The fault in this rests neither with the defendant nor the interrogator. If the interrogation had come after an improvement in the nervous condition of the defendant, then declarations would have been made by the latter readily which he would have had no occasion to withdraw and which he would today have had to leave unaltered for and against himself. His declaration in the first affidavit dated 2 July 1947 according to which he commanded the Vorkommando Group Staff until 2 Sept. 1942 may be cited merely to illustrate how little Klingelhoefer, in the case of the interrogation in question here, could actually survey the position during his stay in Russia. This quite obvious inaccuracy in a very essential point has been remedied at the instigation of the Prosecution. Exactly in the same way as this discrepancy arose, a series of further false assertions are contained in this declaration the objective inaccuracy of which was not noticed by the defendant when signing just because of his condition which gave rise to indifferences Because of the correction suggested by the Prosecution, the defendant Klingelhoefer has now, however, undertaken, on his own, a complete correction in the form of a new affidavit, while expressly withdrawing the original affidavit, which merely for technical reasons was only put down in writing and signed by him in the presence of Herr Wartenberg 14 days later, namely on 17 Sept. 1947. ally from the fact that Prosecution Exhibit No. 124, that is, the affidavit of Klingelhoefer dated 2 July 1947, must be eliminated in the evaluation of evidence by the honorable Tribunal. witness stand and in his 2nd only valid affidavit of happenings in Mstislawl and Tatarsk were to be discussed in detail once more. I should like to draw particular attention to one point only, however.
The shooting of the Jews in Mstislawl and Tatarsk took place on the sole responsibility of Hauptsturmfuehrer Noack. Noack received an express order to do it directly from the Chief of Einsatzgruppe B at that time, Nebe. Noack was the only commander to be considered for this since his special section was responsible for dealing with Jewish matters. The witness Vetter declared expressly in cross examination by the Prosecution that this very Noack was known even among the cirilian population as Commissioner for Jews. Page 5256 of the German, page 5165 of the English Record. This unequivocal statement affords sufficient actual proof for the fact that Hauptsturmfuehrer Noack must have been encrusted with the carrying out of the executions of the Jews, otherwise, he would not have received such a title among the people. In the same way, the accuracy of the defendant Klingelhoefer's statements with reference to the description of events in Mstislawl and Tatarsk can be concluded from this: logically, this is also a confirmation of the fact that his statements relative to this on the witness stand correspond to the truth like his statements in the Document Klingelhoefer No. 3, Exh. No. 3. Consequently, it is also in conformity with the facts that the sole task of the defendant in Mstislawl and Tatarsk was to look after the supply of furs as a result of appropriate negotiations with the Russian mayors of these places. This task is merely in keeping, too, with his capacity as interpreter which made him appear suitable for this. cludes Klingelhoefer's order to investigate a report concerning the escape and mutiny of the Jews in the Ghetto in Tatarsk. For this the Prosecution has offered Document No. NO-3160 Exh. No. 65 as evidence. It is the Operational Situation Report No. 124 dated 25 Oct. 1941 in which it is reported that in Tatarsk, because of noncompliance with orders of the German Security Police, all male Jews as well as three women were shot.
makes it possible to conclude that the defendant Klingelhoefer was mixed up in this. Right from the start he freely admitted this. Furthermore it is to be stated that in the Operational Situation Reports submitted to the Honorable Tribunal as evidence in the case of actual executions of Jews in the sense of the Fuehrer Order, explanations are never given as to why these Jews were shot. The reason for this was the existing Fuehrer order and no further commentary was required. In this report, Prosecution Exh. No. 65, contrary to this other method, a detailed reason is given for the shooting of the Jews in which the fact is specially stressed that the non-compliance with the orders of the German Security Police resulted in the shooting. From this very circumstance which without doubt is striking it can be assumed that in these incidents it cannot be a question of execution of the Hitler Order in the sense of the Indictment. Now, the defendant Klingelhoefer gave a detailed description of the events on the witness stand which he confirmed as accurate on account of an investigation thoroughly carried out in Tatarsk. According to this, the cause of his being sent there was not to be looked for in the fact that an action against Jews was supposed to have been started by the Chief of Einsatzgruppe B, the cause of his commission was simply a report of the mayor in Tatarsk which the latter had sent to Einsatzgruppe B by a special messenger. This report contained the confirmation of the mayor that all Jews and Jewesses of the Ghetto in Tatarsk head left it and had threatened to kill the mayor of Tatarsk along with his police. Therefore, the mayor implored help and support in the quickest way, since he was no longer master of the situation. in connection with his order to procure furs. Therefore he knew the place and its surroundings. He knew the mayor, too, and, apart from that, because of his knowledge of the Russian language, was in a position to ascertain most accurately by direct contact, with those concerned in how far the report sent by the Russian mayor of Tatarsk corresponded to the true state of affairs.
