The thief who brings a ladder to a certain place in order to commit a burglary prepares by this the burglary. In so far he cannot yet be punished. He only renders himself punishable in the very moment in which he begins to execute the burglary, that means to climb the ladder, in order to execute the burglary then in immediate connection with this. The act pertaining to the execution thus is an unbroken chain of events with regard to time.
THE PRESIDENT: Dr. Von Stein, in order that we may not misunderstand you argument in this respect, do you contend that if Mr. X is aware that a burglary is to take place and then does nothing further that he is not liable criminally for having taken the ladder to the place of the crime? Is that your illustration?
DR. VON STEIN: What I meant was - if I want to stick to this example - if the person concerned knows what action others intend and he assists them in some manner, however, and assists them to such an extent that it makes it easier for the perpetrator to commit a crime, then he is punishable.
THE PRESIDENT: Then your illustration is not correctly put in your summation "because you say here he only renders himself punishable at the very moment in which he begins to execute the burglary, that means to climb the ladder, be he doesn't have to climb the ladder if he has taken the ladder there so that it may be used in a burglarious enterprise.
DR. VON STEIN: Your Honor, the example may not quite apply here. With a ladder it would be like this; if the person concerned only places a ladder there but knows nothing about the plan and does not commit any other action then he is not liable to punishment
THE PRESIDENT: If he -
DR. VON STEIN: --but the example was as follows:
THE PRESIDENT: Just a moment, Dr. Von Stein. If you contend that he know nothing about the burglary and took the ladder with the understanding that it was to be used for painting a house, certainly there is no crime committed, but we didn't understand your illustration to be that.
If you say now that he knew nothing about a burglary then the illustration is of no consequence whatsoever.
DR. VON STEIN: Your Honor, I merely wanted to determine a preparatory work from the point of view of time. Preparatory work can have been done so much earlier that it can no longer be considered a punishable act from a legal point of view. What I wanted to say is when preparatory work is liable to punishment. I said principally that preparatory work is irrelevant from a legal point of view unless this preparatory work as such constitutes a criminal act. That was my principle statement.
THE PRESIDENT: It does not constitute a criminal act unless the preparatory work is done knowingly, that it is part of a criminal act.
DR. VON STEIN: Your Honor, there are certain crimes according to the German law which refer to preparatory work, and they are only liable to punishment because the legislature determines them as a punishable act expressly. Apart from that preparatory work is not liable to punishment from a legal point of view. The example I have chosen with the ladder, it is like this, that because of the preliminary work an action rises which can be described at the beginning of the commission of the crime, that is the getting up on the ladder. That is what I was trying to explain.
THE PRESIDENT: Well, we understand that you understand that if an individual obtains and carries a ladder to a certain place knowing that a burglary is to be committed with the use of that ladder and the burglary then does actually take place that he is particeps criminis. That is correct statement, is it not, from your point of view?
DR. VON STEIN: Well, your Honor, may I repeat? I will stick to the example of the ladder. If somebody merely brings a ladder and that is all he does, and he knows nothing about a crime apart from that, that the ladder is to be used for a burglary, then he is not liable to punishment.
THE PRESIDENT: Very well.
DR. VON STEIN: Although the ladder was perhaps necessary in order to enable the criminal to commit a crime this preparatory work is of no importance from a legal point of view. But if the person concerned himself climbs the ladder hut the burglary is not committed then this preparatory task is an attempt to commit burglary. That is why it is of importance from a legal point of view "because something is added.
THE PRESIDENT: Yes, but carrying your illustration further, if the man did not know that the ladder was to be used for burglary and he climbed the larger not knowing that he was going to commit a burglary then, of course, he is not guilty. could have climbed the ladder to elope with his sweetheart, and that is not considered a crime in any country.
DR. VON STEIN: Your Honor, I want to say something to this example.
THE PRESIDENT: Let's take it up after recess. The Tribunal will be in recess fifteen minutes.
(A recess was taken.)
(The hearing reconvened at 1530 hours.)
THE MARSHAL: The Tribunal is again in session.
