mando 4 b, which was involuntary, must be considered as consent. In the POHL verdict the Military Tribunal No. II has commented on this matter as follows and I quote:
"There is an element of positive conduct implicit in the word consent.
Certainly, as used in the ordinance it means something more than not dissenting."
End of quota But FENDLER never showed such a positive attitude.
He neither was chief of the Kommando nor deputy chief nor leader of the executive section, As III-specialist he was not in a position to give any instructions to Section IV, nor did he ever do this, He therefore neither had the power nor the authority to order executions or to prevent their being carried out. According to the decision of Military Tribunal No. II in the POHL Trial, FENDLER therefore was not a person whose "knowledge of the fact coupled with silence could be interpreted as consent." some other way. On the contrary, FENDLER has told us, in the course of his direct examination, that he had objected to inhuman actions. From what has been said so far it is clear that he was not "connected" with the carrying out of the acts in the sense of Article II, par. 2 d of the Control Council Law.
In the POHL verdict it is said and I quote:
"It (i.e. being connected with a crime) means something organization with the principals or accessories."
End ledge of the executions, which, by the way, he denied for the time of his membership in Einsatzkommando 4 b, this would not be sufficient to punish him in application of this provision of the law. For, as correctly stated in the same passage of the POHL verdict, "being connected" with a crime means more than mere knowledge.
executions. Considering the fret that before the start of the Russian campaign he was not employed at all in the SD but was a student of law; that is so obvious that I probably can spare myself going into any details. Only several years later (1943), after the conclusion of his studies, did he resume his intelligence activity in a relatively subordinate position in the Reich Main Security Office. His direct examination proved that he, not being Kommando leader and not holding any high rank, was not present when STRECKENBACH announced the Fuehrer order in Pretzsch. Hence he did not even know at the beginning of his assignment that the Einsatzkommandos would be ordered to exterminate certain groups of persons in the East. In this connection permit me to refer to the other results of the hearing of evidence. experiences as an SD-specialist during assignments in the Sudetenland and in Czechoslovakia.
I summarize my above elaborations as follows: ishment, during the three months he belonged to the Einsatzkommando 4 b as an intelligence officer and was assigned in the East. An assumption, based solely on his membership in Einsatzkommando 4 b, that he participated in the incriminating acts is not supported by the unequivocal result of the hearing of evidence. of false deductions and assumptions on the basis of a generalization. But such a procedure would have nothing to do with a judicial evaluation of the result of the hearing of evidence. For, in the course of the main trial, it has again and again been shown how varied and different were the conditions in the Einsatzkommandos and hence those applying to the defendants.
the evidence submitted by me, will also arrive at the conclusion that FENDLER is not guilty on Counts I and II. the SS on Documents NO-4144 and NO-4958. The latter document is FENDLER's personnel SS-form. It is true that this document gives the 15 April 1933 as the date of his joining the SS. But the defendant FENDLER has supplemented his affidavit - Document NO-4144 - the the direct examination as follows: that in 1933 he became only a candidate for the General-SS. As he had not done any service in the SS during the following years, he had been struck again from the list of candidates.
Hence, he never has been a member of the General-SS. Only by his joining the SD in the spring of 1936 he became a member of the SS, namely of the Special Formation (Sonderformation) SD. phasize that at that time he was 23 years old and had no political experience whatever. But his joining took place at a time and under conditions which exclude any knowledge of the criminal tasks and activities of the SD. He neither participated in the crime of the SD established by the IMT, nor did he hold any positions which would nave been bound to give him any knowledge of these events. trary. fice I of the Reich Security Main Office. But, as I already said, he did not perform any professional work for the SD in these years because, during this period, he was studying law and subsequently got his further legal training with the agencies of interior administration. the proof that FENDLER, during his membership in Office VI, had committed any criminal acts or had obtained any knowledge of such. The defendants STEIMLE and SANDBERGER as well as FENDLER himself have described in detail what tasks were incumbent on Office VI.