It was therefore quite the obvious thing to dispatch the defendant to Tatarsk with the order to confirm it accordingly. Had an action against Jews been planned, then the defendant would have been out of place here, because no confirmation of any guilt and therefore no kind of investigations would have been required. Nobody would have been required who had command of the Russian language. Therefore it was merely a question of ascertaining by thorough investigations whether the Jews had, in fact, left the Ghetto and threatened the mayor, that is, whether they had violated the prohibition which was expressly imposed when the Ghetto was established, to leave the Ghetto without special permission, although death was threatened in the event of this violation. The interrogations actually carried out not merely confirmed this state of affairs but reveal ever and beyond that that the Jews had sought contact with the partisans and established it. Support and strengthening of the partisans was likewise threatened with death by an Armed Forces Decree. Then he arrived in Tatarsk the defendant Klingelhoefer was only able to seize 30 more male Jews, while a considerably larger number of women and children could still be arrested. According to the interrogations these 30 Jews represented only a relatively small proportion of male Jews previously to be found in the Ghetto, By far the greater proportion of male Jews had fled and, according to the statements of the mayor, of the remaining Jews, and of the Jewish women who were interrogated, had joined the partisans, who, as we know from experience, were hiding in the pathless woods which expended close, up to Tatarsk. It was extablished, in particular, that before the Jews escaped from the Ghetto, three Jewish women had already contacted the partisans, that these three women had returned to the Ghetto again and had goaded on the male Jews to escape from the Ghetto and to join the partisans. Therefore, it had been planned in advance that a small proportion of the male Jews was to remain in Tatarsk together with the women and children to support the partisans as spies and informers by means of informations about the German Forces.
This plan, as a result of the remaining behind of the previously mentioned 30 Jews, had thus been practically carried out. with the partisans had been established. The Jews who had joined the partisans had undoubtedly told them that a part of their men had volunteered for espionage services and, the willingness to support the partisans which had actually taken place, constituted a menace to security, to be regarded as absolutely serious, and therewith, a violation of the afore-mentioned Wehrmacht decree. In connection with the escape from the Ghetto and in view of the threat to the mayor, the defendant Klingelhoefer had to consider it justified to carry out the capital punishment as threatened in the provisions of the security police. The allegation of the Prosecution that the Jews were concentrated in the Ghetto only for the reason that in this manner it was easier to shoot them, is not true. Against this, one must point to the fact that the Fuehrer Order, the wording of which had already been changed at that time, had already beer, carried out by Noack in Tatarsk, since at that time he had executed the old Jews and those unfit for work in accordance with the direct order by Nebe, mentioned before under paragraph 1). The defendant Klingelhoefer had no order to carry out the Fuehrer Order, neither did he have an order to shoot the Tatarsk Jews under all circumstances. It was his task to order an execution as punishment only then if it was to be established that the Jews had actually acted in violation of the security police regulations. Consequently, the defendant ordered those Jews to be executed whom, on the basis of his thorough interrogation, he had to regard as offenders of the security police regulations.
