in 1941, fully realized that that order was utterly unjustifiable. It will, it is true, be objected, why Nosske, realizing that, aid not oppose the order. opposition in the then prevailing situation required great personal courage, extraordinary firmness of character, and, above all, an absolute conviction of the wrongfulness of. National Socialist policy. worth of prevailing with one's own conceptions, once they were recognized as just, even in the face of a strong propaganda. defendant Nosske saw through the ummorality of that order and sensed it, he was not able to master the strength to express his right feelings, the less so as probably he would not have found understanding or even readiness to listen to him. quences. he resisted the order, have been shot summarily. But surely he would have suffered considerable personal disadvantages, which, owing to the daily increasing severity of the administration of justice, could not be anticipated beforehand as to their ultimate consequences. in his heart was resolved not to execute the order. With regard to the result of his resolution, he declares that he had succeeded in evading the Fuehrer Order until, in March 1942, he was relieved.
A "failure to execute the order" will here also be always defined as the mass shooting of people without regard to their personal guilt, only because of their membership in a race or their, activities as Commissars.
Order for various reasons. At the start of the Russian campaign he followed up other Einsatzkommandos into areas which they had occupied previously, remaining in reserve. Later on it was partly a similar thing, partly he had to occupy preponderantly rural areas, where there were no Jews. These were mostly living in the towns. He was also helped by the extraordinarily severe winter of 1941/42, as he was unable to leave his quarters owing to snow and cold for weeks and, above all, to join the 17th Army, where his actual first assignment with a view to the execution of the Fuehrer Order would have taken place. At that assignment Nosske did become active in the area of the 17th Army either because the German advance was stopped and he was relieved in March 1942. result of lucky coincidences he was able to evade the Fuehrer Order, and in particular that he was never placed before the question of an inescapable assignment on the basis of the Fuehrer Order. if he had been restricted in his freedom of decision to the extent as to be placed before the direct alternative of shooting e.g. 500 Jews on the spot or to be shot himself in case of a refusal. To that Nosske answered that in this case he would have shot the 500 Jews.
THE PRESIDENT: Dr. Hoffmann, the illustration is not put exactly the way I put it. I did not say "confronted with the situation of shooting 500 Jews or being shot yourself, what would you do?" I merely asked him, because he had denied that he at any time ever shot a Jew and that he had ever been placed in that situation. He said that it was his good fortune that in all the time he was in Russia he did not have to confront that dilemma, that he had great regret that any of his co-defendants were placed in the position where they had to answer that problem.
But he, fortunately, never had to answer that situation. So then I put to him, "suppose you were put in that situation that you were confronted with 500 Jews and you had this Fuehrer Order before you, what would you do?" You see there is a great difference there, Dr. Hoffmann We did not ask him to chose between an alternative. We gave him the opportunity to reply freely just what he would do in that situation. And he said, if we recall correctly, that were he in such a situation and would be subjected to the possibility of reprimand by his superior that then he would have to execute the order. However, we will, of course, examine the record very thoroughly in that connection should it become important to do so.
DR. HOFFMANN: Your Honor, if you will look at my trial brief I think my trend of thought is correct except for that point where I explain that in my opinion your question, Your Honor, also concerned the contention that in a certain case he would have been restricted to a certain extent. Actually, I merely want to explain that in my opinion you, Your Honor, put a hypothetical question - what he would have done if he had come into that situation - and that was the answer he gave you. Perhaps the translation does not indicate this quite as clearly. I want to state this again in my final plea that this was merely the answer to your hypothetical question.
THE PRESIDENT: Yes, it was a hypothetical question, At no time did we ever in the form of a question or in the shape of observation suggest that someone who is confronted with the proposition of losing his own life is compelled to take some step which would result in immediate loss of his life.
Dr. Hoffmann, since we have now stopped at this point do you think this might be a good time to have the morning recess?
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed, Doctor.
