This report obviously refers to the region of Rschew, a town which is also situated in the territory of the Sk 7a. are not limited only to the development area of the Sonderkommando 7a. But they are felt especially clearly in this part of the country which anyhow lacks in population, because it comprises a very considerable part of the population and before all practically all of the Jewish population. submitted excerpts from the reports of events had not started only when the Sonderkommando entered its development area. On the contrary it started already before the invasion by the German troops. This situation was essentially already in existence when the defendant STEIMLE arrived.
PRESIDENT: Dr. Mayer, would you want to suspend at this point? The Tribunal will be in recess 15 minutes.
( A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. MAYER (ATTORNEY FOR THE DEFENDANT STEIMLE): Your Honors, before I continue, I wouldlike to make a correction which I consider necessary on page 2oof the translation, line 16 from the bottom, there is a "not" missing, the word, "not"; this does meant to say, however, as in the translation, "we do claim". It says here, I think, "We do not claim." That is the 16th line from the bottom on page 2.
THE PRESIDENT: Very well.
DR. MAYER: May I continue then?
The PRESIDENT: Please do.
DR. MAYER: It is still more evident from these circumstances that he did not start with carrying out the Fuehrer Order. There existed on the one hand the partisan danger, overshadowing everything. It was so great that the most vital interests of the military would have suffered damage, if this danger had just been ignored. On the other hand the men of the Sonderkommando 7a would have to waste their small forces in exhaustive searches for the Jewish part of the population, a task which would not have stood up in any way to what was demanded from them under the given conditions. need to carry out the Fuehrer Order. Beyond that, they have shown that it would have even been senseless to postpone the task of combatting the partisans for no other reason than to carry out the Fuehrer Order. The proceedings up to now have not established in any way that the Fuehrer Order would have had to be carried out first and under all circumstances. 7 a under the command of the defendant Steimle. The prosecution, it is true, charges him with having killed 272 Jews and Jewesses, and in evidence of this fact they have submitted the incident report No. 124 of 25 October 1941, Document No. NO-3160 , Exh. No. 65. There can be no doubt that this evidence is inconclusive.
Firstly, it must be stated from a point of view of form that the Sonderkommando 7 a is nowhere explicitly mentioned as being the unit which carried out the execution of the said number of Jews and Jewesses. It was only a deduction which led to the assumption that the SK 7a was involved and the includiveness of this deduction is adversely affected by the fact that the data concerning localities given in these incident reports cannot always be regarded as completely reliable. This is definitely established by the fact that there is neither a locality called Sadrudub, nor one called Belowschtschina within the area covered by the Sonderkommando 7 a. I refer in this connection to Doc. Steinle No. 16, Exh. No.15, Doc. Steimle No. 17 Exh. No. 16, and to Doc. Steimle No. 15, Exh. No. 14. These records show that a locality called Sadrudub does not exist at all, for, if it existed, one ought to be able to find it, in view of the ending "dub", which can only designate a town. Apart from that, the expression Sadrudub in one word is impossible in the Russian language. Furthermore, the same documents which I mentioned before show that the designation Sadrudub is abviously a mutilation of the word Starodub. Starodub is a term situated in what was then the area covered by the Sonderkommando 7b. Document Steimle No. 32, exhibit No. 31, page 80 of the English and German document book No. I. As is shown in particular by document Steimle No. 16, page 16 the village of Belowschtschine is in the immediate neighborhood of the town of Starodub, and that is the place where the Jews - obviously those from the town of Starodub in the area covered by the SK 7b - were supposed to set up a ghetto. The fact that the killing of the 272 Jews and Jewesses took place in the area covered by the SK 7b, i.e. near Starodub and Belowschtschina, is further confirmed by the incident report of 26 October 1941, prosecution exhibit 63. On page 2 of the original of this record it is reported that the Sonderkommando 7b secured 46,000 Rubol of cash which had been "the property of a number of liquidated Jews". There is no report to this effect from the SK 7a, not only during this period, but at no other time. In spite of the fact that the SK 7 a is again and again mentioned in the report of events between the 10 Sept, and 20 December 1941, and this always in connection with the combatting of partisans, there is never a report to the effect that the Sonderkommando 7a had secured Jewish money or other valuable subsequent toa possible liquidation of Jews.