He arranged that the rest of them, and those were the women and children, be returned to the Ghetto as not guilty. Three Jewesses, however, had also to be found guilty as the instigators of these offenses. One cannot accuse the defendant of the fact that he has failed to mention the shooting of these three Jewesses in his affidavit. When questioned as a witness in his own defense he himself declares to this effect that he forgot them. One ought to believe him without hesitation in regard to this facto There would be no reason for the defendant to admit frankly the execution of 30 Jews and consciously conceal the shooting of three women. In both eases the defendant had to regard the executions as necessary and also justified on the basis of the existing regulations. He therefore had no reason for withholding the facts about the last mentioned execution. Neither could one imagine the reason that precisely three women only were subjected to execution, while a considerable number of Jewish women and children were returned unharmed to the Ghetto, if there had not been special charges against these three Jewesses which justified their shooting. As I have already mentioned before, the wording of the pertinent Operational Situation Report is not in contradiction to this either. On the contrary, it corroborates in a brief form the most important statements made by Kingelhaefer For the charges of violating the regulations of the security police or, as it is expressed in the report, "not complying with the orders of the German Security Police", could be interpreted in no other way but non-compliance with the order to leave the Ghetto only with permission and, to refrain from any contact with the partisans. If the rest of the details were omitted in the report it is not the defendants fault. It has not been ascertained as to how the Operational Situation Report No. 124, Prosecution Exhibit No. 165 came about in regard to the. point here in question. It may have been made on the basis of a report by Nebe and abbreviated accordingly, the reason for the shooting of the Jews nevertheless having still been preserved.
It may be left in the balance to determine what actually happened. Only of importance is the fact that the contents of the report are in no way contradictory to the defendant's statement made as a witness in his own defense. A contrary conception would only constitute a literal and forced interpretation of the report and would by no means do justice to the real circumstances about which only the defendant has given, and was able to give, the true explanations. the defendant Klingelhoefer has never been ordered to execute the Fuehrer Order, neither previously nor later on, according to which he rather was constantly occupied with the preparation and utilization of documents, by making use of his knowledge of languages, and in view of his clearly proven zeal for the truth, Prosecution Document NO-3160, Exh.
65 can by no means be used as evidence against him or against his statements. in this case too, the defendant has not contributed to the execution of the Fuehrer order but has acted by applying the regulations which were in force at that time. That he also was personally convinced of the lawfulness of his actions must be believed without hesitation. Control Council law No. 10. In my closing speech on behalf of the defendant Steimle I have already explained the nature and extent of the legal objections which may be raised against the application of this law. In this connection I have es pecially emphasized those parts of Control Council Law No. 10 which establish a now law that, in view of the generally recognized principles of law, cannot be applied in this ease either. I have especially pointed to a number of forms of participation which do not exist in the continental criminal law and especially not in the German criminal law. It is irrefutable that the defendant Klingelhoefer, during the period decisive in this connection, was only subject to German criminal law. The judgment of his conduct can and must only be passed on the basis of the circumstances prevailing at that time. This applies to the actual circumstances as much as to the legal system he was subject to. article II, paragraph 2c to 2e of the Control Council Law No. 10, could be applied in this case, the result would likewise be that, on the basis of' these provisions, the defendant had not become guilty either. No evidence could be produced against him that, by giving his consent, he had participated in the commission of any sort of crimes or that he was involved in any way in the preparation and execution of such crimes. His position within the Einsatzgruppe B and its affiliated organizations was always asubordinate one.