MR. HOCHWALD: If the Tribunal please, the Tribunal will certainly recall that the prosecution objected against an affidavit by the affiant, Jauer, and asked to cross examine this witness. As far as I am informed by the marshal, the witness will arrive tomorrow afternoon. Up to date the prosecution has not received a copy of the affidavit in question. I have asked Dr. Riediger, who promised it to me, and I have asked his assistant this morning. In order to be able to prepare the cross examination, I respectfully request that the marshal may inform Dr. Riediger to furnish prosecution with a copy of the affidavit on which I am supposed to cross examine the witness.
THE PRESIDENT: Well, Mr. Hochwald, the situation is simply this, that the witness will be in court and since the affidavit has not been introduced in evidence, you may have that affidavit unless Dr. Riediger wishes to give it to you. If he wants to submit it in evidence, then naturally he must present it to you, but if he does not then -
MR. HOCHWALD: If Your Honors please. I understood that the affidavit will be admitted under the circumstances that the prosecution will be permitted to cross examine the witness. If the witness comes here, I am supposed to cross examine the witness on the affidavit. I do think I should have a copy of the document.
THE PRESIDENT: Well, Yes, if Dr. Riediger still ;intends to submit it, then by all means you should have a copy of the affidavit.
MR. HOCHWALD: The original request of Dr. Riediger's was not for the calling of the witness, the original request was for the introduction of the document. I have requested to cross examine the witness on the contents of the affidavit, nothing else is subject of the -
THE PRESIDENT: Yes. The Secretary General is instructed to contact Dr. Riediger, counsel for the defendant, Haensch, and instruct him to turn over to the Secretary General the affidavit which is the subject of this discussion so that Mr. Hochwald may have a copy of it for the purpose of cross examining the witness.
when the witness takes the witness stand.
MR. HOCHWALD: If I may add, Your Honors, a German copy will be entirely satisfactory to me. Thank you very much.
DR. GICK: Gick for Strauch. Your Honor, I have submitted the affidavit of the wife of my client, as an exhibit and after conferring with my client, I have to say that my client agrees to it. if the prosecution wishes to cross examine this affiant.
THE PRESIDENT: Mr. Glancy, I don't know whether you heard the statement of Dr. Gick. It is to this effect, that the defendant, Strauch, has no objection to the calling of Mrs. Strauch as a witness for cross examination in view of the fact that he has submitting in his own behalf the affidavit made by his wife, Mrs. Strauch. The prosecution is so informed,
MR. GLANCY: Thank you, Sir.
THE PRESIDENT: Yes, indeed.
MR. GLANCY: We will take it under consideration later and see whether or not we wish to call the witness.
THE PRESIDENT: Very well, Dr. Gick. Proceed, Dr. Von Stein. And I don't think that you need to elaborate any further on what you have already told us with regard to the ladder episode. We all admit, I think, it is understood that if one is entirely unaware of the purpose to which a ladder is to be put -- unaware of any criminal use, that naturally he can't be charged with any crime. You seem to be still in a state of quandary about it. You don't think that anyone would accuse Romeo of having committed a crime because he went with a ladder to take Juliet away, do you?
DR. GICK: No Your Honor, I agree with you. I just would like to point out that the example chosen by me was a different one.
I merely concerned myself with one person and not with a number of persons who were supposed to be involved in a burglary therefore, the misunderstanding.
THE PRESIDENT: Very well.
Dr. GICK: The execution of the crime of killing did not yet begin with the internment of the jews, but in the very moment in which the order to kill was pronounced by the commander who had the authority to do this. Responsible for the killing is that commander who was connected with the order to kill and its execution. He is likewise responsible for such killings which were committed without his express order, which he could, however, have prevented.