Moreover, I have produced the evidence by affidavits that my client was entrusted in the Office VI, in his limited position as Section Chief, exclusively with the gathering and evaluation of information, but did not have to make or did make any political decisions. Even as it is still done today, each state at that time employed certain civil servants who had to carry out such an activity. The same evidence shows that FENDLER did not gain any knowledge of the fact that criminal acts were committed in other sections of this office. Russia and later on in Berlin he gained knowledge of the acts of the Einsatzkommandos which are indicted here. But this knowledge does not constitute any punishable membership in a criminal organization. The Einsatzkommandos in the East did not belong to the organization of the Reich Main Security Office. They were not parts of it, particularly not of the Intelligence Organization SD (Offices III and VI). They rather were para-military mobile units of a special kind, subordinate to the Wehrmacht Commanders of the respective areas of assignment. of members of the Intelligence Organization SD. In the same manner as FENDLER, they were entrusted with intelligence tasks which are not the subject of the indictment. In consideration of these facts and of his own experiences FENDLER could not, from his knowledge of the activity of the Einsatzkommandos, draw any conclusion as to a criminal purpose or crimes committed by his organization-namely the Intelligence Service SD. mit crimes does in no way suffice per so to prove a criminal membership in this organization. And this even less so because these acts were committed quite independently of the organization (Intelligence Service SD) and in the course of the execution of tasks not belonging to this organization and under orders not coming from this organization(namely in the Einsatzkommandos). would remain incomprehensible inasmuch as it expressly ascertains the participation of the criminal police and the regular police in the Einsatzgruppen, nevertheless does not declare either of them to be a criminal organization.
i.e.during and after the period of his assignment in the East - was a member of Office I of the Reich Main Security Office, which definitely was not declared to be criminal by the IMT. for FENDLER to leave the SD during the war. In the course of the trial it has repeatedly been mentioned that the members of the SD, including FENDLER, had already been declared indispensable to the SD before the war. Hence, this happened already at a time which, according to the IMT verdict, is not relevant to the criminal character of the SD. In the IMT verdict as well as in the POHL verdict it has been unequivocally established that those members of an organization who were called or compelled to membership by the State must not be punished. pelled by the State to remain in such an organization. But this was the case with my client, as has already been said. Martial Law, he had to follow the order attaching him to Office VI of the Reich Main Security Office after the termination of his legal studies in September 1943. Hence, his membership in this office was likewise not a voluntary one. member of the SS only by his joining the SD. Hence, there was no independent membership in the SS. It merely was the purely formal consequence of his membership in the SD and therefore cannot at all be considered as a separate fact.
is also not guilty according to Count III.
As regards the defendant FENDLER's personality, the following is to be said: that all the participants in the trial must have gained the conviction that, in the course of his examination-be it by the Presiding Judge, by Mr. HOCHWALD or by me - he told the truth and endeavored to give us an exhaustive description of his entire activity in the SD, including the work in Einsatzkommando 4 b. It must be added that his description tallies with the contents of the numerous documents submitted by me. It is not surprising therefore, that the Prosecution has not succeeded in casting any doubt on his credibility. I refer only to the affidavits of BRASS, SUESSMUTH and BARTL which described FENDLER as a straighforward and clean character. Also for this reason it can and must be assumed that he told the truth here when he was under oath. tolerant man, who never was a political fanatic but rather distinguished himself by a particular readiness to help even those who were persecuted for political or racial reasons. Not one of these witnesses who have known FENDLER rather well for years - be it in the service or outside of it - believe him to be capable of participating in the acts which led to this trial. Through my dealing with this case, which now already has lasted for a half a year, and has frequently brought me in touch with FENDLER, I have come to the same conviction and I hope that also the Tribunal has gained this impression of my client. ing at 9:30.
(The Tribunal adjourned until 11 February 1948, at 0930 hours.)
Michael A. Musmanno, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
Military Tribunal II is now in session. God save the United States of America and this Honorable Tribunal.