His position was not even outwardly connected with the crimes which the men in the dock have been charged with by the Prosecution In the same way he cannot be regarded, in the sense of Article II, paragraph 2e, as a member of a group or organization which were involved in the commission of the aforementioned crimes, With reference to this point I particularly like to refer to the statements which I made in this connection in my final plea on behalf of the defendant Steimle. The legal and factual conditions, cited there, which could made the defendant a member in this sense are in no way present in the case of Klingelhoefer. On the basis of an order from his superior office he had to perform his assigned duty as an interpreter and specialist on reporting, the nature of which has been described in detail, and it did not matter in this respect whether he was willing to do this or not. The defense has produced evidence for the fact that even the missions ho was to carry out and which in a few cases took him outside of his office, were absolutely within the scope of his assigned duty as an interpreter. During the period of his service in Russia it could hive never occurred to the defendant through his activity that his work constituted a necessary chain in the realization of crimes or the promotion of such crimes. In consideration of his general attitude he would have never included this result into his intentions if at all he had thought of such a result. unless evidence has been produced to the contrary. This proof must preclude any reasonable doubt. The evidence produced by the Prosecution does not meet this demand. The personality of the defendant Klingelhoefer and the facts which can be gathered from his development are clear proof of his decent and honest character. On this basis he hrs performed his assigned duty and, owing to his personality, he was not put into the position by his superior to argue about orders the execution of which he would have regarded as incompatible with his conscience. I am convinced that the Tribunal, in judging the case of Klingelhoefer, will arrive at the conclusion that the defendant is not to be found in any way of crimes against humanity end war crimes.
either as a perpetrator or participant.
According to Count 3 of the Indictment. the defendant Klingelhoefer is furthermore accused of his activity in the SD and in Section VI of the Reich Main Security Office. It is beyond doubt that he was a member of the general SS, a member of the SS-Special formations and the SD since 1934 and furthermore belonged to Section VI of the Reich Main Security Office. In respect to this point I again. refer to my explanation in the final plea on behalf of the defendant Steimle. During his activity in the aforementioned formations and in Section VI the defendand had never even the slightest possibility to presume that these organizations were used for criminal purposes. The Einsatzgruppen and their branch organizations could not convey to him such an opinion either because in front areas they were under the control of the army commanders. which was also expressly acknowledged by the International Military Tribunal, and, because as units of a special character, they could not make him think that their activity would some time in the future be imputed solely to the SD. Having once been a monitor of the SD. the defendant was no longer in a position, especially in times of war, to decide by himself about his future assignment, since he was subject to the orders of his superiors. It must be left to the judgment of the Tribunal to what extent a personal guilt can be ascribed to the defendant Klingelhoefer with reference to Count 3 of the Indictment. By judging the fateful events of that time this guilt cannot be a grave one by any means.
Mr. President. to remind the Tribunal once more of the words I have spoken at the beginning, and to express the request not to forget the broad scope within which the events took place which were here presented to the Tribunal by the Prosecution.
Only a fraction of the great number of officers who served in the Einsatzgruppen is present here in the dock. They must not necessarily be those who are the ones really responsible for these things. others whose orders they had to comply with as soldiers. I an convinced that the Tribunal, in consideration of all these circumstances, will come to a just decision.
DR. FRITZ (For Defendant Fendler): Your Honor, Honorable Judges! Einsatzgruppen and Einsatzkommandos, besides their other tasks, to commit acts which doubtlessly violated the recognized laws and customs of war as well as humanity. The obligation towards the great number of innocent persons who fell victims to this order may be the cause for some persons to believe a collective responsibility and a vicarious liability to be justified. But nothing must be allowed to prevent us lawyers from examining in a dispassionate and objective manner the question of criminal responsibility of each of these defendants. to lead to the result that he did not participate in any way either in the planning or in the execution of this order and that no punishable membership in any criminal organization can be laid to his charge. legal view of mine. committed, between May 1941 and July 1943, as an officer and deputy chief of Einsatzkommando 4b, crimes against humanity as defined in Article II, par. 1c of Control Council Law No. 10. He is charged furthermore, in Count II of the indictment, with having committed simultaneously, by these same acts, between 22 June 1941 and July 1943, war crimes as defined in Article II, par.
lb of the sane law. He is finally charged, in Count III of the Indictment with having been a member of the SS and the SD after 1 September 1939, - Organizations which have been declared criminal by the International Military Tribunal (IMT). to these proceedings, I positively object to the juridical view of the Prosecution that it could not be expected to assume the full burden of proof for its charges - also in the case of Fendler.1) If, after mature deliberation I decided to put my client on the witness stand, I did not 1) See transcript of 29 September 1947, English version page 57, German version page 63. do it in order to assume in thisway the burden of proof, but in order to offer the Tribunal the possibility of convincing itself that Fondler's work and appearance in the East does not have to shun the light. The burden of proof for his alleged criminal culpability rested solely with the Prosecution. To be sure, the latter used a total of seven documents1) for the support of the charges contained in the Indictment, but it did not produce, as it should have done, the proof in any of these counts. 1) Doc. No. 4144 - Exhibit 142, Doc. Book III C, Doc.