In the case under consideration Sandberger gave.. the order to intern the Jews, This can possibly be considered in itself as a delict within the meaning of International Law. On the other hand, the internment is no act pertaining to the execution of the killing which took place at a later date. If Sandberger had approved of the later killing, a (punishable) preparatory activity could perhaps be seen in the internment, Since he disapproved, however, of cases Sandberger did not participate in the execution of the crime of killing. On the one hand not by active commitment. For in both cases he neither participated in the issue, nor in the forwarding nor in the execution of the order. But he did not either by default as passive participation. For, in both cases he was not in a position to prevent the killing because of his being absent. More., over, he had expressly declared to Carstens that he did not approve of the Fuehrer Order and that he wanted to do whatever possible in order to keep himself and his Kommando out of this. In the case of Bleymehl, Sandberger did not know at all that Bleymehl was informed of the Fuehrer Order, and besides, in view of Bleymehl's chapters he thought he could be sure that the latter would by no means act independently.
THE PRESIDENT: Dr. Von Stein, as we see it now, the issue before the Tribunal is whether Sandberger knew that once he placed the Jews in the internment camp they would probably be executed, and the determination of that issue can only come from all the facts in the case. If it is not reasonable to suppose that he could have anticipated their execution, then there was no crime. If reasonably, as a normal thinking persons he could have anticipated that the act of internment was but one stop removed from the act of execution, then there would be criminal knowledge. Does that conform to your view of the law?
DR. VON STEIN; Yes, but I wish you would consider, Your Honor, that furthermore one must consider the compulsory situation in which Sandberger found himself. Sandberger had received the order, first of all, to carry out the killing. Sandberger did not carry out this order. Afterwards Jeckeln again threatened him that he would have to carry out these matters, and Sandberger always postponed it. In other words, Sandberger was faced by the question of what he would now have to do. He could not always keep on postponing the matter, but once he had to act in same form and then Sandberger weighed the problem what to do. On the one hand, he has to violate the right of liberty, namely, the internment; on the other hand, he would have had to order the execution as per order. While weighing these two problems, Sandberger chose the violation of the law of less legal value. There was no third possibility for him. It was excluded. When Sandberger was faced by this choice he believed that perhaps after all there might be a possibility that beyond that a further execution might perhaps be prevented, be it either that the order might be revoked or that other incidents would happen and this thought of Sandberger had been taken from his finger-tips. He thought that perhaps orders might be changed later on or that they might be revoked.
THE PRESIDENT: Very well. We understand your position thoroughly.
Of course, we have also the other feature as to whether merely interning the Jews was not of itself a crime, depriving these individuals of their human liberty. When we come to that, then we must consider the question of superior orders. The more fact that he locked up these Jews even without any thought of their execution would not of itself he an innocent act unless he was acting under what you might regard as compulsion and then we come into the field of the determination of the defense of superior orders.
DR. VON STEIN: Yes, Your Honor, Already before I have stated in my plea that perhaps the interment could he an international delict, but I have also pointed out how one could hardly consider internment under international law, I have also cited from the scholars who have commented on this question of the internment and who consider internment as permissible according to international law. But in principle I agree with Your Honor, and I also say that even if one says that Sandberger had made himself liable to punishment because of the internments one would still have to consider the compulsory situation in which he found himself, especially the superior order under which he acted.
THE PRESIDENT: That is the point we wanted to make. The deprivation of the liberty of any person without justification is a crime. We start out with that premise, the defense is that the human liberty was deprived only because of a compulsion, influence, a superior order, and of course that takes us into another field of discussion which, of course, will be resolved.
DR. VON STEIN: Yes. May I continue?
THE PRESIDENT: Please do. been in a position to prevent his subordinates from killing. For the order to kill was given by a higher superior directly and was executed by a subordinate of Sandberger.
Dr. Sandberger's membership in an organization declared criminal by the I M T.
Dr. Sandberger is charged with having belonged to organizations declared ciminal by the IMT.
1) as a member of the (SS) of the NSDAP
2) as a member of Office III, IV and VI of the Reich Main Security Office. Dr. Sandberger too, had been conscious of the criminal character of the organization which he joined.
1. Dr. Sandberger became a member of the SS only as a member of the SD. He was never a member "of the SS" in itself - irrespective of his membership of the SD. He was neither assigned to a unit (A "Sturm", a Standarte, or perhaps a staff of a higher command) of the "General SS", the political force of the SS, not to a unit of the Waffen SS, the Military branch of the SS. He came to the SS only via the SD and his "membership" in the SS is not thinkable and cannot be judged separated from his membership in the SD, above all it cannot be proved with regard to criminal activity and taking an active part therein, or taking a "consenting" part in crimes of others by approval or even by a mere membership, in consciousness of a criminal nature of an organization. He can only therefore as a member of the SD have belonged to an organization declared criminal.