DR. HOFFMANN: Your Honor, first of all I would like to continue my presentation, and I requested that my office be giventhe German text of this cross-examination problem of your Honor so that I may refer to it briefly.
THE PRESIDENT : Very well.
DR. HOFFMANN: In my opinion this answer given by Nosske is not to be judged as the expression of callousness or inhumanity. It shows that Nosske does not pretend to be a noble and blameless man, but rather admits to be a human being with all his inherent weaknesses. Though possessing the insight to discern good and evil, his estimate of his own character is, in an assumed case, not high enough as to be able to credit himself with the firmness to prefer to be shot himself rather than to shoot others. would behave in such a situation oneself. sublime one, but an honest answer which, in its honesty speaks in my opinion in favor of Nosske. ly, indentical with those made in his affidavit in reply to the Prosecution. has submitted against Nosske in the first place. There are only 3 and I shall be able to deal with them in succession. Book II D, Page 49, of the English text. area of Babtschiczy and relates the shooting of 94 Jews. kommando 12, who had been supervising the harvesting in that area, reported those shootings to him.
shootings had taken place because of sabotage of the harvesting, and not on the basis of the Fuehrer order.
Nosske was not present at these shootings. All he can say is what had been reported to him. of the application of the Fuehrer Order. It mentions expressly countermeasures, which presuppose that a particular cause had been present for the shootings. TheFuehrer Order, however, decreed theextermination wit out regard to a cause. pros. Exh.168. This document deals with the treatment of baled-out Russian parachutists. soldiers who would have had to be regarded as prisoners of war. The question is, whether the expression "to take care of" as used in the last paragraph of that document, means the same thing as "to kill", by which it would be proved that the members of the Einsatzkommando did in fact killprisoners of war. been killed because he offered resistance, and this procedure is called "taking care of" of the parachutist in question. In this case "to take care of" is the equivalent of to kill.
"settle", which was also used in the last paragraph of this report, pression "erledigen" in the last paragraph means to render harmless in from his own knowledge.
He was not present during this occurrence. He did not prepare the report himself. He did not sign the report. During charge of the Kommando.
No killing could have been carried out by vir Document NOKW-3147, Exh.
96, Document Book II D, page 52 of the August to 15 September 1941.
Einsatzkommando 12 is not mentioned in this report.
The Prosecution has also submitted this report as evidence gruppe D. Even if the report contains reports on shootings which were whether by the Wehrmacht or by the police.
However, no shootings took first submitted against Nosske.
It is Document 2837, Pros. Exh. 38, Doc. Book II B, page 7 of the English text. the Djester River near Jampol Shootings of Jews are also mentioned in that document. closely questioned about the document by Judge Musmanno. The Prosecution devoted about three-fourths its cross-examination to this document. The views of the defendant Nosske unchanged. He declared that he did not carry out any shootings and did not execute the Fuehrer Order. who by chance was once Bridge Commander at Jampol, repeated the statement of the defendant Nosske simply and clearly without previous questioning. produced unimpeachable proof that no shootings were carried out by Nosske or his men during the passage of the 10,000 Jews. The witness has expressly stated that as Bridge Commander of the Army he himself witnessed from beginning to end the manner in which Nosske effected the passage of the Jews. voluntarily, that they were happy to find themselves in their old surroundings again. question continued to camp for 2 days on the banks of the river after Nosske had driven off with his men, Not until ten were they conducted back into the interior by the Roumanian police. shows that in a case where the interpretation of the document might be just as doubtful as in the other documents the statement which Nosske gave was in accordance with the truth. Therefore, his statements concern the other documents can also be given preference before any other interpretation.
Jampol, however, also brings up another point which is very important for Nosske. The Prosecutor asked the witness during his cross-examination what the situation of these 10000 Jews had been with regard to food and whether Nosske had done anything for these people. 10,000 persons and distributed these peas among them. He said that the ration had even been so generous that even after the departure of the Jews there were still peas left. That shows that these people received enough through this food issue to satisfy their hunger, for hungry people would not have left any peas at all. However, it also shows that Nosske did not keep to the terms of the Fuehrer Order.
