the affidavit of Erwin Lahousen with the allegation that Tartars from the Crimea were segregated from prisoner of war camps and subjected to special treatment. I pointed already to the probative value of this document. Lahousen pretends to have pointed to such a case in summer 1941, whereas it has been ascertained that the Einsatzgruppen received the segregation order as late as November 1941. Beyond that, the document does not say when and where that segregation or special treatment is alleged to have taken place. It cannot possibly have occurred in the Crimea in summer 1941, for the Crimea was conquered only by the end of October 1941. Thus, no special treatment could have been employed of a kind Lahousen was able to discuss in a conference at the OKW headquarters in Berlin as early as summer 1941. This statement does not explain in what sector of a length of 2000 kilometers of the Eastern front that segregation might have occured. Thus, it cannot incriminate my client. I believe, the documents presented by the Prosecution as well as the testimonies of my client, of Seibert, Braune, and Schubert have shown sufficiently clearly the treatment the Tartars of the Crimea received by the Einsatzgruppe D. It ought to be obvious to everyone that an Einsatzgruppe and Einsatzkommando which recruited 10,000 Tartar volunteers for the fight against Bolshevism , which organize 16 voluntary Tartar Self-Defense companies, arming and training them for the fight against their own partisans, do not sort out Tartars from prisoner of war camps and shoot them. This allegation of the Prosecution is too absurd to be worth refuting.
Insane Persons. Furthermore, the Prosecution charges my client with having taken part in the euthanasia program and quotes as an evidence the operational situation report of 23 March 1942, according to which in the area to the south of Karasubasar more that 800 gypsies and insane people were shot. Apart from that it draws the attention to the execution of an insane person by the name of Romanenko by the Einsatzkommando 11 a in September 1941. stand: incriminate him, since he had gone on leave into the Reich as early as the beginning of March, together with the defendant Braune, as stated repeatedly by the Prosecution itself, so that he was not in the Crimea at all at that time. Ohlendorf stated at the witness stand:
"The report to this operational situation report refers to a period in which I myself was not in the Crimea. Nevertheless I am in a position to state firmly that no executions by shooting of insane people were carried out by my Kommandos. I had expressly forbidden this, and repeatedly issued now prohibitions for the reason that the army had on various occasions approached us with the request to shoot insane people. For this reason alone it can be ruled out that that report refers to the actions of one of my Kommandos. Incidentally, I regard this report as a false statement, as the area "to the south of Karasubasar" means woods and clay-hut where there were neither any large size villages nor asylums for insane persons".
To the Remanenko case the following nay be stated: The Prosecution Document, a letter of the Sonderkommando 11a of 10 September 1941, shows that the Commander-in-Chief of the Army had personally ordered to hand Romanenko over to Sonderkommando 11a, adding that he desired an exemplary punishment -- if possible a public execution by hanging."
executed as an insane person, who had been placed as often as three times in an asylum, for hereditary biological reasons. The letter does not show to whom it was addressed, whether or not it came to Ohlendorf's knowledge, just as the whole case. Ohlendorf said on the witness st and: directly interrogated, under oath:
"I do not know whether or not I ever saw the report. since the Commander-in-Chief had given the order direct to this commando." document in view of these circumstances. property, founding it on the confiscation of money, valuables and other property of the persons executed. done out of any private interest. On the contrary, evidence has shown that the Einsatzkommandos registered the confiscated objects in an orderly way and remitted them through the Einsatzgruppen, or directly to the Reichsbank, or the Reich Ministry of Finance, that is to the German Reich. Objects of daily use were handed over by request of the Wehrmacht to be used for war essential purposes or for the interests of the occupation, or were turned over the the representative of the National Socialist People's Welfare Organization in the Staff of the Army, in an orderly way. relating to the seizure and confiscation of the property of persons hostile to the state, which had been extended to the occupied Eastern territories. If the property of the executed persons had not been seized and confiscated, it would have become unclaimed property, or would have devolved to the Russian state, so that it would have fallen to the share of the occupation power even by virtue of the general laws of war.