2. Dr. Sandberger joined the SD in 1936. At the beginning he occupied himself there with the reporting on the so-called "spheres of life". It was sufficiently discussed during these proceedings of what nature this activity was.
I may be allowed to refer to all argumentations advanced by other defense counsel with regard to this especially to the exhibits and statements advanced by the defense counsel for the defendant Ohlendorf. Even the presiding judge himself stated in the course of the discussions on the SD reporting activity of a defendant during his activity as Chief of Office III in a Einsatzkommando that the lawfulness (consequently by no means criminal nature) of this activity is acknowledged. It is also shown that the SD most strictly opposed all features of public life which were contrary to an idealistic conception of National Socialist aims, including all kinds of excesses against Jews or other encroachments by the Party, by a disapproving manner of reporting. Neither at the date he joined the SD, nor during his membership could the defendant Sandberger therefore have been conscious of a furtherance of, much less of a participation in crimes. Add to this that from 1937 until February 1940, i.e. just the time during which the Nazis gradually proceeded to a policy of force, Dr. Sandberger really was only a formal member of the SD. He worked during that period in the internal administration of the Land Wuerttemberg and in the Reich Student Leadership, and from October 1939 onwards in the Immigration Center. For the rest, the SD never identified itself with this policy of the NSDAP which resulted in an increasing distrust towards its members, finally - as was shown by the direct examination of the defendant Ohlendorf - even in an actual prescription by these forces which more and more governed the Party machinery (as f.i. Goebbels, Ley and Bormann, finally the formal head of the SD himself, Reichsfuehrer SS Himmler, and the Chief of the Security Police and the SD). Of all things, the later "abandoning" of the SD and its members by the special top command, which the SD had jointly with the G on oral as, the Waffen SS, the State Police, the Criminal Police, etc.
, shows the singularity of the incorporation of this intelligence organization into a formation which had its control agency in the Reich Security Main Office. At all events, the theory of a criminal activity, participation in or furtherance of crimes by Office III (SD Inland) and its subordinate agencies cannot be maintained after the evidence produced in this trial, since these indeed directly opposed and unlawful development of the Party activity. other agencies and their subordinated agencies committed or supported any criminal activity or whether their members even without any personal participation had to be or could be aware of any such activity by branches of their agencies. In any case, Dr. Sandberger had not, could not and was not obliged to have become aware of any such activity by other offices even after he had been appointed Referent of Office I in the Reich Main Security Office, Due to lack of any criminal intent and actions of the Security Service, Dr. Sandberger had also no cause to leave same up to the beginning of the second World War, but he endeavored to bring about his release after the war had started in order to serve in the army and to do so he removed first of all the impediment which consisted in his rheumatic ailment. But these endeavors of his were blocked already by the then valid strict order against any withdrawal from service, Membership in the SD was not voluntary any longer; release was now only and alone at the discretion of the common high command, shared also with other semi-military and military organizations, which extended their compulsory orders intended for organizations of this kind, also to the SD, entirely unsuited to this by its nature.
The facts about the impossibility of a withdrawal from this time on, were proven by me in a number of testimonies; I refer in this instance to these exhibits contained in the Document Books. The Einsatzgruppen- and Kommandos were then formed for the campaign against Russia and Dr. Sandberger was ordered to Einsatzgruppe A as Commander of SK la. As a member of the SD it was to him in no way discernible or to be expected beforehand, that for a member of the SD every anything else but purely informational, especially police executive functions could come under consideration, for the one reason, that the SD had a common High Command with other organizations. Sandberger had no knowledge at all about the tasks of Einsatzgruppen before he was detailed for duty. Valid for his detail were regulations regarding police units on special duty. Insubordination was threatened with severest penalties by SS and Police Courts. Due to his enforced activity with a Sonderkommando Dr. Sandberger became aware of measures forming the basis of these proceedings. He himself however has refrained from any criminal activity, Actual participation in a crime is therefore not the case. His membership, while aware of criminal plans and acts of others, was nevertheless compulsory, it could not constitute any participation or activity. Despite of this Dr. Sandberger proved his intention to quit his activity. From the end of 1941 Dr. Sandberger tried 7 times to get released for service in the Armed Forces, always without success. In this respect I refer to the testimony of the witness Spengler and to the testimonials in this respect submitted by me as evidence.