If he had wanted to run up a "shooting score" it would have been easy for him to kill thousands of innocent human beings here.
Nosske was in Russia for 8 months. His activity was interrupted by a period of sickness of one month, during which Hausmann was in charge of his kommando. This is Document NO-4747, Exhibit No. 118. The Prosecution itself says that a few hours after giving the affidavit the affiant committed suicide. affidavit because I can no longer cross-examine Hausmann. the document. I believed that thereby I could better servo the discovery of the truth than if I had prevented the submission of this document merely as a matter of form. able to ascertain that it completely confirms Nosske's account of his activity. the Fuehrer Order.
which Einsatzkommando 12 was occupying. unmolested. mann was considered false by the latter, because such executions had not taken place at all. alleged report of 300 executions is true, and if it is true what intentions Nosske had in mind with such an untrue report, are questions which can no longer be cleared up today after Hausmann's suicide.
In any case, In Hausmann's opinion the 300 executions were a lie. taken place, then he probably must have had a reason for making such a false report. Nosske to the defendant Ohlendorf. taken place. Reich Main Security Office in Berlin and in June 1942 entered Department IV. Kommando Staff.
According to Nosske's statement this was no longer an actual Kommando Staff as it is understood in the ordinary sense and as Heydrich had also once planned it, but after Heydrich's death it had become a sort of editorial staff which had only continued to retain the name of a Kommando staff. concerning persons who had been shot in Russia by virtue of the Fuehrer Order were already being sent exclusively to Eichmann, the Chief of Group B IV in Department IV of the Reich Security Main Office.
In Nosske Document No. 6, Exhibit No. 5, Dr. Hans Ehlich, the Chief of Section III I in the Reich Main Security Office states:
"After April 1942 the Kommando Staff was the office where the respective specialists from all departments met for the purpose of making editorial summaries of the material contributed to the Reports from the East by the departments handling the respective subject matter. These summarized reports were called "Reports from the Occupied Eastern Territories". In contrast to the former "Operational Situation Reports from the USSR" they did not contain, as far as I recall, any figures or reports concerning operations carried out in the East by under the Fuehrer Order.
At any rate, Dr. Hans Ehlich's affidavit shows that the office manager occasionally appointed by Office IV of the RSHA, only had to see to it that the reports were technically correct and were distributed. the Einsatzgruppen, not even before Nosske came there, because of course, the Fuehrer Order was the basis for the work of the Einsatzgruppe. received several other tasks in the RSHA. Exhibit No. 6. tried, as early as 1942, to effect his release from the Security Police.
He says, verbatim:
"At this time Nosske, in my presence, took advantage of the opportunity to effect his release from the Security Police through the Chief of Office IV. value on his services.
Office interrupted him brusquely and told him that he would have to wait for further orders. through the Chief of Office I, once before. They had not considered his reasons valid. This was his third unsuccessful attempt in the last few years to leave the Security Police". for the final judging of Nosske. At that time Nosske was in charge of the State Police Office in Duesseldorf. In September 1944 he was ordered by the Higher SS and Police Officer Guttenberger to round up all Jews in Duesseldorf and in the entire territory of the Higher SS and Police Officer, as well as all Aryans connected with them, and to shoot them. thousand people. The propaganda was still proclaiming loudly that the Allies would be stopped at the Rhine. used.