It would hardly be juristically tenable to subsume such an incident under the notion of spoliation. happening in the Soviet Union, means to ignore the facts of history in view of the fact that e.g., with regard to more than 10 millions of Germans expelled from the East, the afore-mentioned "Land of the Dead", it says:
"....and yet those people expelled from Eastern Germany and the frontier". acts of violence after the truce of arms.
atrocities have not been substantiated or proved by the Prosecution. Therefore, I need not go into details as far as those charges are concerned.
DR. ASCHENAUER: Your Honor, this would be a suitable occasion to take a recess.
THE PRESIDENT: Very well. The Tribunal will be in recess fifteen minutes.
(A recess was taken.)
in the Soviet Union, in as far as the activities of the Einsatzgruppen are included therein, would leave out important matters without taking into consideration the actual organizational connection, the incorporation of the Einsatzgruppen and Einsatzkommandos into the military machinery, the command situation connected with this, the power of command and the free latitude of command within thsi command situation. Only after these prerequisites have been taken into consideration can the acts of the defendants be avaluated. The contention in the indictment, that the Einsatzgruppen, with respect to command and organization, had already been set up in the spring of 1941, is correct. At that time the Fuehrer, considering the campaign against Russia, ordered the establishment of Einsatzgruppen to be organized by the Chief of the Security Police and SF in agreement with the Wehrmacht for use within the compas of the operating army units. Quatermaster General Wagner, who was acting for Keitel, negotiated with the Chief of the Security Police and the SD, Heydrich, about the form and nature of these now joint organizations (Transcript page 10, and page 5ff, of the indictment). A temporary result of these negotiations about the so-called "Barbarossa Decree " and a draft of the decree was submitted by the Prosecution as Document NOKW 256, Prosecution Exhibit No. 174. fundamentally new task for the operational area of the army? The Prosecution itself calls this task justified if it states in its opening statement:
"It was the task of the Einsatzgruppen to guarantee the political not directly under civil administration". (Page 11) This was not a new task.
This function (contrary to other armies) was up till that time taken care of by the German army itself. The Chief of the Security Police and SD, in order to enable the army to carry out this task, had so far provided the Wehrmacht with the necessary technical personnel, taken in particular from the criminal police.
With the help of this technical personnel as a skeleton staff the Army formed now units in the secret field police which were to ensure the political (police) security in the army area. as it had to be expected now that the enemy, namely, Russian Communism, would find allies in the rear areas, including the German home area; in the form of the illegal Communist cadres in these territories. Thus, the security of the immediate area of operation could not be separated from that of the rear and home area. The fight against the Communist acts of sabotage and terror was therefore to be carried cut in the same manner as it would be conducted by the Communists chiefs themselves, namely in accordance with a well-connected plan and in close observation of the entire area threatened by Communism. That alone explains the organization of the Einsatzgruppen and Einsatzkommandos by the Chief of the Security Police and SD who, as previously, provides these units with their technical personnel, with the reservation, however, that he be able, contrary to the former regulation, to give them technical instructions and require from them a regular reporting which makes a concentrated fight against Communism possible from a point in Central Germany. The fact that the Chief of the Security Police and SD, as the technically competent expert, organizes the Einsatzgruppen does not alter the fact that they are organized in support of the army, that they are attached to the army groups or armies and are not units under the command of the Chief of the Security Police and SD. It is not by accident that the Einsatzgruppen and Einsatzkommandos do not carry the secondary designation "Office of the Chief of the Security Police and SD", as it is otherwise customary with the authorities of the Chief of the Security Police and SD. Although Heydrich would have liked to make these units his own, he nevertheless had to consider the fact that his own personnel in these units represented only a minority, that closed units of the regular police and the Waffen-SS were strong components of the Einsatzgruppen and that neither the Waffen-SS, nor the regular police were willing to renounce the placing of the Einsatzgruppen and Einsatzkommandos under the command of the Commander in Chief of the army groups or armies.