No. 2938 - Exhibit 44, Doc. Book II A, Doc.
No. 2934 - Exhibit 78, Doc. Book II C, Doc.
No. 2830 - Exhibit 72, Doc. Book II C, Doc.
No. 3155 - Exhibit 38, Doc. Book II A, Doc.
No. 4958 - Exhibit 143, Doc. Book III C, Doc.
No. 4999 - Exhibit 202, Doc. Book 5 - C. to the contents of the Indictment, no longer maintained that Fendler had been deputy chief of Einsatzkommando 4b. It rather commented in the source of the trial, that he, and I quote:
".....often carried out the functions of a deputy of the leader of the unit". 2) client's own affidavit.
3) But this interpretation is false, For Fondler, under No. 3 of his affidavit only stated, and I quote:
"within the Special Commando, (Sonderkommando 4b) I was, Hermann, the senior officer.
I have never been officially designated as a deputy of Hermann:
I have, however, taken charge of official matters during his absence". in no way be construed to the effect that Fondler ever was "deputy chief of Sonderkommando 4b". The Einsatzkommando 4b did not have any deputy commando leader, as, by the way, was the case with various Einsatzkommandos and at times even with Einsatzgruppe D.1) Fendler was neither designated as deputy nor did he ever have this function.
This is shown by the affidavits ofHeyer2) raid Martens3) and, above all by the one of Koenig4) who was with the Einsatzkommando 4b during the whole of the assignment of the defendant Fondler, who worked together with Fondler and therefore knows the conditions precisely.
Among other things Koenig stated and I quote:
"Hermann had no deputy. Once, when he was absent from his 2) Session of 30 September 1947, English transcript page 212, 3) Affidavit Fondler of 27 June 1947 - Doc. No. 4144 - Exhibit 142, Doc.
Book III C, English transcript 55. German transcript page 89, 1) See statement Ohlendorf in the session of 9 October 1947, English transcript page 572, German transcript page 576/7. 2) Fendler Doc.
Book I, Doc. No. 11 - Exhibit 8. 3) Fendler Doc. Book I, Doc. No. 10 - Exhibit 11. 4) Fendler Doc. Book I, Doc. NO. 9 - Exhibit 9.
the special orders issued by Hermann. In such cases, routine which at times was Fondler.
This officer never had complete directives to the individual specialists.
I can say with certainty that Fondler actually never gave any such directives". that during his assignment he had never been a fully authorized deputy of the Kommando leader and that in fact he never exercised the functions of the Kommando leader.
Besides, there never had been an appointed deputy for the kommando leader at all In case of the Kommando leader's absence, the chiefs of the several sections had made their own necessary decisions.1) 1) Session of 13 December 1947. English Transcript page 4010, German Transcript page 4080/81.
In the further course of my elaborations I intend to treat in more detail the professional trading of my client. Neither was he trained in executive work now was he ever entrusted with executive tasks. He therefore was not competent to give instructions to the chief of Section IV, who was an export in executive tasks. As can be gathered unequivocally from the affidavits of Schoenborn, Hanke, Pfoser and Koenig, Fondler, owing to his correct and reserved nature, was in no way inclined to meddle on his own initiative in affairs for which he was not authorized. These facts too lend credibility to his statements. It would not be sound to point out his rank of service alone in this connection. For in case of an objective non-competency, the missing authorization cannot be automatically compensated for by a higher rank in the service. It rather would have been the task of the Prosecution to furnish the proof that Fondler had the full power of command even in one single case during the Kommando leader's absence, and thus had the possibility of giving appropriate instructions to the executive. But on this point the Prosecution did not challenge the statement of my client in cross-examination but rather evidently accepted the correctness of his description. Only in the rebuttal the Prosecution produced the affidavit of Karl Hennicke, dated 4 September 1947. Among other things, Hennicke declares in this affidavit that the Einsatzkommando 4 b had first been commanded Braune. But, as Fritz Braune did not arrive until after Hermann had been relieved, the Einsatzkommando 4 b had been without a chief for a period of 2 - 3 weeks. During this interval, he says, the Kommando had been under Fondler's charge. In gross contradiction to this statement, Hennicke has declared in another affidavit, and I quotes:
"It is not known to me that Fendler was the deputy of the Kommando leader; he did not appear as such in reports or in group conferences."