Beyond this, the sane afore-mentioned document shows that according to the reported increase in the total figure of shootings carried out by Sonderkommando 7a and Sonderkommando 7b, the shooting of the 272 Jews and Jewesses must be placed to the account of Sonderkommando 7b. The report of events No. 108 of 9 October 1941, prosecution document No. 60, gives a total figure of shootings carried by the Sonderkommando 7a amounting to 1252 and a total figure of shootings carried out by Sonderkommando 7b amounting to 1544. This refers to the position as per 28 Sept. 1941. The incident report No. 125 of 26 October 1941 prosecution exhibit No. 63, gives a total figure of 1344 in respect of Sonderkommando 7a and a figure of 1822 in respect of Sonderkommando 7b. Thus the figure of shootings carried out by Sonderkommando 7a has only increased by 92 during the period in question, in which the incident occured with which the defendant Steimle has been charged. The increase however, should have amounted to exactly 372, as in the meantime only 2 collective shootings comprising about 100 persons executed were reported, and the Jews of Sadrudub would have to be added on to this. According to the records contained in the documents the increase in the figure of shootings carried out by SK 7b amounts to 278, and it is important to note in this connection that during this same period between the last report giving the figure of 1544 and the just mentioned report giving the figure of 1822 shootings, no executions at all are reported in respect to Sonderkommando 7b. These reported figures in connection with the report concerning the Rubel amounts secured by Sonderkommando 7b, and in connection with the geographical and linguistic argument pointing to the town of Starodub, make it completely clear that the reported shooting of 272 Jews and Jewesses with which the defendant Steimle has been charged was not carried out by Sonderkommando 7a but definitely by Sonderkommando 7b. In connection with the same document, i.e. the report of events No. 124, prosecution exhibit No. 65, the defendant Steimle is further charged with the shooting of 63 communists officials NKWD-agents and agitators.
The defendant has pointed out on the witness stand that this total figure must comprise various operations against partisans, as the result of which the fact was established that some of the partisans arrested in the course of each operation were party officials, NKWD agents and agitators. Previous evidence has been submitted for the fact t that the leaders of partisans were to be found on principle among this group of persons which constituted the backbone of the partisan movement.
The purpose and aim of their operations behind the German lines was solely to keep the idea of partisan fighting alive among the population, and to carry out the organization of the partisan movement. In view of the situation in the area covered by the Sonderkommando 7a, which has also been described in detail, it is obvious that here, too, the persons in question were such as had been arrested in the course of operations against partisans.
The document No. NO-2825, Exhibit No. 95, of 14 Nov, 1941 mentions the execution of 173 persons by the Sonderkommando 7a, without giving the reasons for which the execution was carried out. The afore-mentioned prosecution document contains a number of execution figures with respect to other Einsatzkommandos and Sonderkommandos; these figures refer almost exclusively to Jews. In view of the situation with Sonderkommando 7a which has been mentioned several times, the indisputable conclusion must be drawn that the 173 persons in question must have been partisans. There is no reason why these executed persons should not have been designated as Jews in this case as well if the SK 7a had carried out such an execution. The operations against Jews mentioned in this report can be easily placed to the account of the competent Einsatz - and Sonderkommandos on the basis of the names of localities given. The defendant Steimle expoinded this point in detail on the witness stand, on the basis of the garrison reports contained in the documents. In this connection I refer to page 2008 and 2009 of the English transcript. Therefore, these 173 executions can on no account be charged to the defendant as acts committed on the basis of the Fuehrer order.