and Einsatzkommandos had possibly been units of the Reich Security Main Office. Besides that, I refer in this connection to my statements concerning the situation as to the organization of the RSHA, which show that the RSHA itself was not a genuine agency or authority; consequently could net have its own branch organization. Nor has any proof been advanced that the Einsatzgruppen and Einsatzkommandos might have been the agencies, authorities or parts of offices IV or V, in other words of the Main Office Security Police or Office III, VI, or VII, which is the SD Main Office. Not even an attempt was made to prove such an allegation. Therefore the Einsatzgruppen and Einsatzkommandos have actually never been the authroties, agencies or parts of the security police or SD. already been established in several verdicts (compare, among ethers, the verdict against Pohl and others, page 21, the Einsatzgruppen, actually were military units of police character which, as it is asserted in the I.M.T. verdict (Nuernberg Verdict, page 104), were subordinated in front areas to the operational control of the permanent army commander. Since the Einsatzgruppen and Einsatzkommandos were only used in the operational areas of the army, it becomes evident that they actually were separately organized units to function within the compass of the operating army under the command and control of the supreme authority in this area namely, the commander in chief. Their sole particularly can be seen in the fact that, for the same reasons as mentioned above, they were also subordinated at the same time, as a matter of principle and in technical respect, to the power of directive of the Chief of the Security Police and the SD.
be given special emphasis because of the fact that the designation "Security Police and SD" is only used by the Commissioners of the Chief of the Security Police and the SD as a person, who as such was assigned in an advisory capacity to the staff of the commander in chief of the army group of army. The military units of the Einsatzgruppe were at the disposal of this commissioner in order to enable him to carry out the tasks of the army units in cooperation with those military, units which were assigned to the armies, corps and divisions, in each case in accordance with the orders of the army groups of the armies. Consequently, the Commissioner of the Chief of the Security Police and the SD was at the same time chief of the Einsatzgruppe.
If it is mentioned in the excerpt from the "Manual for General Staff Officers" -submitted in Document Book III Sandberger - that the G-2 of the army gives orders to the Gestapo then this is the simplest establishment for the tasks and the position of the Einsatzgruppen and Einsatzkommandos within the compass of the army organizations. They were auxiliary organizations of the G-2 machinery in those units. The defendant Ohlendorf, testifying as a witness in his own defense, has given a detailed explanation to this effect. The difficulties he described during the period of his activity with the 11th Army showed clearly that he was regarded as a subordinated battalion commander. The Prosecution has repeatedly brought forward (among others also in its opening statement) that Hitler himself informed the commanders in chief of the army groups and armies about all measures for the Russian campaign which he deemed necessary and in which the activities of the Einsatzgruppen were also included. The documents submitted have shown, and in this connection I especially refer to my Trial-Brief in which part of the Prosecution documents from Case 12 against the generals has been utilized, that just the particular Fuehrer order, about the killing of elements endangering the security of the Army, was given as a whole.
I repeat: which was given concerning the killing of elements endangering the a security of the Wehrmacht. the responsibility of the Army and received by the latter specific orders to this effect, but the very units of the army have carried out this order in the same way as the Einsatzgruppen.
defendant Ohlendorf, the Prosecution attempts to make it appear as though all orders for killings, in theactual areas, even in individual cases, were given by Himmler or Heydrich exclusively, while parallel to that the commanders in chief of the army groups or armies just arranged for the tactical employment of the Einsatzgruppen and Einsatzkommandos, this will not do the trick. The evidence has produced a different impression and nothing can conceal the fact that, whereever the defendant Ohlendorf has given a description of the issuing of the command and of the personal purging in the Soviet territories for reasons of security, he meant in this connection the initial fundamental issue of orders which, as is undisputed, were given to the Einsatzgruppen by way of Himmler andHeydrich. The very fact that, as the Prosecution asserts, the orders of purging were given directly to the Einsatzkommandos, according to Ohlendorf's testimony, shows this best and at no time during the entire evidence has a situation ever been discussed in which an Einsatzkommando of the Einsatzgruppe D had received an order through Heydrich for acting on its own initiative in carrying out the order of cleaning up a specific area. On the other hand it is correct, and that is what Ohlendorf meant with regard to such a statement of facts, that the announcement of the Fuehrer order in Pretsch in June 1941 which explicitly continued the order for killings, was given directly to the chiefs of the Einsatzkommandos. In so far as in the course of the evidence concrete orders for acting on their own initiative with respect to executions have been discussed, this rather concerned only those orders which were given to the Einsatzkommandos by the army. (Compare among others the case Simferopol and Romanenko). their organizational setup by stating as follows: Security Police and SD and provided with skilled personnel. However, they were organized in order to be subordinated to the army units in Carrying out their tasks.