Verona, Italy, he was finally able to return to mere SD reporting activity in the scope of which Sandberger acted now as before neither criminally, nor was he able to gain any knowledge about such an activity of others there, the SD had remained true to his rejection of such active or passive participation. He was now in his capacity as an SD member also under the authority of SS and Police jurisdiction, to which also SD agencies were subject.
Dr. Sandberger was finally yet head of a group in Office VI of the Reich Main Security Office, in this position he took care of technical administration tasks, he came into contact with the relevant tasks of the office in connection with the "Egmont Report". But just this contact shows again no characteristics of criminal implication, sanctioning of such an activity or the awareness of participation only by membership. On the contrary it was the aim of this report to make highest quarters well inclined to an immediate cessation of hostilities at the price of capitulation, by giving a clear picture of the Reich's hopeless state. connection with the foreign news service operated by it, should ever have been in contact with criminal intentions or a criminal activity, then this was surely not the case from the year 1944 on, the year in which Dr. Sandberger took over his post there. participation in such an activity, favoring, or conscious support due to mere membership while aware of such acts as a member of the SD or the Office VI of the Reich Main Security Office; do therefore not apply to Dr. Sandberger. But mere membership without these characteristics can not be liable to punishment.
His membership after the 1 September 1939 was besides not voluntary, nor his membership of a Sonderkommando either. Valid is in this respect what caused the IMT to exempt certain groups of persons from membership in criminal organizations.
Exempts must be those persons who "are drafted by the State for membership in such a manner that they had no choice left. not made himself liable to punishment in the sense of Count I, II, and III of the indictment. I beg the honorable Court to pay due consideration to this result of the trial by a just sentence.
THE PRESIDENT: Very well, Dr. Koessl.
DR. KOESSL: Attorney for the defendant Ott.
M a y i t p l e a s e t h e C o u r t ! this trial is concerned with the crime of genocide, which in the theory of the Prosecution was incited by the fundamental teachings of the Nazi doctrine. The Prosecution logically requests that the Tribunal, by imposing a punishment in accordance with international law, will confirm the fact that human beings have the right to live in peace and dignity, whatever their race or their religious faith may be. The prosecution, therefore, does not raise the charge of murder within the meaning of the facts constituting this crime in national legislative codes. None of the defendants is charged in the Indictment with the murder or mistreatment of any one specific person. If this were the case the Indictment would doubtless name the presumed victim.
criminal act covered by national penal code, but it does not base the Indictment either on par. 211 of the Reich Penal Code or on the corresponding paragraphs of the Soviet Penal Code as the law governing the place of the crime, but apparently only wishes to cite thereby a fundamental criminal act, just as reference was also made in the course of the trial to God's 10 Commandments as the root of the moral conceptions of the civilized world. These legal and moral Prohibitions against killings are the foundation, not the subject matter, of this trial. for persecutions which "attain the proportions of national campaigns" and which "are intended to exterminate large groups of human beings." whether there was any participation in an extermination program and if so of what kind it was. For the accused members of the Einsatzgruppen these questions are identical with the questions: 1) Was the Fuehrer Order forwarded to the Einsatzgruppen in Pretsch - Dueben - Schmiedeberg an order for extermination? 2) To what extent and in what way did the individual defendants participate in the execution of this order? The first question will be discussed by my colleague, Dr. Aschenauer, both for the defense as a whole, and also the significance in criminal law of the order in general and the Fuehrer Order in particular, insofar as it becomes of acute importance for the defendants.