The prosecution also links the record NO_2324, prosecution exhibit No. 62, with defendant Steimle's responsibility. This evidence exhibit reports the shooting of a considerable number of Jews, Jewish women and children. The document is dated 19 December 1941, i.e. refers to a period when the defendant Steimle had already gone to Germany on leave. But this is not the only reason why he is not responsible for the executions of Jews reported therein, another reason is that in this report the localities of the executions and mostly also the Einsatz- or Sonderkommandos concerned, are very carefully stated. The SK 7a is nowhere mentioned, on the basis of the available incident reports every locality of execution can be easily placed as a station covered by a certain Sonder- or Einsatzkommando. In no case is a locality mentioned which by means of this procedure could be placed as a station covered by Einsatzkommando 7a. The defendant Steimle stressed this point on the witness stand, and the defendant Naumann, in reply to my detailed questioning, also stated in his testimony, that none of the localities mentioned here were situated in the area covered by SK 7a. Here again it is clearly shown that the Sonderkommando 7a, under the command of the defendant Steimle, is not mentioned in connection with shootings of Jews. This fact features in all incident reports and therefore it cannot possibly be a matter of coincidence. The repeated statements of the defendant on the witness stand, according to which he never carried out operations against Jews with the help of his commando, are thus once more confirmed and emphasized, quite apart from the other documentary evidence submitted by the defense. In this connection it must be stressed that the defendant did not only adopt this point of view when the proceedings against him were instituted he expressed it from the very start, as is shown, for instance, by his affidavit made in 1945, Doc. No. NO-3842, Prosecution Exh. No. 119.
By reason of Prosecution Exh. No. 60, Doc. No. NO-3156, that is the incident report No. 108 of 9 October 1941, the defendant is further charged with the execution of Communists youngsters who had been arrested while trying to blow up a bridge.
Incidentally it should be mentioned that this same report, as is easily recognisable, appears twice within the same record. I have explained before that the term "Youngsters" in the incident reports comprises the age groups from 16 to 22, and it is superfluous to point out that it was the intention of these Communists to commit an act which seriously endangered the safety of the troops and which was c carried out within the framework of the partisan movement. It seems out of the question therefore, that the defendant Steimle should be incriminated on this account. ing to submit evidence for the fact that the defendant Steimle was in charge of the Kommando 7a up to 13 February 1942 must be regarded as a failure. The period in which he led the Sonderkommando 7a only lasted from the middle of September 1941 to the middle of December 1941. This fact has been proved by the defense. The prosecution does not appear to have any doubts concerning the date on which he started his activities with the Sonderkommando 7a. Only as a precautionary measure do I refer in this connection to Document Steimle No. 13, Exhibit No. 13, page 47, of the German and English Document Book Steimle No. I. The liaison officer of the Sonderkommando 7a attached to A.O.K. 9, confirms explicitly in this document that the first half of September 1941, when the latter took over the Sonderkommando. As far as the termination of Steimle's command is concerned, his statement on the witness stand is confirmed by document Steimle No. 11, Exhibit No. 11, and, in particular, by Document Steile No. 12, exhibit No. 12. The driver of the defendant Steimle, Walter Roller, served with the Sonderkommando 7a until January 1944 and explicitly states in his affidavit that the defendant Steimle arrived in Stuttgart about 20 December 1941 and did not return to the Sonderkommando 7a. In this connection, too, it must be emphasized that the defendant Steimle has stated from the very start that the date when he determinated his command with the SK 7a was the middle of December 1941.