During the period of their activity they were actually under the command of the commander-in-chief of the army groups or the armies, and in the case of the Einsatzkommandos, under the command of the armies, corps or divisions. The basic order for killing was given by the Fuehrer to the Einsatzgruppen by way of Himmler and Heydrich, but the army had the same order with the special directive to support the Einsatzgruppen and the Einsatzkommandos in carrying out this order. And this actually happened. Beyond this, however, it was the sole responsibility the commander-in-chief of the army, if, where, and when the basic order for killing waste be carried out by the Einsatzkommandos. Moreover, the command situation resulted in the fact that the Einsatzgruppen regularly received orders from the army units and carried then out, which includes the orders for massexecutions. The position of the chief of the Einsatzgruppen was not an independent one but it was part of the machinery of the army hierarchy and its rank was below the position of the G-2 or G-2/A0 of the army of army group. defendants, especially the defendant Ohlendorf in the machinery of the Army Units, the only thing that must be grasped is the "power", the "authority to give orders" and the "freedom of personal opinion" and therefore the actual responsibility of the defendant.
The defendant Ohlendorf was subject to a dual command. First to the basic order of the German Chief of State and Supreme Commander of the German Armed Forces, the so frequently mentioned Fuehrer Order given to him via Himmler and Heydrich. Additional and individual orders were received from the Commander in Chief of the Army to whose Staff he was assigned. He was a soldier, an Officer in the service rank of a Battalion Commander at the front in the war. Prosecution accuses him of having contributed to, contained the instruct ion to kill, so as to maintain security in his sphere of operations, the Jews, Gipsies, Communistic Functionaries and active Communists, as well as all persons who represented a danger to the security for German forces.
was given once and for all to the Chiefs of Einsatzgruppen and Kommando Chiefs in Pretsch and was not cancelled during the tine of Ohlendorf's Einsatz. Without, in this connection, going into the individual problems posed by this Order, the question of legality of such an Order with the authority of a law or its relation to International Law or Morality here, the only thing to be grasped is that Ohlendorf received it as a soldier in a subordinate position and with the knowledge that his highest Disciplinary Superiors Himmler and Heydrich were inexorably behind this Order. material, including the sketch of his career submitted by the Prosecution as a Document, that he did not get into this Order situation voluntarily, guiltily, frivelously, or for his own ends, but that he was sent to the Einsatzgruppe on Himmler's Order after having twice refused. It is all the more astonishing thatthe prosecution now in its final statement makes assertions against Otto Ohlendorf of which they know, according to the contents of their own presentation of evidence, that the pre-requisites, of th*se assertions do not apply to Ohlendorf. Referring to promotion regulations of Himmler for members of the Security Police and SD it reads in the above-mentioned place, on page 15a to 16, and I quote: "All Germans in this trial insist that they are drafted for service with the Einsatzgruppen and that they had no option other than to obey. It may be remarked most respectfully that all these defendants including Ohlendorf were highly trained Police Officers, who wanted to rise in the profession of their own choice. Therefore, there aversion to serve with the Einsatzgruppen which they have sworn on oath now, cannot be recognised as true where everyone was trying so eagerly to advance in the career he had chosen for himself."
prosecution that Ohlendorf prior to or at the time of the assignment in Russia was a "highly placed Police Officer". The career submitted by the Prosecution as a Document proves the contrary. So that he cannot have wished either to rise in this "profession of his choice". His profession at this time was undisputedly Business Manager of the Reich Group Trade.
the position of "possibility for advancement" through HIMMLER. It is just as undisputed that at this time he had no material income in the SD nor did he expect it.
If therefore from these arguments is to be gathered the "implied" consent or consent of OHLENDORF, inferred at the close of the letter of the Prosecution, to the activities of the Einsatzgruppen in question in this trial, then these arguments, to begin with, must prove the contrary since the opposite of what they state is an established fact. consequences, not even tacitly, the hearing of witnesses has shown unequivocally. OHLENDORF's statement that at the issuing of orders in Pretsch he protested loudly and clearly against the Fuehrer Order was confirmed by the defendant BLUME in Cross Examination by the Prosecution. The Prosecution has not disputed the fact either that in Nikolajew in October 1941 he tried personally with HIMMLER to undermine the execution of the Order. The defendants BRAUNE, SEIBERT and SCHUBERT have repeatedly demonstrated in the Cross Examination that 0, never agreed to the Fuehrer Order. OHLENDORF himself gave neither a general nor an individual order for killing nor over killed anyone himself.