Duesseldorf was still about 200 km from the front. It was actually still 7 months before the final victory of the Allies. the Higher SS and Police Officer. Germans, too, would be liquidated by this order, was surely the most practical point he could have made to the RSHA in order to have the order rescinded. it is basically a matter of innocent people, Jews as well as Germans, who had to be protected from an order similar to the Fuehrer Order.
the Higher SS and Police. Officer rescinded by the RSHA. Officer Guttenberger, who did not forgive him for preventing the order. military insubordination and failure to perform his duty and succeeded in having Nosske prosecuted, which was handled by the Investigation Officer Dr. Hausmann, of the SS and Police Court in Berlin. the Nosske Document No. 8, Exhibit No. 7. According to this affidavit the trial proceeding was initiated against Senior Government Councillor Gustav Adolf Nosske in the autumn of 1944 as the result of an official complaint of the Higher SS and Police Officer Guttenberger, as well as of Inspector of the Security Police, SS Colonel of the Police, Dr. Albath. brought against him. the real reason for this trial was his refusal to carry out an order of the Higher SS and Police Officer Guttenberger which demanded the execution of half Jews and their Aryan spouses. behaviour he understood and approved of. the RSHA, under any circumstances, and insisted that he must disappear.
In his affidavit Husmann says, in this respect:
"It was finally decided that Nosske would be removed from his position and dismissed from the Gestapo. He was to go to the front as a plain soldier. Charges were not to be dismissed, but only postponed until the end of the war, as was also done in other cases.
the Gestapo, to which he had belonged." witnesses from the State Police Office in Duesseldorf. day and gone the next, and did not even have a chance to turn over his tasks to his successor.
In Document Nosske How 10, Exhibit NO. 9, Dr. Hans Schmitz, who was Criminal Director of the State Police Office in Duesseldorf until the end of the war, states:
"Former Senior Government Councillor Nosske was my superior from autum 1943 until September 1944 as the Chief of the State Police Office in Duesseldorf. After the summer of 1944 I was, after Nosske, the senior official and in that capacity I state that at the end of September 1944, Nosske was dismissed from his position as Chief of the State Police Office by a decree of Kaltenbrunner.
Nosske left the Security Police and the SD. He had to turn in his official pass and his SS uniform at the office. military service. In October 1944 Nosske became a soldier." this point, I find that there is no conclusive proof that Nosske carried out the Fuehrer Order in Russia. Einsatzkommando 12 carried out under orders from Nosske, which were based on existing laws of warfare rather than the Fuehrer Order, were fundamentally illegal. It has presented only one document against Nosske which, if you accept the interpretation the Prosecution gives this document, contains a violation of the laws of warfare over and beyond the Fuehrer Order. of Russian parachutists.
tion. incident, because he had turned over Einsatzkommando 12 to another officer and himself was in the hospital. refusal in September 1944, saved, before the end of the war, thousands of innocent people from being killed. Police and SD in October 1944. declared to be criminal, according to the verdict of the IMT in Nuernberg. claims is not present. from all the circumstances I have brought up, will be decided by the Tribunal.
DR. HOFFMANN: Your Honor, may I briefly quote from the German text, that is, the transcript of the 9th of December, page 1732, and this is the question of the presiding judge. I quote:
"All right, then you would have carried out the order in case you had found any Jews?" Nosske answers, I quote:
"If I had received the order and if I had found any other way, or if I had not been able to evade the order in any other way, that is to say, if the final consequence would have been, namely, to be shot myself, then I would have carried out this order."
PRESIDENT: There is nothing in what you have read which would suggest that I had asked what he would do in the event the alternative was death, as you stated in your summation.
DR. HOFFMANN: Very well, Your Honor, but may I then have you interpret the final plea in such a manner that Nosske in such a hypothetical case gave this answer to which I refer in my final plea, even if he didn't understand your question, Your Honor?
PRESIDENT: The only point that I made, Dr. Hoffmann, was that you said on page 6:
"Judge Musmanno asked the defendant, Nosske, what would have happened if he had been restricted in his freedom of decision to the extent as to be placed before the direct alternative of shooting, for example, 500 Jews on the spot, or to be himself in case of a refusal?" I never put such a question to him. That is the point I wanted to clear up.
DR. HOFFMANN: Your Honor, I admit that you didn't pose this question. In this respect, my interpretation is wrong.
PRESIDENT: Very well. Dr. Lummert.
DR. LUMMERT: Lummert for the defendant, Blume. With Your Honor's permission, I would like to read my final speech in the English language.