His two affidavits submitted by the prosecution prove these facts. Steimle of 24 July 1947, Document No. NO-4459, Prosecution Exhibit No. 120must 70 considered more closely. In this document Steimle admits that on the occasion of a conference with the Chief of Einsatzgruppe B, Nebe, about the beginning of October, he heard from the latter that the Sonderkommando 7a had, up to then, not yet shot any women and children, but that Nebe now requested that these should be shot as well. This statement of Nebe cannot be interpreted as meaning, that the Sonderkommando 7a under Stemmle's command had already shot male Jews. On the contrary, it can only be understood to mean that SK 7a had itself carried out executions of Jews, but this had occurred - as your Honors well know - under the Commander of the SK 7a who proceeded Steimle. The defendant Blume, who was this predecessor, has admitted on the witness stand that on one occasion he had had a number of Jews shot. The Chief of the Einsatzgruppe B, Nebe, must have known that Steimle had only taken charge of the command for a shot time before, and he must also known that the defendant had not carried out any executions of Jews at all up to then. Clear Evidence to this effect has been given in my previous expositions. Nor did the defendant Steimle subsequently carry out the afore-mentioned order of Nebe, or pass it on to his men. In this connection I refer to Document Steimle 12, Exhibit No. 12, and Document Steimle 13, Exhibit No. 13. In the same affidavit of the defendant which I mentioned above Steimle further admits that he, with the help of his Kommando, arrested persons suspected of partisan activities and members of the Red Army who were hiding within the area covered by the 9th Army instead of reporting, as it was their duty to do. After the facts had been established by the leaders of the sub-Kommandos, these arrested persons were shot.
The expression "persons suspected of partisan activities" is only contained in this affidavit because the defendant, in the course of his interrogation on which this affidavit is based, admitted that the incident report No. 123, Document Steimle No. 32, Exhibit No. 31, was correct, and this expression appears on page 10 of the original. On the witness stand the defendant stated explicitly that only and exclusively such people were classed as persons suspected of partisan activity who rendered the partisans any kind of services. In this connection I again wish to point out briefly that this statement of the defendant was incorrectly translated into English, as can be proved from the German and English transcripts. For this reason the court received the impression that even persons who had nothing to do with partisans or who could not be proved to have rendered them any services were placed in this category. It is correct that the expression "persons suspected of partisan activity" is not inexact if viewed in connection with the statement made by the defendant. That is why the defendant mentioned "persons suspected of so-called partisan activity" in the course of his interrogation, in order to show that the persons in question were partisan supporters who were suspected of having actively participated in the partisan fighting. However, it is evident that their support of the partisans had to be regarded as equally dangerous from the security point of view as the partisan activities themselves, and the court has also expressed itself to that effect. defendant Steimle were former members of the Soviet Army, that is to say, former active soldiers who wandered around behind the front in civilian clothes and pursued their real purpose which was to reinforce the partisan units. Anybody who had reported to the German offices was safe from punishment. Orders to this effect had been made public everywhere by means of posters in German and Russian. These orders contained the warning that anybody who did not fulfill his obligation to report and was arrested would be treated as a guerilla and be punished by death.
Steimle Document No. 40, Exhibit No. 39, page 2 of the German and English Document Book Steimle, Book No. III. transcript of the testimony of the defendant Steimle, when compared to the German transcript, contains some grave errors in translation, and I have made a special application to have these corrected. I beg that Your Honors, when judging the case Steimle, should take these corrections-which are still to be made - into consideration. Steimle never on his own initiative passed on the Fuehrer order to his subleaders and other ranks. He himself did not participate in any execution in which partisans were shot. The activities of his Kommando were completely taken up by the combatting of the partisans, and the danger, scope, and inescapable necessity of this combat is shown by the material submitted by the defense. In all cases when partisans were arrested they were first interrogated in detail, and only if the guilt of the individual had been established a decision was pronounced. Steimle always convinced himself by means of spot checks that the interrogations were properly carried out and that the decisions made corresponded to the result of the interrogations. In the submitted records we again and again find the statement that interrogations were carried out and that the Sub-Kommandos of the SK 7a lent their own interrogation units to the Wehrmacht, if the Wehrmacht intended to carry out operations against the partisans. The combatting of the partisans itself was partly carried out by the Sub-Kommandos of the SK 7a on their own initiative partly in cooperation with and under the command of, W ehrmacht units. The personnel which made up the Sonderkommando 7a constituted a guaranted for the irreproachable conduct of the interrogations and for the justice of the decisions based thereon. Criminal investigators with the necessary training were available and were employed as subleaders and other ranks.