DR. ASCHENAUER: I would like to ask that the defendant Ohlendorf be excused from attendance in court this afternoon and he be brought to Room 57. There are a few matters, final words and remaining matters, to discuss with him.
THE PRESIDENT: The defendant Ohlendorf will be excused from attendance in court this afternoon and will be taken to Room 57 so that he may there confer with his counsel.
DR. ASCHENAUER: Thank you, sir.
THE PRESIDENT: You are welcome.
DR. MAYER: Dr. Erich M. Mayer for Braune. mention that in order to save time I shall omit the introductory remarks which are contained in my written plea. I ask the Tribunal to take notice of them from the written copy. I shall start directly in medias Res.
1.) War crimes and crimes against humanity according to Control Council Law No. 10 of 20 December 1945 and committed during the time between May 1941 and Jane 1943.
2) Membership after 1 September 1939 in organizations declared criminal by IMT judgment: that is
a) SS,
b) Offices III, VI or VII of RuSHA,
c) Office IV of RuSHA. The details of this accusation are contained in the indictment, the Opening Statement of the Prosecution and Prosecution Documents with which I have dealt in detail and in a factual way in my Trial Brief. I refer in this respect to my statements there. not even that one single man was tortured by my client or by members of his Kommando or that the slightest destruction had been committed by him or his Kommando. He and his troops neither classified helpless civilians as Partisans or Partisan-supporters only to execute then, nor did they annihilate the sick or the insane from hospitals and asylums. I refer in this respect to the statements of Dr. ASCHENAUER in his final plea. One cannot charge my client with the report of 23 March 1943 since already at the beginning of March he went on a furlough to the Reich with Herr OHLENDORF, and thus was not even in the Crimea at that time. Furthermore the document does not prove that executions took place south of the Karasubasar. The whole report, as shown by the document covers the area of the entire Eilnsatzgruppe. "South of Karasubasar" refers only to reconnaissance for the purpose of preparing larger Wehrmacht operations, but doesnot refer to the clearly separated next paragraph which, without mentioning a definite locality, speaks of the shooting of 500 Gypsies and insane persons. and executed the selected men.
Here, too, I refer to the final plea of Dr. ASCHENAUER Even if there had been prisoner of war camps in the Crimea and if a selection had taken place it would not concern my client. Einsatz Order No. 14 of 29 October 1941 and its enclosure are the only things the defendant knew about this matter. It says in this document on page 94:
"According to the size of the camps located in their zone of an SS officer."
page 101:"The leaders of the Sonderkommandos will submit a short report to the chief of their Einsatzgruppe every week."
page 102:"The chief of their Einsatzgruppen decide on the suggestions Sonderkommandos the corresponding orders."
In other words, the defendant had nothing to do with the selection and the execution. is meant by this term. The persons who were arrested by the Kommando of the defendant were arrested under the suspicion of punishable acts during the investigation were either convicted of a criminal act and consequently punished Dr freed. The following paragraph I would also like to omit and ask that you would kindly look at it in the written copy, in particular ason Page 15 I am discussing this question again. them out, nor did they set up ghettos. Villages were not burned down by him nor hostages shot. Pertaining to the plundering with which he has been charged, I refer to the final plea of Dr. ASCHENAUER. Gypsies, communist functionaries, saboteurs and partisans. under oath that his Kommando, after incontestable conviction or in combat, shot Jews, Gypsies and communist functionaries according to a decree by the supreme war lord and lawmaker Adolf HITLER, as well as plunderers, saboteurs and Partisans according to the regulations of theCommander-in-Chief of the Army as the exponent of the executive power. cution for racial, political or religious reasons and that they intended even less the annihilation of whole sections of the population, as the Prosecution claims.
saboteurs and Partisans. They were shot according to the regulations issued by the Commander-in-chief of the Army in his capacity as the exponent of the executive power. plunderers, saboteurs and Partisans with the death sentence. All belligerent groups and nations have at all tines threatened and executed the sane death sentence for such criminal acts within the areas of operation. point to "Ordinance No. 1 of the American Military Government, Germany Supreme Commanders' Area of Control", which threatens the death penalty for twenty different actions.