End of quotation. Finally, Hennicke expressly revoked, in a third affidavit, the statements he made on this point in his affidavit of 4 September 1947. The complete falseness of his statement in the affidavit of 4 September 1947 results alone from the fact that Fendler left the Einsatzkommando 4 b for good already before Kommando leader Hermann. On the other hand, the correctness of Fendler's statements in underlined by the fact that -- at least during the entire period of Fendler's assignment -- there was no need for a deputy because Kommando leader Hermann, during the time from the beginning of July until early October 1941, was neither ill nor absent for any other reason from Einsatzkommando 4 b for any length of time, In this connection I refer to the affidavits of Koenig and Martens as well as to the statement of my client in direct examination. After all this, there is no need for any further evidence that Hennicke's affidavit of 4 September 1947 is in no way apt to prove the assertion by the Prosecution that Fendler in several cases had assumed the functions of a deputy leader of the Einsatzkommando 4 b, or to disprove the contrary statement of my client which is identical with the statements of several witnesses. When the Prosecution presented the case of the defendant Fendler in the session of 30 September 1947, it referred to four Reports of Events in all. As far as concerns Document NO-2830, the Prosecution pointed out that the Einsatzkommando 4 b had killed 186 persons in Poltava, and that Fendler had also been in Poltava. On the other hand, the main trial has clearly proved that Fendler at that time was not at all with the Einsatzkommando 4 b, but was already back in Berlin at that time. This fact emerges unequivocally from the affidavits of Heyer, Koenig, Feder, Haefner, Hennicke, Schulz and Brass as well as from the statement of the defendant Fendler as a witness in his own case.
Therefore, these documents must be left out of consideration when judging Fendler's case. The other three Reports of Events -- Doc. NO-2938, NO-2934, and NO-3155 disclose among other things that Einsatzkommando 4 b has carried out executions in Tarnopol as well as in Krementschug. As the defendant Fendler stated in his own affidavit, that he had been in these places with the Einsatzkormmando 4 b, the Prosecution obviously thinks it has sufficiently proved his participation in these executions. I could not agree with this view of the Prosecution even if it were certain that the only task of the Einsatzkommandos consisted in the destruction of certain groups of persons. Even though I am forced to admit to my greatest regret that it has become evident in the course of this trial that, in compliance with an inhuman order by the Fuehrer, this was one of the tasks of the Einsatzkommandos, on the other hand the evidence has proved just as clearly that the Einsatzkommando also had other tasks to fulfill, Let me remind you of the fight against the partisans and the tasks which were purely within the domain of the Security Police. This results alone from the fact that the Einsatzkommando did not only consist of officers and enlisted men who had been trained in executive tasks, but for example also had experts of the Intelligence Service. Thus there were also specialists (Referenten) assigned to the Einsatzgruppen who merely dealt with intelligence tasks. I have proved by affidavits and by my client's statement as a witness in his own case, that he too, owing to his exclusive training, was only assigned and active as an intelligence expert. When Fendler was a young student and looking for employment in order to earn some money so as to be able to continue his studies he came to the SD by chance without even having had any knowledge of its existence at that time.