of the Fuehrer-decree can be deducted unequivocally from the aforementioned actions of the Kommando. It must be conceded to the accused that it was not consistent with his character to order the death of defenseless people only because they were members of a certain race. In view of the fact that the Fuehrer decree was a binding law, he must be given credit for having intentionally taken advantage of the situation existing in the area of SK 7a in order to evade the implementation of the Fuehrer decree. He was perfectly aware of the fact that he was responsible to his superiors in this matter. However, the serious danger, represented by the partisans, was a sufficient justification for him to shelve the Fuehrer decree -without endangering his own personand give priority rather to other operations of his Kommando which he intentionally and deliberately ordered for this purpose. The reports sent to Einsatzgruppe B by his sub-detachment left no doubt in the mind of STEIMLE's superiors about the nature of his activities. These were obviously approved of by the superior authority, as he never was called to account in a disciplinary way. This fact must not be allowed to prejudice him today. Reich Main Security Office - his second assignment in Russia as Commander of Sonderkommando 4a of Einsatzgruppe C. He held this command up to 15 January 1943, when he returned to Germany for an assignment with Office VI of the Reich Main Security Office. Reference is made to the defendant's statement made on the stand with regard to the events which took place during this second commitment in Russia and in the aforementioned period (pages 1985 to 1993 of the English transcript) . There is no need to go into this lucid presentation of the matter once more. The defendant's statements correspond with the truth and even a very sharp cross-examination could not reveal any contradictions. assignment of STEIMLE in Russia. His second mission was not a matter of his own initiative, nor was it based on the fact that he had previously been in charge of a Sonderkommando.
The only real reason was - strange as it may sound - the personal friction existing between two Office Chiefs in the Reich Main Security Office. This state of affairs prevented STEIMLE from being assigned to Office VI of the RSHA, as had already been planned in the middle of 1942, and the outcome was that STEIMLE was detailed to Russia for a second time. Document STEIMLE No. 10. Exh. No. 10 establishes this very clearly.
The operations of STEIMLE's Sonderkommando 4a were marked by the fact that the individual sub-units had to operate far in the field and that an exceptionally large area had to be covered by the operations of the Kommando. At times, SK 42 had to detail sub-units to 3 different armies; these sub-units in turn maintained direct contact with the prospective troop units by their own liaison officers. Thus, the great distance between the various details resulted in the unorthodox situation that these details were temporarily subordinate to the corresponding Feldkommandanturen. STEIMLE found this situation was already existing when he arrived, and local conditions did not allow this state of affairs to be changed. The strength of personnel of Sonderkommando 4a amounted to about 80 man, that is to say, considerably less than the usual strength of personnel assigned to the other Einsatz- and Sonderkommandos. In addition, the defendant STEIMLE had to turn over, whilst he had charge of SK 4a, additional personnel to the Commander of Cha*kow. From these facts, it can be easily seen that the exploits of SK 4a and its sub-units cannot have been of great purport. Here again, the main object of the activities was, of course, the combatting of partisans. These, however, had but small opportunities for major operations in the wide, open, and sparsely settled region of the river Don, no suitable hiding places quickly to be reached being available. The engagements with partisans were, for this reason, only few during this period. As the Kommando was partly operating immediately behind the front line, its tasks were often of a different nature.
The sub-units were also affected by the movements of the armies in the sector, which were necessitated in the course of strategic regroupings; this affected the details insofar as they had to take part in these movements in order to maintain contact with the forces they were assigned to. This epoch of the SK 4a under STEIMLE is thus also marked by marching movements.