Among the regulated crimes worthy of death I mention: "Wilful interference with, destruction or concealment of records or archives of any nature, public or private" or "Wilfully interfering with or misleading any member of a person acting under the authority of the Allied Forces in the performance of his duties" (No. 17 of the ordinance). Under No. 20 of this very ordinance considers sufficient for the pronouncement of the death sentence:
"Any other violation of the laws of war or act in aid of the enemy or endangering the security of the Allied Forces." the American Military Government represents the result of existing customs of war. shot were without exception guilty of acts which had been threatened with the death penalty by decree of the Wehrmacht. The defendant, and before him his superior OHLENDORF, testified to this credibly. The prosecution has not been able to prove the opposite.
evaluation the "Closing Brief" of the Prosecution unfortunately forces me to a statement. It contains so many objective falsehoods, distortions, imputations without foundation and false quotations that I cannot let it go unanswered.
cution in its opening statement against the defendant
1.) placed his subkommandos to Kertsch and Feodosie (transcript page 243);
2.) charged executions that were carried out by the entire Einsatzgruppe to Kommando 11 b;
3.) male 7-8000 people shot out of 7-800;
4.) charged the defendant with (having given his execution kommandos the order to shoot, which he never gave;
5.) made the defendant a member of the general SS; the defendant while in the witness stand declared those incorrectnesses to be errors
6.) When he was on the witness stand the prosecution charged him with having shot 15-20,000 persons, while the document mentions 15002000 persons; the prosecution then refrained from presenting this document. nesses:
7.) The prosecution calls Dr. BRAUNE "Commander-in-Chief".
8.) It claims that at Odessa Dr. BRAUNE denied that his kommando carried out executions, although Dr. BRAUNE was never charged with those neither through documents nor during the examination, and although he proved, on the contrary, that he prevented the shooting of tens of thousands of Jews in Odessa.
9.) The prosecution charges him with having carefully avoided comment on the shooting of 800 gypsies and insane people, although the prosecution did not charge the defendant with this document; neither in the indictment, nor in the opening speech of the prosecution, nor in the witness stand, the reason being, as one can see from the evidence; that Dr. BRAUNE together with OHLENDORF went on a vacation at the beginning of March while those shootings were reported as having taken place on March 23rd.
On 29 September Mr. FERENCZ answered a question of Dr. GAWLIKS:
"At that time we will refer back to the documents already received and point out exactly how each defendant is connected with that document." presented against BRAUNE nor wasit mentioned in the beginning of volume III D under "responsibility of the defendant BRAUNE". There was therefore no reason for me to refer to it daring my examination. Wehrmacht carried out those executions although I did not ask Dr. BRAUNE a single question concerning this complex, because it has nothing to do with Dr. BRAUNE. The following Point 11 I shall omit because the translation department has assured me that there had been a mistake in the translation by the translation departments and the prosecution took up this mistake. I think that the matter is cleared up. that it wasnot a matter of underclothing but a matter of outer clothing. While in the witness stand the defendant could prove that no incrimination can be derived from document NOKW 1863 (document book III D of the prosecution) which is an operational order of 12 January 43 based on an Army order and issued by the defendant for the combing of the city of Simferopol in search of untrustworthy elements; and that document NOKW 584, concerning the attitude of Major "RIESEN to the retaliation action in Eupatoria of 7 January 1942 Which had been ordered by the Commander-in-Chief of the Army could not be charged against the defendant, since in this case guerillas and snipers were shot which action constituted a retaliation permissible under the articles of war, and which had been ordered by the holder of the executive power, Field Marshal won MANSTEIN.