the defendant Ott which appears to justify the conclusion that Sonderkommando 7b executed 27 Jews on the basis of the Fuehrer Order while under Ott's command. This document is to be found in Document Book II B, English p. 60, German p. 52, bears the number NO 3276, and is submitted as Exhibit 66. This Operational Situation Report No. 194 of 21.4.1942 contains a list showing the number of executions which the individual Kommandos of Einsatzgruppe B presumably carried out between 6 and 30 March 1942, in which the number of persons killed by each Kommando is divided up according to groups of persons, from the description of which the reason for the execution, can be understood. evidence showing that these Operational Situation Reports were exposed to many sources of error and therefore possess only qualified value as evidence. The Operational Situation Reports represented summarized reports of the RSHA, which for their part were again based on summaries Which were prepared on the staff of the Einsatzgruppen. Each revision changes the picture of the original report, especially if it is combined with abbreviations and ideas directed at some specific purpose. that Operational Situation Report No. 194 does not constitute any proof that Sonderkommando 7b executed 27 Jews between 6 and 30 March 1942.
1. In the first place, the given period of time from the 6th to the 30th is not named as a reporting period in any other month, and as a matter of fact the regular reports were prepared on each occasion. in the middle and at the end of a month for the preceding 14 days, but never for 3 weeks or for 24 days.
2. This unusual report period is given here for all Kommandos of Einsatzgruppe B, so that it is apparently an arbitrary summarization by the staff of Einsatzgruppe B or the RSHA.
3. Through the submission of Doc. Book 1 for the defendant Ott it was proved that there were many gaps in the reports of Einsatzgruppe B between December 1941 and April 1942 and that no figures at all on executions were reported in this entire period up to Report No. 194 of 21 April 1942, although in some reports occurrences were reported which doubtlessly led to executions.
This very much speaks in favor of the supposition that the figures given in Operational Situation Report No. 194 also include executions which dated back before the time given; presumably these figures include executions which took place after the last numerical report in December 1941.
4. Activity and Situation Report No. 11 covering the period of 1- 31 March 1942, which has been submitted in Ott Doc. Book II as Ott Document and Exh. 4, does not mention, any executions within the area of Sonderkommando 7b.
5. The strongest proof for the assertion that it was impossible for Sonderkommando 7b to have executed 27 Jews on the basis of the Fuehrer Order during the period from 6- 30 March 1942 is furnished by the defendant Ott's own statement on the witness stand (transcript English p. 3744, German p. 3805 et seq.). Ott proved that he has a good memory and recalled many details. It is clear that just the events during the first month of his activity in Russia remained particularly vivid in his memory and that therefore he would have to remember such a large number of executions as is mentioned in the Operational Situation Report No. 194. (See also Engl. transcript P. 3793, German P. 3856). cross-examination by the Prosecution again confirmed possibly that not before 16 March 1942 did he take over responsible Command of the Sonderkommando 7 b and that up until then his predecessor Rausch made all decisions, held conferences with Wehrmacht agencies and signed reports (Engl. Transcript P. 3781, German P. 3843). Even supposing the Operational Situation Report No. 194 was correct, the possibility would still remain upon that the executions mentioned there, were ordered by his predecessor Rausch, or under Rausch's responsibility during the first half of torch, without the defendant Ott knowing about it, since he was then only getting acquainted with his work and did not overlook the Commando yet and therefore also had not yet taken responsibility.
outline of his activity in Russia, and disproved all misleading interpretations of his affidavit of 24 April 1947 NO 2993 - (Pros.Exh. 67 in the Doc. Book II B, Engl. P. 64, German P. 57.) He has stated that his Commando 7b has during the whole time he was in command of it, which after deduction of 2 longer interruptions amounted to approximately 6 months, executed not more than 80 - 100 persons after careful investigations. (Transcript Engl. P. 3733 - 3735, 3741, German P. 3795 - 3798, 3803). testimony with Mr. Wartenberg and during cross-examination, forbidden his Sub-Commando leaders, to act independently, and ordered them to submit to the Commando all protocols and interrogation records for reexamination. Minor offences were punished with imprisonment differentiated in time, so that the degree of guilt could find proper consideration, (Fig. 7 of the affidavit Ott, Pros.Exh.67).
