We shall discuss these principles in subsection a), in subsection b) will be shown the reasons why these principles apply to the case on trial. a) The International Principle of not Sentencing to Death a Defendant Compared with the other acknowledged principles of international extradition law (non-extradition of one's own national; reciprocity; speciality; non-extradition for political offenses; extradition only if the offense is punishable also by the laws of the state applied to; non-extradition if the offense cannot be prosecuted in concrete by the laws of the state applied to;), the principle of exclusion of the death penalty plays a corresponding part. This principle, regularly, becomes acute in the extradition relation between such states (applied to) which have no capital punishment, and those (applying) states the penal system of which provides for the death penalty. In cases of this kind, the system of inter-state extradition laws regularly and unmistakably shows the tendency of states in favor of abolition to refuse extradition or to make it dependent on the understanding that the applying state will not exact the death penalty. and agreements of European, as well as non-European states. Thus, Article 5 of the Swiss Extradition Law of 22 January 1892 determines:
"If the penal code of the applying state provides for the offense, for the commission of which extradition is requested, corporal punishment (this includes death), then extradition will be consented to only on condition that the punishment, eventually, is commuted to imprisonment or a fine." further yet, prohibiting extradition if the laws of the applying state are in concrete stricter about the offense in question than the terms of Dutch penal law.
on condition that the applying state, which, contrary to the one applied to, employs the death penalty, assumes the obligation not to pronounce it in the case in question. This, e.g., is the case in the BelgianRoumanian Extradition Treaty of 18 August 1880 (See Mertitz: International Legal Aid in Penal Cases (Internationale Rechtshilfe in Strafsachen) 897, Vol. II p. 48 Foot note No. 15); the same practice has always been applied by abolition-conscious Italy. Belgium, the classical land of extradition law, made corresponding reservations in particular in relation to its South-American treaty partners (Brazil, Peru, a.o.) In connection with this, the circumstance must be mentioned that, in analogous extension of this principle, in extradition law the tendency of any state, absolutely, prevails to refuse extradition if the extradited person faces a penalty or a kind of punishment unknown to the laws of the state applied to and obnoxious to its public opinion. Into thiscategory belongs the tendency not to extradite if the extradited faces eventually corporal punishment. In these cases, even countries not in favor of abolition tend to refuse extradition either altogether or to make it dependent on the condition that such punishment, distasteful to the ordr* publique of the state applied to, isnot inflicted. Thus, in discussing the German Extradition Law of 23 December 1929 in the Reichstag, a corresponding passus was not included in the law only for fear of invoking international entanglements by criticising foreign penal laws; yet, the Reichstag, in this respect, took the following resolutions:
"the Government of the Reich is to be requested to consider ment unusual in Germany will be inflicted."
These examples may suffice, For, they show already that there is in international extradition law a principle which has attained such little practical significance only due to the, up to now, small number of states favoring abolition, but the theoretical import of which is on equal standing with the other extradition principles: the principle of the prohitition of the death penalty in the relation of the abolitionist state to the non-abolitionist state.
b) The Application, to this Trial. of the Principle of theExclusion of the Death Penalty in International Legal Aid Relations. Here, it must be examined if and to what extent the principle established under a) also has validity for the proceedings before the American Military Tribunal, Since, here, it isnot a question of extradition proceedings the principles found in a) can be applied only in analogy; however, the analogous applicability of the afore-said principle to the subject-matter of the present case is a cogent necessity.
According to Art. I of the Law No. 10, the Moscow Declaration of 30 October 1943 "concerning responsibility of Hitler followers for atrocities committed" and the London Agreement of 8 August 1945 "concerning prosecution and punishment of war criminals" are an inseparable part of Law No. 10. This means that the regulations set down in the last paragraphs of the Moscow Declaration about the competency to sentence war criminals also apply to proceedings to Low No. 10; thereby, the following rules are established: 1. for crimes locally not determined the competency of the international military courts is indicated; 2. for locally determined crimes, primarily, the competency of national military courts is indicated.
The indictment shows the acts of the defendants to be "locally determined" in the sense of the Moscow Declaration: the acts the defendants are charged with took place, without exception, in the national territory of the Soviet Union. a court of the Soviet Union, which, by the Moscow Declaration, would have had to decide "according to the laws of these liberated countries". But since they were placed before an American Court, this results for the latter in certain limitations of decision* for the American court derives its competency not from their own primary rights, but from their being public administrators or trustees of the primarily touched Soviet interests.