following incriminating facts against the defendant: It simply mixed the two documents NOKW 1863, and, in a completely non-sensical manner it declares that the responsibility for the execution at Eupatoria, on 7 January 1942 of 1184 suspects of partisan activity becomes apparent through the operational order for the combing of Simferopol of 12 January 1942. This seems unreasonable because the execution of the 1184 snipers took place on 7 January 1942, whereas the order for the combing of Simferopol, which is 100 km away from Eupatoria was given on 12 January 1942, i.e. 5 days after the happenings in Eupatoria. In this manner the prosecution succeeds in making it appear as if the execution of 11814 persons was the result of the combing of Simferopol, whereas in reality not one execution, indeed, not even any arrest can be seen from the combing order.
But this is not all:
Document NOKW 1863 states quite clearly: under Figure 4:
The city will be divided up in 6 tactical divisions......division leaders are: 1st division: 1st lieutenant IIIrd " captain IVth " " Vth " " VIth " " In accordance with this the defendant explained in the direct examination.
"On page 2 it can be seen that the city was divided into 6 districts and all these six districts during that action were under the charge of an Army officer. That is What actually happened in these districts during that action was done under the command of an Army officer".
And during the cross examination the defendant quite logically said:
"It wasnot that one of my men had the leadership in these districts but asyou will see from page 2 of the document".........
did not conclude his sentence. The document, the statements in the direct and the cross examination are absolutely in agreement. In spite of this the prosecution states in its closing brief, and I quote:
"but, after close questioning, he does admit that in each of suspects."
again parts of the happenings in Eupatoria of 7 January 1942 and arrives at the astonishing conclusion:
"Document NOKW - 584, shows in an official report of the clearly shown that Dr. BRAUNE gave orders on the place of execution for the carrying out of the shootings". Thus the operational order of 12 January 1942 was used in order to prove BRAUNE's authority to issue orders; and the happenings at Eupatoria of 12 January 1942 when 1184 partisans were shot, actually, upon the order of Major RIESEN, were used in order to make it appear as if BRAUNE had given the order for the 1184 shootings as a result of the combing of Simferopol, while in reality, as we have already mentioned, not a single arrest and not a single execution can be derived from the operational order of 12 January 1942.
This is the reason why the prosecution, in its opening speech of 30 September in the afternoon (page 245 in German, page 239 of the English transcript), states;
"This order admittedly does not show its own execution. However, Dr. BRAUNE will soon have ample opportunity to relate the final results of the raid". Since Dr. BRAUNE's report in the witness stand did obviously not yield the results desired by the prosecution, it is now trying to obtain some "results" in the above-mentioned way.
14.) On page 3192 of the English transcript, the prosecution quotes that he, Braune, "eight to ten hours after his arrival in this area for 'the whole lot Of them had engaged in illegal activities'". Actually the defendant said;"Well, according to the information I had at the tine, I Army was carrying out Fuehrer orders".The words:
"for purposes of commanding this action" are thus an invention on the part of the prosecution.
The defendant in that very document:
"The retaliation against partisans at Jewpatoria on Commander-in-Chief". obviously wrong statement on page 10 of itsclosing brief when it says:
"It is, however, incumbent upon the prosecution to recollection, Einstatzkommando 11b used one.
A gas van."
The fact is:
that Dr. BRAUNE stated on the forenoon of the is of January "The van must have been used by my kommando in Simferopol at least once" i.e. in contradiction to the claim of the prosecution in its closing brief he did not deny that his kommando used the car.
It is furthermore true, that OHLENDORF did not say:
"that to the best of his recollection Einsatzkommando 11 b used the van" but, upon the question:
"And 11 b, did it ever use one?" he answered;
" "11 b will have used it" and a few lines further down he declared:
"11 b nay have used the van twice or three tines perhaps, I don't know it". This means, that OHLENDORF did not say:
"that to his best of recollection "Einsatzkommando 11 b used the van".