The zone of operations assigned to SK 4a. especially the region around Kursk, where STEIMLE set up his command post - had been in German hands for some time, viz. for more than a year. Security tasks thus comprised only cases of active, hostile resistance such as espionage, sabotage and communistic agitation in defiance of Wehrmacht regulations. All such cases, the number of which was small anyway, were decided upon after a close interrogation for which trained personnel was available. Here again, the defendant STEIMLE checked on these proceedings and confirmed the decisions insofar as they became known to him. The details, operating very far in the field, had, of course, to be given independent authority in this matter and were subordinate to the Feldkommandaturen. not a single action against Jews implementing the Fuehrer decree was carried out. In this connection, it is interesting to note that the defendant has pointed out that he was never advised of the fact that the Fuehrer decree covered not only Jews, but also asocial elements, Gypsies and Asiatics. As already mentioned in this connection with his activity as Commander of SK 7a of Einsatzgruppe B, STEIMLE Had not been indoctrinated on the subject of the Fuehrer decree in Pretzsch or in Dueben. Thus, it is understandable that he has never heard the full wording of this decree, since he depended solely on the information derived from his superiors and from the men of his Sonderkommando. The context of these informations, however, depended on the actual requirements of the situation at any given time, I have shown that the defendant STEIMLE never heard that according to the Fuehrer decree Jews had to be shot, before members of Sonderkommando 7a told him that at one time, under his predecessor, they had been obliged to shoot Jews, and before the Einsatzgruppe leader NEBE once told him that the SK 7a had not shot any Jewish women and children yet.
He never learned of the order to shoot the remaining groups of persons mentioned nor did any such executions take place within the area with which he was conversant. know, viz. the shooting of Jews, had not changed before he was sent to Russia for the 2nd time, to take charge of Sonderkommando 4a. No wonder then that under his command SK 4a did not shoot any Jews. In this connection, we must also keep in mind that the prosecution does not incriminate STEIMLE for this period and no evidence has, therefore, been submitted for this period. Reports were still made to the Reich Main Security Office in 1942 and 1943. These reports still mention executions of Jews; it appears, however, that the number of such executions had considerably decreased as compared with the incident reports available for 1941. The evacuation measures started in 1941 wherein the Jews were given priority, had necessarily resulted in a new situation: regions which prior to the war had been sparsely inhabited by Jews were now practically devoid of Jews. If the defendant STEIMLE asserts that there were no Jews left in his area, this is true. This cannot be challenged, as there is no proof to the contrary. The fact that in other areas a small number of Jews still existed at that time, is in no way inconsistent with STEIMLE's assertion. the prosecution-the first of which took place as early as in 1945 and on the stand, the defendant STEIMLE has stated frequently and truly that he found a gas-van when he first reached SK 4a. He then described at full length how he happened to come across this van and in which condition he found it. Utilization of the gas-van for its original purpose was no longer possible at that time. If the defendant emphasizes that he did not utilize this car, this is not only credible because no Jews were to be found in his area any more but also because any proof to the contrary is lacking and because the prosecution has not even tried to bring such evidence.
To sum up,we conclude that also during the period of STEIMLE's second mission in Russia neither he himself nor the men of Sonderkommando 4a ever committed any acts which could justify the charges. The only document submitted by the prosecution which to a certain extent admits any conclusions for this period at all is prosecution document NO-3247, Exh.121. This document, however, does not contradict the above conclusions. It rather indirectly supports the defendant's statement covering the time he spent with Sonderkommando 4a. On pages 7 and 8 of the original document, which contain a suggestion of promoting the defendant STEIMLE, it is pointed out in particular that Sonderkommando 4a was frequently involved in combat actions during the winter battle of 1942/43 and that it had proved its worth. It is quite obvious that the term "combat" covers only actual fighting engagements with the enemy in the battle field. From this sentence, we are bound to conclude that the SK 4a was engaged in the very front line combatting the Red Army jointly with Wehrmacht units. That is the only feature concerning STEIMLE's activities in the East where is mentioned in this suggestion of promoting the defendant STEIMLE, and it was obviously considered the only point worth of mention. There can be no doubt whatsoever that in such a document it would have been stressed with the utmost emphasis and even by way of overstatements, that the defendant had been particularly efficient in the implementation of the Fuehrer Decree - as it is now charged against him - if it had been at all possible to support such assertion by facts. Since no such mention has been made in the exhibit, this is striking proof for the truth of STEIMLE's statements. This proof, however, not only covers the time of his second mission in Russia but also a period when STEIMLE was commander of Sonderkommando 7a of Einsatzgruppe B.