And so controversy surrounds the "duty" of the defendant, which he in his position, as I have described above, had regarding actions of which his Einsatzgruppe is accused in this trial. It is to be examined whether on account of this "duty" as he performed it, according to legal and reasonable opinion he can be accused of "guilty patronage" as the Prosecution would like to impute at the end of their final statement. We have now won the ground to enable us to see how wide the general assertions of the Prosecution are of the reality of conditions with the Einsatzgruppen.
each of the defendants had a position of responsibility or a command post in an Extermination Unit. By virtue of this position the defendants, in this case OHLENDORF, had had at all time the competency to order executions independently. The defendants were bound by law if not by their consciences to refrain from such activities and in so far as they had had power, to prevent crimeson the part of those subordinate to them. It is a legal and moral duty to prevent the execution of innocent people, to limit it, and condemn it, a duty which all the defendants had obviously violated. The rank and position of these defendants had conferred the competency and the duty to exercise a control over their subordinates and they had violated this duty.
The "duty" of the defendant was to obey as a soldier to see to it that ordersgiven by his supreme superior and the undisputed supreme representative of his State, with their contents, were carried out, in doing which the inexorable will behind them was supposed to have been the motive of his own action.
"The"competency" of the defendant was to carry through this order with all available means. That alone was the extent of his scope in deciding and judging. Anyone who should state otherwise, struggles consciously or unconsciously against the reality of the situation. Carrying out this duty laid down and observance of this competency ordered could never be made the subject of an accusation directed against the defendant in his subordinate position.
What, then, has the defendant actually done? Has he actually reaped the consequences of his inner and outward attitude to the HITLER Order? in Document No. NO 5866 (Interrogation of Dr. Roman LOOS) submitted in their Document Book 5 D: In how far do possibilities exist for avoiding a military order in general.
This Document refers, it is true, to the possibility of avoiding, that one of the highest Officers with rank of Field Marshal or General is supposed to have. If however in spite of that I consider briefly the result of interrogation of Dr. Roman LOOS undertaken by the Prosecution through Herr RAPP then the witness says, in substance the following:
1.) Possibility, and I quote: "If the scrutiny (of the order) revealed that it concerned an order of an illegal and immoral character then the possibility existed to achieve the revocation or alteration of the order by the higher office by stating all considerations. If his point of view was not shared by his superiors the military leader was placed in a position either of being elevated to historical greatness by his refusal to comply with the order or else of becoming the instrument of a criminal clique by complying with the given order." I quote further: "He would have had the possibility to reject the order. The consequence would have been self- annihilation and indirectly a certain historical rise. It was obvious that for refusing a fundamental order he would have been tried by a Court or as we know today would have been sent to a concentration camp. But if someone after having recognized the immorality and illegality of an order, rejects, and takes the consequences upon himself, he is to be regarded as a hero from a historical point of view".
2.) Possibility - I quote: (p. 27).
"It is reasonable to expect from an Army Commander who solved the conflict in his favour by passing on the order recognized as illegal and immoral that he will at least do everything to cut down to a minimum the stringency, of the order thus restricting its disastrous consequences to a minimum".
I quote further: (p. 28).
"1.) Corresponding formulation of the executory orders, especially accurate definitions and exact limitations with regard to subordinate units.
"2.) Corresponding verbal instructions during official meetings or tours of inspection to the junior commanders who have to execute the order. In particular to inform subordinates confidentially about one's own interpretation of the order.
3.) Corresponding directives to the G-2 to supervise the execution of the order which was passed on, especially not to insist on its strict execution and to inform the subordinate G-2 of this.
4.) Report to the High Command of the Armed Forces.
a) References to previous unfavorable experiences after execution of the order, with the aim of achieving the revocation or amendment of the order.
b) Faked reports about measures taken.