One of these limitations is the Law of the Soviet Union of 20 May 1947, by which the defendant cannot be sentenced to death, but, at the most, to 25 years of penal detention. concrete is irrelevant for the judgment of the situation with regard to its material legality. For, in this case, too, the American court remains the trustee only of the state primarily entitled to inflict punishment. But it would be in contradiction to the promises of international law applying to such a public legal trusteeship if the American court, exercising jurisdiction in the concrete case only "by proxy", would inflict penalties the law of the primarily affected state has expressly abolished for analogous cases, to be sure, also in regard to war criminals. including the jurisdiction in the territories in Germany occupied by the Soviets.
In conclusion, therefore, it must be scertained: 1. Inasfar as the Law No. 10 represents itself as an International agreement between the signatory states, it has, to be sure, formally not been influenced by the Law of the USSR of 30 May 1947. But it must be examined if, due? to the no longer existing communis opinio of the signatory powers, the stipulation of Art. II subsection 3 a did not become materially irrelevant. This examination, being foremost a questio facti, is up to the court.
2. Independent of the decision on point 1 above, the applicability of Art II subsection 3 a of Law No. 10 in its character as internal law of the signatory states did, by acknowledged principles of international penal law, become inadmissible then, as the Soviet Union is the party primarily entitled to inflict punishment. In these cases, even a nonSoviet court may not pronounce the penalty of death provided for in Art, II subsection 3 a.
DR. ASCHENAUER: Your Honor, that is the end of the section, and it would be a suitable occasion to have the recess.
PRESIDENT: Very well. The Tribunal will be in recess 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed, Dr. Aschenauer.
DR. ASCHENAUER (ATTORNEY FOR THE DEFENDANT OHLENDORF): with membership in organizations, which the IMT has declared to be criminal: namely membership in the Schutzstaffel of the NSDAP (generally known as the "SS") and in the "Security Service of the Reichsfuehrer SS" (generally known as"SD"). judgment. Because he neither was (comp. IMT Judgm.) a member of the Allgemeine SS, nor the Waffen-SS or the SS-death head - units nor an SS-member within a Police Department, but rather he was an SS-Fuehrer, at last SS-Gruppenfuehrer in the "Security Service of the Reichsfuehrer-SS" (this is what was written on his membership card), that is member of the SS-formation SD.
This kind of SS-membership, however, is according to the IMT judgment treated as membership in the Security Service of the RFSS (gnerally known as the SD) not within the scope of the SS, but in the judgment against the SS it is in respect to this membership referred to the judgment against the Gestapo and the SD. I quote page 113 of the "Judgment of Nuernberg":
Court No. II, Case No.IX.
"Conclusions": "..........the Tribunal includes in the SS all persons who officially were accepted as members into the SS including the members of the General SS, the members of the Waffen-SS, the members of the SS-Deathhead units and the members of the various Police departments, "Then the judgment goes on to say: "The Tribunal does not include the so-called Reiter-SS. The Security Service of the Reichsfuehrer-SS will be dealt with in the judgment of the Tribunal against the Gestapo and the SD." tion or group within the SS for the purpose of the judgment by the IMT, especially in regard to the SD, is in harmony with the real situation. For after the SS became independent in 1934 there was no "general membership in the SS." No applicant was accepted generally into the SS, but the acceptance into the SS and the membership therein became cemented into a certain organization or group of the SS. The judgment on the declaration of criminal organizations or groups corresponds to this situation, by, in leaning on the legal institute of conspiracy, predicating the charge of membership in an organization upon the supporting membership to a certain perpetrator-organization or perpetratorgroup, namely conscious cooperation in a criminal group for criminal purposes (compare IMT-Transcript, page 16,503). that OHLENDORF belonged to an organization or to a group of the SS outside of the SD, I may in my comments on Count III of the indictment limit myself to OHLENDORF's membership in the SD. IMT judgment the SS special formation SD was not convicted as a whole. And in view of the goal of the indictment in the IMT Trial there would have been no room for that, like with any conspiracy indictment to obtain punishment for assistance in the crime, and according to the opinion of the judgment that "criminal organization" means essentually "cooperation for criminal purposes" (comp. official edition, Court No. II, Case No. IX.