The Execution of only 80 - 100 persons during all of Ott's activity in a distinctly partisan area, the concientious reexamination of each individual case and the imposing of differentiated detention penalties in minor cases, show that Ott did not consider his unit as an extermination instrument for Asiatic peoples and that he did not use it as such. initiative of his own. He did not carry out any action to find Jews and execute them after seizure for the reasons mentioned in the Fuehrer Order. (Transcript English P. 3718, German P. 3799). To be sure, the Army-territory was in general considered as already free of Jews, when Ott came to the Sonder Commando 7 b, but yet it was known that here and there Jews kept themselves hidden. If Ott had been a man of this kind as the opening speech of the Prosecution characterized the defendants, then instead of the numerous, dangerous reconnaissance actions against the skillfully fighting partisans he would at least have carried out a few safe searching raids for Jews, Ott did not search for Jews and also he did not have defenseless old men and children executed.
The few women executed were active partisan fighters, (Transcript Engl. P. 3760, German P. 3822). that Jews were seized only in connection with sabotage -, partisan - or. communistic units and that about 20 Jews were executed on the basis of the Fuehrer Order. (Transcript Engl. P. 3753, 3754, German P. 3816/17). it did not become clear, whether these Jews were shot only bee use of their race or because of partisan activity, At any rate after the crossand re-direct examination the President asked some more questions, obviously to clear up this matter. (Transcript Engl. P. 3791 ff. part. P. 3793 - 3795, German P. 3853 ff, especially p. 3856 - 3858). Operational Situation Report No. 194 were not executed under his respossible Commando leadership and that the total number of 20 executed Jews admitted by him extend to his whole activity in Russia, there with present the total number. He repeated his previous statements that all Jews were seized in Band - territory and that there the Jews were doubtlessly very capable of defense. To the question: "But some were entirely defenseless?" Ott answered: "Yes, some were among them". (England Transcript P. 3795,... German P. 3857/58).
This is the central question in the case Ott: Do these facts meet the specifications of a crime against humanity according to Count I of the Indictment and of War Crimes according to Count II of the Indictment? of Communist agitation and sabotage troops or some other Partisan groups. Since Ott could not advance into the heart of the Partisan area with his small forces, it was without doubt one of those active harrassing units which the Partisans had operating on the main railway stretches behind the lines.
There were neither children nor old or feeble persons among those captured, only people of both sexes who were capable of carrying arms. carry their arms openly, and also did not abide by the rules of warfare, they could, according to existing rules of warfare, be shot after their capture. Since the Presiding Judge asked the defendant Ott on the witness stand if there were also defenseless persons among the Jewish Partisans, I would like to refer here to the changeable Partisan tactics, which depended completely on surprise and the most elaborate use of deceit. Harmless appearing women suddenly drew hidden weapons and shot down unsuspecting soldiers. Unarmed Partisans in civilian clothes did intelligence work, signalled to the riflemen who were hidden in perfectly camouflaged ambush positions by means of unobtrusive signs and, after completing their job, themselves joined the armed conflict. These scouts and messengers can't be called "defenseless" even when, for the moment, they are unarmed. The really defenseless people stayed in the heart of the Partisan territory, where such small reconnaissance units such as Ott led, could not go. Stronger forces usually found empty nests after marching for days, as in operation "Polar Bear",Ott Exhibit 5. through the statements of individual members of same or through our own observation must, under such conditions, be sufficient proof in regard to those members, too, who refuse to make a statement. I, as defense counsel for the defendant Ott, was astounded when he, on the witness stand, unexpectedly admitted applying the Fuehrer Order in 20 instances. own earlier motives, for Ott has emphasized, now as then, that these 20 Jews were also captured as Partisans. The meaning of his statement is merely that he could not show Jewish Partisans any mercy, because the Fuehrer Order had authoritatively established the fact that the entire Eastern Jewry was involved with the Bolshevist system in such a way as to endanger the security and that Jews were even to be shot if no connection with the Partisans could be proved in the individual case.