should begin immediately, I mena today, now.
DR. ASCHENAUER: Now may I bring the attention of the Tribunal that it is written the task of an adequate Defense to see that every defendant should be given the privilege to present his case in one piece, it is an impossibility for defense counsel to deal with his defense piece-meal;(one sentence missing because change of film.)
THE PRESIDENT: Do you now have copies of these defense books in German?
DR. ASCHENAUER: These document books have been handed over in nine volumes, and they are avilable, yes, Sir.
THE PRESIDENT: Yes, very well. The Prosecution will immediately proceed to introduce these in the record, and they then become proof, and subject to refutation. You will have as you now indicated you do have now the translation, and you will have amply time to read them and prepare your defense. Now with regard to the opening statements, I do not assume that you have any intention of making opining statements. Certainly they should not be unnecessarily long statements. It would appear to us that no opening statment for the defense should be longer than thirty minutes in duration. As there any one who feels they should have more time than that? It does not seem to me it would he necessary.
DR. ASCHENAUER: I believe that so far as I am concerned, half an hour will be enough. I am at least speaking so much now for the defendant than on behalf of the Defense. I am coming to the question of opening statements, it seems to me that the Prosecution today has touched upon a number of legal questions, which so far have never been mentioned before a Tribunal, with so much emphasis, and it seems necessary to me, therefore, that this speech be given to us as quickly as possible in the German language. Might I remind you, Mr. President, that in the Pohl case, President Toms took care that it was given to 29 September 1947_M_MSD_7&8_4_Gallagher (Frank) us immediately in the German language; if you look at these document books, have to come to the assumtpion that we must make our opening statements rather quickly.
We therefore should have to have this opening speech rather quickly, for this Tribunal, being legally trained, would no doubt agree with me, that the legal concepts can not be examined by hearing them, but exact reading is essential.
THE PRESIDENT: You need not labor on that point, I agree with you entirely. You should have a copy of this opening statement quickly. Mr. Ferencz, how soon may they have that translation?
MR. FERENCA: Your Honor, the German version of the opening statement is now being mimeographed, and they will certainly be available this afternoon.
THE PRESIDENT: Very well.
DR. BERGOLD: Only when we have got an examined it, will be have the possibility of making a decision regarding the length of time the opening statement will require to be read, and therefore, I beg the Tribunal to reserve a discussion on the length of these opening statements, at least, for today, until we have had the opportunity to examine the opening speech, and then to come to a decision how long we should need to reply to it individually.
THE PRESIDENT: You have concluded the discussion, We want you to have had an opportunity to read the opening statement, counsel. The Tribunal will be in recess for twenty minutes.
(recess)
THE MARSHAL: Persons in the courtroom please find your seats.
THE PRESIDENT: You may proceed, Mr. Ferencz.
MR. FERENCZ: May it please your Honors, inasmuch as this case will be based almost entirely upon official German documents, I would like at the outset to outline the procedure to be used for the introduction of these documents and to establish the authenticity of the documents to be presented. as expeditiously as possible and to read in court only those portions of the documents which are particularly significant. Each of your Honors should have before you a manila folder which is marked "Military Tribunal Case No. IX, Prosecution Document Book No. I." On the first page there is an index to the contents of the book. Immediately following this index there is a more detailed description of the documents and the order in which they will be presented. German copies of these document books were presented to the defense counsel three days ago, and advance copies of a large part of the documents were made available to the defense several weeks ago. Some of the documents to be used are lengthy and cover many subjects completely unrelated to the issues at bar. We have extracted for the document books only those portions which we have thought were in any way relevant in this case. Should our judgment have been faulty we shall gladly join defense counsel in correction of it. The proof in this case is quite free from subtlety, and I think we should quarrel little respecting the admitting of documents. have access to the complete document, and it is the complete document which will be offered as an exhibit.
In accordance with the procedure established in other military tribunals and with the permission of the court, the Prosecution will assume that a document is in fact admitted into the record if no objection is raised by the defense counsel at the time that the document is offered in evidence. As a document is offered in evidence the identification number of the document will be mentioned as well as the Prosecution exhibit number. A certified copy of the original document will be handed to the representative of the Secretary-General as the offer is made. These copies become the official exhibits and are subject to inspection by defense counsel at the time of the offer if they so desire. should be noted that they fall into three broad categories: one, affidavits; two, German documents which were processed for use before the International Military Tribunal; and three, German documents which were processed for use before military tribunals such as this one.
The Prosecution offers as Exhibit No. 1 a certificate by the Chief of Counsel for War Crimes showing the authority of certain persons to administer oaths and to attest those affidavits which will be offered in evidence before this Tribunal. The certificate will be found on Page 1 of the Document Book No. I. prepared for use before the International Military Tribunal was established by a certificate of Major Willian Coogan, It was introduced in that trial as United States Exhibit No. 1 and explained how the United States Army captured, assembled and preserved German documents, records and arehives, and how they were catalogued and identified for use in trial. I would now like to offer as Exhibit No. 2 the Coogan certificate.
It is found on Page 9 of Document No. I. tribunal are authenticated by a certificate of Mr. Fred Niebergall, Chief of the Document Control Branch. This supplies substantially the same information as the Coogan certificate. I offer the Niebergall certificate as Prosecution Exhibit No. 3. Page 14 of Document Book No. I reads as follows: "Therefore, I certify in my official capacity as herein above stated, that all documentary evidence relied upon by OCC is in the same condition as when captured by military forces under the command of the Supreme Commander, Allied Expeditionary Forces; that they have been translated by competent, qualified translators; that all photostatic copies are true and correct copies of the originals, and that they have been correctly filed, numbered and processed as above outlined." Signed, "Fred Niebergall". an almost complete set of detailed reports of Einsatzgruppen operations. These reports were called operational situation reports and were prepared in the following manner; The Einsatz units in the field were required to send regular reports to Berlin by mail and by radio describing their activities and giving their locations.
I offer Document NO-2716 as Prosecution's Exhibit No. 4.
DR. KOESSL: Dr. Koessl for the defendant Schubert. the reprint, at least my reprint, has several mistakes in it. I will make a decision after looking over the original.
THE PRESIDENT: How do you now know that there are mistakes in this document if you haven't seen the original?
DR. KOESSL: The mistakes are quite evident, for example, the Reich Chancillory. Already upon the first reading you can see that there are mistakes in it.
THE PRESIDENT: Suppose we do this. Suppose we accept the document and then when you nave checked your copy with the original you may come to the podium and indicate what you think are errors and what correction should be made, and they we shall adjust the document accordingly.
DR. KOESSL: Yes, sir. But at the same time I also object against NO-3055. That is the Schubert affidavit of the 24th of February, 1947. It will be submitted later on, but in this volume.
THE PRESIDENT: Suppose you make the objection at that time. It might be easier to rule on it then.
MR. FERENCZ: If your Honors please, there will be several typographical errors in these documents, as is inevitable when we have work of this caliber. We shall be very glad to correct such errors at any time they are pointed out to us.
DR. GAWLIK: Dr. Gawlik for the Defendant Naumann. defense documents that objections can be raised if there are any mistakes after looking at the original? At the moment we have to immediately compare the originals with the transcripts.
THE PRESIDENT: The door will be open at all times for corrections of any character.
MR. FERENCZ: In Document NO-2716, which is an affidavit of the Defendant Schubert, there is a description of the typical manner in which the Kommando leaders had to send reports to the group headquarters containing information as to the number of Russians and Jews executed, and I quote from Paragraph 7 of his affidavit found on Page 17 of Document Book I, Page 19 of the German copy.