Owing to new economic difficulties he was unable later on to continue his studies and therefore remained with the SD. At first, i. e. from 1936 onward, he was employed with the then main sector (SD Oberabschnitt) Southeast in Breslau. from April 1937, he was consultant (Referent) for industrial counter-intelligence in the then SD regional sector (Unterabschnitt) Breslau. From March 1939 until the end of 1940 he was head of the SD Office in Olomouc. Towards the end of 1940 he became a candidate for the executive service and hence left the professional work of the SD, was transferred to office I of the Reich Main Security Office and began to study jurisprudence. The candidates for the executive service were ordered to the war theatre in the Fast an bloc at the end of May 1941. In Pretzsch Fendler was assigned to Einsatzkommando 4 b which had been formed there; therefore, he did not volunteer for this assignment by any means. According to his training Fendler was appointed III-specialist already in Pretzsch by the Kommando leader. That is quite natural because he was the only intelligence expert in the Komando. From the affidavits of Hennicke, Heyer, Martens and Koenig it can be seen that the Einsatzkommando 4 b did have a section III. In these affidavits it is explained in every detail which tasks belonged to the individual detailed duties of the defendant Fendler in his capacity as chief of this section.
Fendler has also commented on it in his direct examination. He described that it was his duty to gather and evaluate in the individual villages touched by the Einsatzkommando 4 b the information needed for his reports on political, national and economic conditions of Russia gained from the population and from files found by him. In reading the Reports on Events one can see in what detail these reports have been made. I particularly refer to the example in Fendler Doc. No. 22. If we consider that for these tasks he only had one associate and one interpreter at his disposal, his statement that his working capacity was completely taken up by these tasks seems utterly credible.
Fendler therefore was departmental chief III and never and in no way was active in the executive of the Kommando, i. e. Section IV, which was a completely independent department. Neither did he cooperate with this section by his reporting which did not deal at all with executive matters. For its own purposes, the executive maintained a separate Police Intelligence Service. If I said above that Fendler's working capacity was completely taken up by his activity as III-specialist, this naturally does not exclude his having been entrusted now and then in individual cases with one or the other military task, owing to the fact that Einsatzkommando 4 b was operating in the front-line area. But neither did these tasks, which I now intend to treat in detail, have anything to do with the executive. Thus he was also liaison officer with the 49th Mountain Army Corps. Only once did he become active in this capacity, namely in Trembovla, as he stated in his direct examination. At that time, upon instructions by the Kommando leader, he had established contact with the G-1 of this Army Corps and had obtained approval for the further advance of the Einsatzkommando 4 b. Finally, Fendler has twice been in charge of a small Vorkommando. According to orders, both times the main task of these Vorkommandos was to find quarters for the immediately following Kommando and to get the supplies ready. In the course of the main trial upon a corresponding question by the presiding judge, Fendler had the opportunity of giving detailed information on this matter. In these cases he was billeting officer and by no means the leader of a Teilkommando. I particularly emphasize this, especially during the period of Fendler's assignment, the Einsatzkommando 4 b, in contrast to other Einsatzkommandos, always operated as a compact unit under the leadership of the Kommando chief and hence was not divided into independent Teilkommandos.
This, by the way, was also one reason why sections III and IV in Einsatzkommando 4 b were able to operate independently from one another. Fendler's own statement on this matter, given in direct examination is confirmed by the declarations in the affidavits of Koenig and Heyer. Thus I have proved that, during the entire period of his assignment in the East, my client did not make himself liable to punishment -as a principal in the sense of Article II, paragraph 2 a of Control Council Law No. 10. He never had the full power of command, which was always in the hands of Kommando leader Hermann, he never worked in the executive, he did not participate in any execution and he did not commit any other action which would fulfill the provisions of this law. Neither has he been an accessory in the perpetration of such acts, nor did he order or incite them (Article II, paragraph 2 b of the Control Council Law). For I have proved that Fendler did not collaborate in executions or other inhuman actions either as III-specialist or as liaison officer or as chief of the Vorkommando. Moreover, my client did not give his "consent" to these acts in the sense of Article II, paragraph 2 c of the Control Council Law.