A comparison between OHLENDORF's method of acting and the Prosecution's discussion shows that O. although he did not hold the rank of a Field Marshal or General but that of a Battalion Commander subordinated to the Army, did everything, after failing to achieve the revocation of the order in spite of his protest in Pretsch and his later attempt in Nikolajew, to exhaust the second possibility completely, without support of the Army or other authoritative circles. possibility. The defendant OHLENDORF did everything in his power to limit the effects of the orders issued to his Einsatzgruppe and the Einsatzkommandos under him. It has been established by his own statement and the statement of those co-defendants who worked in his Einsatzgruppe that O. issued supplementary orders the sole purpose of which was to limit the scope for judgment in interpretation of the fundamental orders for the Kommando chiefs and to exclude their extensive effect; thus he prevented by prohibiting the pogrom ordered, the wild and uncontrollable killing and ordered strictly that the killing arranged for might only be undertaken according to military principles in an orderly and con trolled manner.
He forbade all killings in fulfilment of the Fuehrer Order on foreign sovereign territory (Roumanian Sovereign Territory), (compare statements of BRAUNE, RUEHL, OHLENDORF), he saw to it that in the case of the Jewish Group comprising several thousands of people who had been driven by the Roumanians into German sovereign territory everything was done to get these people back to Roumanian territory on their way home. From the same motives he had agreed with his subordinates not to pick out Jewish children. His only partially successful effort to save the Carmanians and Crimtschaks too, the order to sort out the non-partisans in the case of the retaliatory action of the Army in Eupatoria and protect them against the shooting, prove likewise that OHLENDORF exhausted every possibility of limiting the scope of the Fuehrer Order. By supplementary orders concerning registration and transport he tried to curtail inso far aspossible and eliminate the mental and physical agencies and sufferings of the unfortunate victims; the prohibition of the undressing of the victim served the same purpose too. O. issued instructions to prevent all possibility of enrichment from the estates of these killed, so as to afford no incentive to killing. Also the directive to individual Kommandos to keep secret the number of executions reported to avoid the inciting of false ambition in other Kommandos, not to give rise to the impression that Einsatzgruppe D placed any value on the greatness of the reported numbers, served the sane end. filled the requirements of the Prosecution doing all in his power to prevent, limit and condemn the effect of the orders issued. In many respects even he exceeded his authority, took upon himself, as shown by HIMMLER's personal intervention in October, 1941, obviously limiting and delaying contravention of the orders given. OHLENDORF's activity as guilty, that is, intentional favoring of crimes I must leave to the court to decide.
At all events in considering his method of acting the fact must not be overlooked that all this interference on the part of OHLENDORF in the course of the events was not an activity which furthered the deeds but as demonstrated a restrictive activity which limited, delayed, and, insofar as possible, prevented the ffect of the actions ordered.
This kind of aiding and abetting is however in accordance with general legal principles not genuinely in the sense of a punishable action. This kind of activity refeals rather the distinct desire and clear intention to obstruct the course of the actions ordered in so far as that is possible. In this sense Ohlendorf's approach to Himmler himself in the end must be valuated too, when the latter inspected him in October 1941 in Nikolajew. He knew Himmler, and had heard scarcely an hour before his speech to all men assembled in which Himmler renewed the Fuehrer Order and ordered its strictest execution. Ohlendorf approached Himmler inspite of that. The fact that no answer was ever vouchsafed by Himmler was an indication of the dangerous way in which he had ventured forward and exposed himself. It is obvious that Ohlendorf's so doing had already exceeded the limits of his possibilities. Amendment of the Fuehrer Order was not within his power and still much less in his sphere of command. He was given no scope for judgment either, not to carry out this order. immediately clearly recognisable if one followed his activity as Head of Office III SD after he returned from the Einsatz. Here he was not in a military machine under military command but was relatively independent in his work, that is, the tactical situation within the German heirarchy made relatively independent action through circumvention of his highest superiors possible for him. In the chapter concerning Ohlendorf's membership of the SD I have adequately proved this fact. And with this his behavior, the attested inner attitude of Ohlendor and his behavior concerning the Fuehrer Order and the compulsory events of the Einsatzgruppe must always be compared. An unbiased consideration of Ohlendorf's behavior and activity during the Russian Einsatz can only result in showing that he acted from the same sentiment which characterized him both before and after the Russian campaign. accuses the defendants, I must now ask the Tribunal to listen for a few minutes to the consideration of the probative value of the Documents submitted by the Prosecution to support its accusations.