principles which are internationally acknowledged, the infringement of national penal laws, and an utter disregard of the most primitive protection a human being is entitled to in his sphere of life in this connection. The indictment bases itself on Control Council Law No. 10 and on the offenses, the elements of which are enumerated in Article II thereof. These provisions, however, only represent an outer framework. It has been pointed out again and again by the defense in all proceedings before the Military Tribunals in Nuernberg that Control Council Law 10 cannot be applied as long as its application is inconsistent with the generally acknowledged legal maxims of "nullum crimen sine lege" and "nulla poena sine lege". I do not want to repeat all the arguments already submitted to the effect that it is impossible to punish a person for an offense which at the time of commission had not yet been declared criminal in penal law, and that nobody can be subjected to a punishment which had not been provided for at the time when the crime was committed. These legal maxims are the most fundamental axioms forming part of the criminal jurisprudence of every civilized nation. In logical consequence, we thus reach the conclusion that Control Council Law No. 10 can be taken as a legal basis for this proceeding only insofar as the elements of offenses enumerated there as criminal coincide with those for which the defendant Steimle was liable to punishment according to the law effective at the time of commission. This is, therefore, the pattern according to which the frame-work provided by Control Council Law No. 10 must be filled in. Insofar as this applies to substantive law, it is of no purport for the case of the defendant Steimle. The defense believes to have proven that the defendant Steimle neither during the time he was employed in the East, nor before or after, ever committed any punishable acts which must be atoned for according to international law or the penal law code of any nation.
laid down in Control Council Law No. 10 are a direct violation of the fundamental principles mentioned above. Special reference is made to Arti. II, sections 2c - e. These forms of participation are now rulings inconsistent with all continental penal codes. In particular, they are completely unknown in German penal law, to which the defendant Steimle was subject. I shall, therefore, discuss these provisions only as a subsidiary argument, in order to show that they do not apply to the facts of the case, as such, and that the defendant Steimle cannot be found guilty even in case these provisions were applied. while employed in the East kept within the established rules of international law and of the law of warfare then actually in force. The combatting of partisans and spies has been carrried out persistently in all wars and by all nations. Nobody can challenge the validity of the legal rules which have been developed with regard to this fight. Despite the special nature of warfare against the Red Army, waged on the part of the Soviets in defiance of the laws of warfare, the defendant Steimle never deviated from the course prescribed by the law. did not commit any crimes in the meaning of Control Council Law No. 10 nor did the members of the Kommando under him commit such crimes. He can, therefore, neither be convicted as principal nor as instigator nor as accessory. Similarly, the other forms of participation defined in Art. II section 2 c of the Control Council Law (but not contained in the continental penal codes) do not apply to him at all. On the basis of the evidence submitted by the prosecution, he cannot be charged with having taken a consenting part in any crimes whatsoever. Neither was he in any way connected with the planning and committing of such crimes. This assumption would only be justified if Steimle had been conversant with the purpose and aims of the Einsatzgruppen prior to their first commitment and if he had, in addition, taken part in the planning of their organization.
The evidence submitted by the prosecution has furnished no indications in this direction. It seems, therefore, superfluous further to discuss the elements of these forms of participation.