PRESIDENT: Very well, Dr. Lummert.
May it please the Tribunal:
1.) In my opening statement I announced that in my final plea I intend to deal in particular with the legal question of the so-called "unexpectability" ("Unzumutbarkeit") This is in accordance with an agreement of defense counsel in case No. 9 by virtue of which certain questions which are of importance to all defendants or to some of them are to be treated in detail by different defense counsel in order to save time and to avoid unnecessary repetitions.
Among these general themes are e.g. the special conditions in the East, the question of necessity caused by the order of a superior, the questions of general necessity and presumed or putative necessity and - as to my contribution - the question of "unexpectability". I am going to deal with this question in the first part of my final plea before discussing the conduct of the defendant Blume and the special questions of his guilt or innocence.
What is the meaning of "unexpectability" under penal law? We are concerned here with an excuse for the individual perpetrator who failed to comply with a duty imposed upon him by order or prohibition. This duty - also existed for this particular offender, but the special circumstances however have the effect that he can not be held responsible for the fiolation of this duty. This doctrine of "unexpectability" has been developed by jurisprudence and administration of justice in German Criminal Law during the years 1920 - 1933 in particular.
The English language has no word for "Unzumutbarkeit". The meaning of this term is: that a person cannot be expected to act in a certain way i.e. according to the standards of criminal law, if the accompanying circumstances of the case are considered fairly and reasonably. As a brief translation for "Unzumutbarkeit" in this plea I suggest and use the term "unexpectability".
"Unexpectability" under German Criminal Law is no (objective) justification, but a (subjective) excuse. The distinction between the objective and subjective viewpoints of the act as know under German Penal Law, it is true, have been accepted in the Nuernberg trials during the past two years, however it is alien to the conceptions of AngloAmerican Penal Law. I therefore want to emphasize that the idea of "unexpectability" need not be limited to the subjective viewpoint of the act in the German sense, "Unexpectability" concerns much rather the borderline area of the effectiveness of the standards of criminal law, and the results under penal law are the same, no matter whether a criminal law was no longer binding for the perpetrator on account of the prevailing circumstances of the case, or whether the perpetrator acted in violation of the laws but has been excused on account of the circumstances prevailing in this case. In neither case can he be punished. Considered from this point of view "unexpectability" is the basic legal principle which is fundamental to all special statutory provisions of the individual States concerning self-defense, excessive self-defense, state of necessity, presumed or putative necessity, provocation, collision of duties, necessity arising from an order etc.
, but which is not entirely covered by them. "Unexpectability" is a general reason outside the Statute Law, under which punishment of the perpetrator does not seem justified and is therefore excluded. and quotations from judgmentments and scholarly works in document Blume No. 30. I should like to refer to this. It is of special importance that the International Military Tribunal in its judgment recognized the basic idea of "unexpectability" in discussing the necessity arising from an order, as was done in the following classic brief form:
"The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible." The IMT also used this basic principle in judging the organizations charged with being criminal. There, it excluded from "criminal groups" those "who were drafted into membership by the State in such a way as.
to give them no choice in the matter." This same basic principle prevails in Judge Musmanno's concurring opinion on the conviction of Fieldmarshal Milch where he says:
"We never intended, nor was it suggested, that he should take any action which would result in the forfeiture of his life." The same idea can be found in the judgment of the Military Tribunal No. IV in the case against Flick and others (case No. 5); it considers the mere employment of foreign slave labour by industrialists excused by the conditions prevailing in Germany at that time, in particular by the demand of the State. The court arrived at this conclusion through an extensive interpretation of the term "necessity". May I refer here also to the excerpts from the standard Americah work, Wharton's Criminal Law, contained in Document Blume No. 30. The quotations contained in this document also refer to other foreign laws.