Vol. I, p. 258). For the SS-formation SD was a purely summary designation for SS-members of certain branches of service, who were administered by this organization merely in personnel matters. The SS-formation SD itself neither was charged with any material tasks nor did it carry out any material work of its own. Also no SS-service was done in this formation. It was not even organized in units. Its members did not meet within the aegis of its organization. Therefore the members could not obtain a common opinion on objective purposes of the organization, much less combine for common purposes. This is the reason why actually it has now become a general practice with the Spruchkammern in the American as well as the British Zone to evaluate the larger number of members of the SS-Special formation SD (for instance members of the Kripo, Stapo) as mere wearers of uniform and to exonerate them of membership with the SS in spite of their membership in the SS by way of the SS-Special formation SD. of the Security Service of the Reichsfuehrer SS (commonly called SD) as membership in a criminal organization therefore, has been limited by the IMT in its judgment to the members of the Offices III, VI, and VII of the RSHA, although also from the RSHA the SD-members of the Offices I and II belonged to it. The SS-activity stated to be criminal membership in the SD, therefore, is according to the IMT judgment to be found in the work of theSD-Offices III, VI and VII. All other members of the SD count as uniform wearers.
The defendant OHLENDORF was honorary member of Office III (SDdomestic service) of the RSHA, the so-called Spheres of Life-Intelligence Service.
According to Article 10 of the Statute "the criminal character of the troup of organization is considered as proven and cannot be contested." of which the organizations were declared to be criminal, belongs Court No. II, Case No. IX.
however "that the guilt within the meaning of Criminal Law is a personal one and that mass punishments are to be avoided", "innocent persons should not be punished." (P. 96 "The Verdict of Nuernberg").
Furthermore, the following is to be taken into consideration:
"Since .... the declaration concerning the organizations and groups will determine the criminal character of their members, this declaration should except those who had no knowledge of the criminal aims oh actions of the (that means "of these") organizations, as well as those who were drafted into the organizations by the State, unless they participated personally in the actions which were declared to be criminal by Article 6 of the Statute. The mere fact of membership is not sufficient to make one subject to such declarations". (B. 96 "The Verdict of Nuernberg"). tioned actions must be crimes of which the defendant became aware as having been committed within the framework of the organization of the SD, or in which he participated within the framework of his organization - in this case the SD - Office III - that means, not actions which are considered as criminal and which were committed outside the SD or in which the defendant participated outside of his organization - in this Case the SD Office III. cause of his membership of theSD- Office III Reich Main Security Office - is incumbent on the Prosecution. The Military Tribunal II v. OSWALD POHL and others expressly stated in the opinion concerning the defendant SCHEIDE (official text of the Verdict, p. 95 ff.) that the Prosecution has to produce evidence which may be considered as being beyond every reasonable doubt. The "high" position of the defendant SCHEIDE alone would not be sufficient to constitute a suspicion of criminal knowledge sufficient for a conviction.
"Knowledge of the crime" must be proved. It is not sufficient that one "must have known" (carelessness). As far as it is a question Court No. II, Case No. IX.
of a compulsory membership in an organization, perpetration of or a sufficient form of participation in a war crime or a crime against humanity, within the framework of the organization, must be positively proved. According to the verdict on SCHEIDE in Case IV it must be incontestably proved that an accused person during his membership in an organization had had a positive knowledge of crimes committed in the framework of this organization, or, as far as he was a compulsory member, that he participated personally in criminal actions. According to this verdict it is, therefore, not sufficient that a defendant receives, at any time or place, outside of his organization which was declared to be criminal, knowledge of crimes against the laws of war and humanity committed by other organizations, or that he was himself guilty of War crimes or crimes against humanity. generally of membership in criminal organizations, more precisely the SS and the SD. In this Count 3 it only refers to the verdict of the IMT, according to which the SS and the SD were declared to be criminal organizations, and that the IMT frequently referred to this decision to the crimes with which the Einsatzgruppen are charged. Consequently the Prosecution considers it to be already a proof of criminal activity within the framework of the SS and SD, if the defendant is convicted of crimes against humanity during his activity with the Einsatzgruppen. That means, the Prosecution considers the Einsatzgruppen as parts or agencies of the SS or the SD. this in its description of the Einsatzgruppen as military units of a special kind, it nevertheless brings the SD into a connection with the Einsatzgruppen by declaring the SD in the Offices III, IV and VII of the Reich Main Security Office to be criminal. I shall make clear at another place of my plea that the Einsatzgruppen in fact were no agencies or parts of the Offices of the Reich Main Security Office.