This too, is a wrong quotation from the transcripts. In spite of the documentary evidence proving that in Eupatoria the execution of the Jews was performed through the Kommando 11 a and not through the Kommando of the defendant and which the defendant has also described in detail in direct examination, the prosecution, in its closing brief, claims again "Braune admits that executions were performed by elements ox his commando Eupatoria". Nowhere in the transcript isthere such a statement by Braune.
Finally, the prosecution, on page 11 of its closing brief, makes 47-50 members of Kommando 11 b out of the 45-50 murdered end badly wounded German soldiers who had their throats cut by guerillas in Eupatoria in January 1942 which event gave rise to the above mentioned retaliations.
"Braune further admits that he and some 47 - 50 members of his 1184 mail inhabitants of Eupatoria". Here too, Dr. Braune is put in charge of that action". The fact is that Dr. Braune went to Eupatoria alone with Major Riesen, that a company of the airforce carried cut the execution and that Major Riesen was in command.
Dr. Braune declared in the session of the afternoon of 26 November:
"During this selection Major Riesen, who says himself on page one (of his statement) that he had to carry out the order of the to carry out these shootings on order of the Army."
This is what Dr. Braune admitted and not "that he and some 47-50 of his Kommando personnel were in charge of and directed a reprisal action."
May it please the tribunal! I have proved that in 19 cases the prosecution quoted incorrectly documents and statements taken from the examination of the defendant, and thus completely misrepresent the actual facts.
closely to this closing brief. However, I believe that I have amply explained to the High Tribunal the methods which the prosecution used in itsclosing brief in order to incriminate my client and to impeach his credibility, and that I proved how this closing brief should be evaluated. of Jews and gypsies. circumstances of the war against the USSR which led to those shootings. I herewith refer to the statements I made there. The shootings were made - and this was not denied by the prosecution either: a) upon order of Hitler, the Supreme War Lord, b) subject to the executive power, the knowledge and cooperation, indeed, subject to the order of the army, with whom rested the decision upon life and death of the persons in that theater of operations. They were carried out against an enemy who himself was ignoring all limitations of international laws and of the laws of humanity, who was carrying on a total war in the most merciless manner and is carrying it on to this very day, without respecting any principles of international law, whether they were established before or after 1945. Security, quiet and order in the rear of the fighting troops were the reasons for the Fuehrer order given to the defendant, not extermination for political, racial or religious reasons as claimed by the prosecution. The defendant was never given any different or additional orders, especially has he never during his service received any direct additional orders in this direction from Himmler or from Heydrich. He never received an order to have Jews and gypsies shot only because they belonged to a certain race or religion; the order was given to him with the sole motivation that Jews and gypsies are an element most dangerous to security, and that in addition to this the Jews next to the Communist functionaries were the most important representatives of the of the Bolshevist system and its fighting methods in the rear of the Army.
This feet was confirmed by experiences made by colleagues of the defendant during the months before the defendant was assigned end which the defendant found confirmed to the full extent during his service in the Crimea. The activity and situation report No. 4 of 22. May 1942 shows that only 5-6% of the total population of the Crimea were Jews, but they usually held 50% of the leading positions in the Bolshevist Party and State.
The following excerpts I shall emit in order to save time. Particularly inthe econd paragraph there are mentioned that the Volk Commissar had 40%, The Commissar for Education had 80%, for health and education 80%, for economics 80%, for commerce 60%, and for NKWD had 45% of Jews. was of equal importance as can be seen from the action, reports, the activities and situation reports. that the Fuehrer order had been issued for reasons of security, especially since he had not the slightest knowledge of the so-called "final solution of the Jewish question". living in their apartments, in as far as they had not emigrated with the aid of State authorities. cussed in the highest government it authorities and the statement by Wisliceny before the IMT shows that not until April or May 1942 was the order for the final solution of the Jewish question given to Eichmann. The letter from Goering to Heydrich presented by the prosecution, also shows that it was meant to be a supplement of the assignment already given, namely to bring about a solution of the Jewish question which should be as favorable as possible in view of the conditions of the time by letting them emigrate or by evacuating them.