Thus in Austria Article 2g of the Austrian Penal Code of 1852 makes possible a consideration of the basic idea of "unexpectability", in France it is the broad interpretation of the conception of the contrainte morale, in Italy it is the distinction between imputabilita' and responsibilita' and the interpretation of this latter concept. Under Roman Law we finally find the general legal principle of "nemo ultra posse obligatur". principle of "unexpectability", because this is a general principle "which the Judge is bound to observe", as Prof. Kraus, Membre de l'Institut du Droit International, states in his comments on Control Council Law No. 10.
2.) what are the conclusions to be drawn from the concept of "unexpectability" for this trial? The defendants are charged with murder of mass-murder. Who ever is familiar with the history of the war crimes trials - beginning with the speeches and warnings by President Roosevelt from 1941 on through the Moscow declaration to the London Four Power Agreement and Control Council Law No. 10 - knows that first of all there were two main groups of crimes which caused a humanitarian reaction on the part of the public of the World, in particular of the United States of America, namely the mass-extermination of Jews in concentration camps, which is inconceivable to every human being with any moral sense, and second, beginning already at an earlier date, the liquidations of human beings by the Einsatzgruppen in the Last from the middle of 1941 on. It was to these two groups of crimes, to which Justice Jackson's words referred in his report to President Truman dated 7 June 1945:
"We propose to punish acts which have been regarded as criminal since the time of Cain and have been so written in every civilized code." Justice Jackson might have as well quoted the fifth commandment which reads: "Thou shalt not kill."
The following question arises out of the idea of "unexpectability": Could the defendants, under the particular circumstances prevailing in 1941, be expected ("zugemutet") to act differently? the "special circumstances" under which the defendants acted in the manner of 1941 and the following months. a complete picture of the historical, political, military, and other special conditions prevailing at that time. In the following I have to limit myself to showing a few facts of particular importance. was a S t a t e that ordered these exterminations of human beings.
Who are they, strictly speaking, these so-called States? I do not intend to deliver here a legal or philosophical lecture on the "State", I only mention the fact that to this day the States are without any doubt the highest ranking forms of organized society and still are at the same time the supreme legislators. They did and still do claim so-called sovereignty for themselves. This concept of sovereignty developed after the end of the Middle Ages together with the formation of actually and legally independent States. It is the essence of this concept that the aims of the State take precedence over all other human aims, that therefore the concept of the State ranks above the concept of mankind, and that the States are the masters of International Law as well and not vice-versa, Macchiavelli, as is well known, expressed this supremacy of the State in the concept of ragione di state, the raison d'Etat. The Frenchman Bodin coined the expression of "puissance souveraine", "summa potestas" for this supreme power of command of the State. To express the same thought, Hegel, the philosopher, chose the words that the State was "the absolute power on Earth". Since the old idea of a general right of nature had been abandoned, international law could only come into existence by voluntary obligation of the States through "inter" national treaties or by customary law which was voluntarily recognized by the States.
COURT NO. II, CASE NO. IX.
was generally recognized throughout the world until 1914 and that it was effected only by the catastrophe of the first World war. It is not new to the Tribunal if I mention that those who promoted and represented the new concept of a worldwide law, ware and are, above all, US statesmen. At the beginning of this development to find the famous message of President Wilson to the Senate of 22 January 1917 where says:6) "Mere agreements may not make peace-secure.
It it.
If the peace presently to be made is to en ganized major force of mankind."
This organized mankind was the purpose of the 27 points laid down by President Wilson in his four speeches in 1918 which were accepted by all signatory Nations as the basis for the armistice of November 1919. The crucial point was that in the future international law should take precedence over the law of the individual States. This was most clearly expressed in the Mount-Vernon Speech of 4 July 1918 where President Wilson said: 7) "These great objects can be out into a single sentence.
That we seek is the reign of law, tained by the organized opinion of mankind."
It is well known that the idea of the precedence of international law over national law remained in force only for a few months. During the negotiations at Versailles 6) Congressional Record, 64 Congress, 2nd Session, vol.
54, No. 35 p. 1947. 7) Cf. H.W.V. Temperley, a history of the Peace Conference of Paris, vol.
I, London, 1920, p. 132.