Court No. II, Case No. IX.
or a group it will be sufficient for the pending trial to point to the fact that neither in the proceedings before the IMT nor in the indictment in Case IX was it alleged, stated, or much less proved that the Einsatzgruppen had been an organization or group of the SS. On the contrary, they were military units of a special kind, which were not intended to last. They were not formed by a voluntary union of a majority of persons, likewise their tasks and their aims were not established by unanimous agreement of their members. At the time of the formation of the Einsatzgruppen the members knew neither the aims nor the tasks. They were not asked either, nor did they give their consent, as to whether they wished to participate in the tasks of the Einsatzgruppen or not. The Einsatzgruppen were rather formed by a military order and the members were individually assigned by military orders. The exceptional temporary character of the Einsatzgruppen was so strongly marked that they were not even organized into an independent actual unit. Outside of a relative majority of conscripted civilians who had been drafted for labor, the Einsatzgruppen comprised detailed members of the Gestapo (Secret State Police), of the Criminal Police, of the SD, of the Regular Police, of the Waffen-SS and of the Armed Forces. The men detailed to the Einsatzgruppen wore the uniforms of their home organization (i.e. the regular and drafted members of the Regular Police wore the uniform of the Regular Police), the groups of the Regular Police even continued to exist within the framework of the Einsatzgruppen formally as complete units with their own equipment and administration, although their members were individually employed for all tasks of the Einsatzgruppen according to expediency and necessity. could have made them an organization or group within the meaning of the Nuernberg Statute (compare statement of the Chief Prosecutor JACKSON in the IMT Transcript p. 5187-88 and the confirmation by the English Chief Prosecutor, Transcript p. 5206.)
Court No. II, Case No. IX.
entail any kind of membership in the SS, nor did it constitute a new membership in a new organization or group.
Court No. II, Case No. IX.
the Prosecution takes as a point of departure the fact that Ohlendorf had been ordered against his will to the Einsatzgruppe D (See Pros. Doc. NO 2875 in Doc. Book of the Pros No. III.) That such an order by Himmler or Heydrich did not leave any alternative to the person concerned, and that a refusal to obey this order would have entailed severe punishment, is also acknowledged by the IMF. But, since the IMT tries to divest this irresistible coercion of its import by tracing it back to the voluntary membership as an offical in the Security Police or the SD, the representative of the Prosecution in Case IX, Mr. Walton, in cross-examining the defendant Ohlendorf also attempted to demonstrate this causal connection in the case of the defendant Ohlendorf, However, without success. the time of the Russian campaign, Ohlendorf had no employment connection with the SD. Neither was he draft-deferred for wartime employment in the SD. Rather, Ohlendorf had a mobilization order for the Reichsgruppe Trade, the organization by which he was employed (Sea doc. No. 54, Exh. No. 59 in Ohlendorf Doc. Bk. IV). This fact alone had, up to 1941, prevented his drafting into the army for which he was drafted originally. And only this retention by the Reich Group Commerce made his compulsory induction by the Reichsfuehrer-SS in 1941, possible. Mr, Walton asked: "Is it not a fact that if you had been a member of the SS and the SD before the war, you would have been inducted to some branch of the Armed Forces different from the SS and the SD"?
Answer:
"Unfortunately, I cannot decidethis theoretically, for, as I said before, I was draft-deferred for the Reich Group Commerce. However, very many persons were inducted into the Einsatz who were not members of the SS and who had nothing whatever to do with the SS, and who could be inducted just for the reason that, up to that date, they Court No. II, Case No. IX.
were in a position beyond the immediate reach of the Armed Forces, that is, for example, in protected enterprises". .....
And then, Mr. Walton, himself, asked:
"Then, it was due to your draft-deferment that you were not assigned to the Armed Forces, but to the SS and the SD units?" And Ohlendorf answered, in accord with the true state of affairs: "That is so." of the Reich Group Commerce and not as a full-time member of the SD. Like hundreds of others, he was taken away from civilian private employment. Furthermore, his honorary membership in the SD was, by his being ordered to Russia, not affected at all. Just like any other person inducted into the Einsatzgruppe from civilian life under compulsion by the state, he remained, during the time he was a member of the Einsatzgruppe in Russia, in his private employment relationship as an employee of the Reich Group Commerce and received from there his salary all the time he was with the Einsatz in Russia (See affidavit Dr. Franz Hayler in Suppl. Doc. Bk. Ohlendorf, Doc. No. 64, Exh. No. 65.). Ohlendorf's honorary position in the SD as Head of Office III, SD Interior Service of the RSHA was suspended. During this time he engaged in no activities whatever in the SD, rather, his membership was inactive (See affidavit Hoettel in IMT trial, Transcript p. 14504/5 and Ohlendorf's uncontradicted statement in the same instance, Transcript P. 1831-32.) I am citing from this statement:
"The fact that I commanded an Einsatzgruppe has no connection with my position in Office III, which was given me as a person and not as Head of Office III. I.e., as Head of an Einsatzgruppe I had an entirely new function and a position completely separated from my former position".