However, a last form of participation has been laid down by Art. II, sec. 2. According to this provision, an individual is guilty of a crime in the meaning of Art. II, Sec. 1 of Control Council Law No. 10, if he or she was a member of an organization or group connected with crimes of the character listed in sec. 1. independent "militant" units; they were by no means departments or branches of the organization of the Chief of the Security Police and of the SD. Even less were they departments or branches of one or the other of the offices of the Reich Main Security Office. This is very clearly shown by the fact that the Einsatzgruppen and their sub-units were subordinate to the Army Groups and/or Armies. It is made still clearer by the variety - so frequently proved in this proceeding - of those groups of persons with which both the rank and file and the leader corps of the Einsatzgruppen were staffed. Beside SD members, we find in the Einsatzgruppen members of the Stapo, the criminal police, the Waffen-SS, the regular police and the Wehrmacht. The findings of the IMT particularly stress this variety. They also stress the fact that in the front areas the Einsatzgruppen were under the control of the permanent commander in chief of the army. The assignment to these independent units of the Einsatzgruppen was effected by an order of the superior command authority having jurisdiction over the individual in question, in the same way in which Wehrmacht members were assigned to special units of the combat troops. In this connection, the IMT has acknowledged the fact that SD members were, particularly during the war and in the occupied territories, not in a position to refuse - without incurring the most severe punishment - to accept an assignment given to them.
There can be no doubt that Steimle's two periods of employment in the Sonderkommandos were brought about by official orders, and that he joined the Sonderkommandos in compliance with orders which he was in no position to refuse. The notion of membership, in the general meaning of the term, implies the voluntary decision to become a member; it cannot apply to a man who joined the Sonderkommandos in the way described above, no consideration whatsoever being given to his own intentions. When judging on this matter, it is absolutely necessary to take as a basis the conditions actually prevailing at that time and, in particular, to consider that Germany was under a dictatorship which knew only too well how to secure complete compliance with its orders. There again, the mental elements implied by the term "membership" must also be considered. The very fact that the Einsatzgruppen included members of all the various organizations of the Party and the State, militates against the conclusion that a man who volunteered for one of the SS organizations, viz. the SD, and who was later assigned to the Einsatzgruppen, became a member of the latter in the general meaning of the term. The concept of "membership" implies not only cognizance of the group or organization which an individual is joining, but it also requires that the prospective member approves of the effect, in other words, that he intends to be a member in that organization. A man who volunteered for the SD knew which organization he was joining and acquired the membership by his own free will. A man who was assigned to the Einsatzgruppen by way of an order, on the other hand, was in no way in a position to determine whether or not he wanted to be a member. Furthermore, the members of a group can only be considered members, if they have the definite intention to cooperate in the fulfillment of the purpose of the group or organization. Prior to his arrival in Russia, the defendant Steimle had no idea of the purport of his tasks.
In practice, he adapted his activities to the conditions prevailing; by the way he performed his tasks, he clearly showed that he did not approve of the implementation of the Fuehrer-Decree. As for himself, he kept, therefore, aloof from it; thus, he clearly disrupted the unity of purpose common to the members of such an organization. He never furthered the purposes and aims with which the Einsatzgruppen are charged by the prosecution, nor did the fact that he was a member ever contribute to their implementation. The defense is , therefore, convinced that the defendant Steimle cannot be convicted even of that form of participation which I discussed just now; this applies quite apart from the fact that this conception of participation violates in my opinion the fundamental rules of criminal law which I mentioned before. According to the maxim that every defendant is presumed not guilty until the contrary is proved, the evidence produced by the prosecution is by no means sufficient in order to refute this presumption without any reasonable doubt. It must be kept in mind that the men in the dock were not the inaugurators of the events now under the judgment of this Court, but that they were, at the utmost, tools in the hands of a dictator. Not every tool is equally apt for the purpose for which it was designed. It must not be overlooked that not all leaders of the Einsatzgruppen and not by far all leaders of the Einsatz- and Sonderkommandos are in the dock. We must not succumb to the impression - an impression which could be formed easily - that the events in the East, of which the prosecution has produced evidence, had been implemented only and exclusively by those leaders who are present in this Courtroom. This notion would mean a conviction based on a superficial and misleading aspect, in other words only on the fact that the defendants served in the Einsatzgruppen. This wrong inference can easily be avoided by applying to the determination of the personal guilt of the individual defendants those standards of diligence which we can safely expect from this Court.