Ohlendorf's activity in Einsatzgruppe D must therefore be considered independent from his honorary affiliation with the SD, to say Court No. II, Case No. IX.
nothing of the circumstance that even before the war and at the time he was ordered to Einsatzgruppe D, he was no longer a voluntary member of the SD and had, already in 1938, given up his employment in the SD to remove himself from dependence on the SS and the SD. activity of Office III, SD Interior in the RSHA, and the activities of the Einsatzgruppen which can be charged as war crimes and crimes against humanity. Such a material connection has not even been alleged, much less been proved by the Prosecution. Such a connection is also in contradiction to the task of Office III SD-Interior of the RSHA, which was so aptly described in the C.I. Handbook Germany, published by Supreme Headquarters Allied Forces, Office of the Assistant Chief of Staff, G/2 Counter Intelligence Subdivision. It says therein under sub-section IV "The German Intelligence Service" as follows: "..... The SD within the Reich, RSHA Office III, with its local branch offices constitutes the Party news agency inside of Germany. It maintains for its purposes a network of news men for every sector of German life, ... drawn from all social strata and callings. The information supplied by them is worked into situation reports which the Regional District Offices then relay to the RSHA. These reports are extremely candid and give a complete picture of the state of mind and the atmosphere in Germany ..." their charge regarding Count 3, that Ohlendorf, within the SD Office III of the RSHA, had committed war crimes and crimes against humanity, or had known about such crimes in the sphere of the SD, one can ascertain that the Prosecution has made no attempt whatever to blame Ohlendorf of such facts to say nothing of proving them. the SD Main Office and of the Office III SD-Interior of the RSHA, which determined the tasks and activities of the Organization of the SD-Interior, offers no points of departure for criminal activities in Court No. II, Case No. IX.
the sense of Article 6 of the Statute. It was designed for consideration of political and criminal investigation of objective information material. Accordingly, neither Office III nor its regional substructure the SD-Sections, were connected, for example, with the opposite departments (KPD, SPD, Jews, etc.) or with police affairs (Sabotage, espionage, etc.). The organizations were, rather organized according to sectors of public life and, correspondingly were charged with the departments for Justice and Administration, Folkdom and Public Health, Culture, Science and Education and Economics. Furthermore, the Office III SD Interior of the RSHA had no executive power whatever and absolutely no aims and purposes requiring the practice or support of police executive measures, neither for their own Offices nor for any other Office. The Presiding Judge of this Tribunal, himself, ascertained this in the course of the cross-examination of the defendant Seibert in regard to his activity in Office III, in which Seibert headed one of the 4 Groups: (I am quoting from p. 2521 of the Transcript).
Pres. Judge: "Well, no, Dr. Gawlik, it is quite right that you show here that the work in this Office was entirely legal and correct . . . and further on - I quote Pres.
Judge: "That is absolutely right, Dr. Gawlik, but now that is settled. And if the Prosecution does not refute it then it is so, namely that his activity in this special Office does not include anything criminal . . ." of Office III differ in no respect in their character and their activity from Group III D in which the defendant Seibert worked. under the leadership of the defendant Ohlendorf? him, "How do the people concerned react to the measures of the National Court No. II, Case No. IX.
Socialist Reich and its leading organization, and what effect do these measures have on these people, actually or in the forseeable future, to gather suitable facts, opinions, moral and mental reaction by a network of reporters from every social sphere and all ways of life, and to transform them into reports. The resulting reports were evaluated and condensed, and published by Office III as "Reports from the Reich", appearing at first daily, later once a week, and made available to all the leading departments in the Party and State. They spheres of life. The intent and purpose of this reporting service were to replace the positive opposition, lacking in the Third Reich, and the healthy and positive public criticism necessary in a sound commonwealth. (See, among other, Affidavit Hans Fritzsche, Doc. Book I, Doc. No. 6, Exh. No. 28). For a better understanding of this activity I wish to refer to Ohlendorf's conception, which I shall present later of the National Socialist State, as Ohlendorf wanted to develop it through his work. In order to have at least a substitute for the missing public criticism about National-Socialist politics, Ohlendorf built up the SD-Interior Service in spite of the constant resistance and opposition of the influential hierarchy of the Third Reich. The numerous affidavits of his co-workers in SD-Interior and the recipients of the SD-Reports prove exactly what is said in the above mentioned C.I. Handbook: (Doc. Bk. I, Doc. No. 5, Dr. Gerhard Klopfer, 10, Dr. med.
Hans Ehlich, 11, Dr. Hans Roessner, 12, Dr. jur.
Erhard Maeding, 17, Dr. Heinrich Malz, 25, Dr. Justus Beyer, 27, Dr. Hans Roessner, Court No. II, Case No. IX.
Document Book IV Document No. 56, by Dr. med. Ehlich, " " 57, by Heinz Wanninger, as well as the testimony of the defendant Seibert about the work of the Group Economy, of Office III, Ohlendorf himself has given a detailed statement to this effect as a witness in his own defense.
of Ohlendorf was practically an illegal matter since he lacked any authorization of the competent authorities for this activity. He carried it out on his own responsibility. The SD, as the only information service of the Party, had been authorized by the Party only as its own information service. Bormann, the chief of the party chancellory, was right in actually accusing the SD-Interior that it was no longer doing any work in the fields of enemy intelligence and was dealing with questions which only concerned the individual party offices, and that it was becoming the "mouthpiece of defeatism". The SD-Interior under Ohlendorf's command, although an institution of the Party but in opposition to the chief of the Party Chancellory and even in opposition to the Reichsfuehrer SS to whom, in his capacity as the chief of Office III of the SD-Interior, Ohlendorf was subordinated in accordance with the table of organization, had developed into the vary opposite of what these offices expected, namely into the mouthpiece of the positive opposition. organizations evolved in the course of the war more and more to an actual, and partly very strong opposition, against the faulty development of National Socialism realized by Ohlendorf, and against the practice of National Socialism and its conspicuous leading personalities. It was only thanks to Ohlendorf's tactical skill and diligent conduct that he was able to remain in this state of opposition till the end of the regime, which not only was for the benefit of his own Court No. II, Case No. IX.
people but also for all the other nations and national groups within the territories occupied by Germany.
Let me quote nere only the most conspicuous proof for this contention: 1.) In Ohlendorf's efforts for anthroposophy the defense has quoted, as an example, the attempt made by Ohlendorf to sustain, in an absolutely tolerant manner, a spiritually manifold life in contrast to the onesided aspirations of Nazi ideologists; although he was opposed to the ideology of anthroposophy, the latter, having been persecuted during the time of the Nazi regime and finally outlawed, nevertheless found in Ohlendorf its best supporter and protector against all attempts by the offices of the NSDAP and the Nazi state to extermina this philosophy and all its institutions from public life. The affidavits of Dr. Elisabeth Klein and of Dr. Rudolf Hauschka give proof to this. Frau Dr. Klein confirms that Ohlendorf, with respect to the anthroposophical society and its institutions did not only show a tolerant attitude but also used his influence on behalf of the se institutions, although they were fanatically rejected by the highest Party leaders like Heydrich and Bormann. She furthermore confirms that Ohlendorf for that reason was opposed and isolated by a number of authorities. Dr. Hauschka confirms that, in anthroposophical circles, Ohlendorf had the reputation of a daring fighter against the Nazi cultural terror and that he used his influence on behalf of anthroposophy under very great risk for his own person without that in many cases the then persecuted persons had even suspected this. Frau Dr. Barlen eventually confirms, in rounding off this subject that a document from the files of the Reichsfuehrer-SS which came to her notice as late as during the days of collapse, contained an expression of strong distrust against Ohlendorf on the part of the Reichsfuehrer SS. 2.) The defendant Ohlendorf attempted twice to stop the Jewish policy of the Third Reich and steer it into an orderly course. The first cause was the elimination of the Jews from the economy with the climax of the so-called "crystal night" (Kristallnacht") and the following defamatory discrimination of the Jews (Yellow Star, etc.)