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.
This is also not contradicted by Heydrich's express letter of 21 September 1939, presented by the prosecution:
"to the Chiefs of all Einsatzgruppen of the Security police." According to the opening statement of the prosecution concerning the organization of the Einsatzgruppen it is a fact that the "Einsatzgruppen" in the Polish are in no way identical with the Einsatzgruppen of this trial, which at that time did not even exist, but which were not organized until Hay and June of 1941. The defendant never saw or heard of that express letter of Heydrich of 21 September 1939. Besides, this order does not provide in any lace for extermination or annihilation, but only mentions the concentration of Jews in Ghettos, which were to be set up in the cities. If, during the course of the trial various interpretations of the Fuehrer order by other persons involved are mentioned, this does not prove anything against the defendant, who was not present when this order was published in Dueben and Pretsch through the office Chiefs Streckenbach and Mueller and never heard of any other interpretation of the order, than the one given him by his superior Ohlendorf. During the rebuttal the prosecution presented document NOKW 1573, and stated that, contrary to the statements of Ohlendorf, Seibert, Schubert and Braune the document shows that alreadyduring the period or 5 to 15 November there were, constantly, executions in Simferopol although at that time the civilian population was allegedly friendly. Here too, the prosecution has left out the second half of the sentence-I assume it was through an oversight -- which says: "that there seem to be many Communists left in the city". My client has nothing to do with this document. He did not state that there were no shootings in Simferopol between 5 and 15 November. He could not state this, since during that time the defendant was still in Odessa with Kommando 11 b. He did not take over this Kommando until the 10th of November and did not arrive in Simferopol until the 28th of November.
The result of the evidence as stated by me in my trial brief, has thus not been affected by the only document presented in the rebuttal against my client. in my trial brief in all their details? Legislator. Adolf Hitler was for him the Head of State, elected by the German people, recognized by the whole world, and with whom all nations maintained diplomatic relations until the outbreak of the war, with whom America kept up diplomatic relations until the and of 1941, and to whom the neutral states sent their diplomatic representatives until the end of the war. The Fuehrer had been given legisl tive powers by constitutional procedures -- indeed, under full observance of the Weimar constitution, a model piece of democratic ideals which is often quoted. His power was unlimited and thus Reich Defense Law issued in 1930, e.g. defines the Fuehrer and Reich Chancellor as "holder of the supreme state authority". The holder of the supreme state authority and supreme war lord and Communist functionaries. I am aware that the Control Council Law No. 10 of 20 December 1945 in article II, figure 4b, does not free a person from responsibility for action pursuant to the order of his government or of a superior, but may be considered in mitigation. Nevertheless I must raise the problem of the ideas and convictions caused by Hitler's order, in the mind of my client with regard to their legal aspect, because I believe that in the very last analysis this problem contains the inherent problems of this trial which a court, independent of all propaganda, of public opinion and of all attempts aimed at falsifications endeavors to pass just judgment on those men in the dock, cannot overlook.
I am not trying to work any extenuating circumstances out of this question and -- I want to make this quite clear -- but I want more. I want to explain why my client, at the beginning of the trial could answer the question about "guilty" or "not guilty" only with a clear "not guilty". Is the defendant Dr. Braune guilty? This is the question, to the solution of which I want to contribute. I am going to start but from the following deliberations: Though Control Council Law No. 10 may exclude any reference of a person to the order of the government or a superior with retroactive effect there is one thing which it could not have intended and did not intend: To punish men, who took up service because they believed that the order upon which they acted was legal; who, without any fault of their own, had no feeling that they did wrong and could not have had such feelings. The retroactive force of the Control Council Law may be enforced objectively; it will, however, find its limitations in the subjective part of the events, in that part which took place in the mind of the defendant. Even retro-actively effective laws cannot change anything in the fact that those persons had the right to believe their actions legal and therefore had no feeling of doing anything wrong, and this alone counts. Could the defendant, at that time, have this feeling of legality, or rather, did he have to have it?
the legal position at the time: basis of the order that had been issued, he must not be punished, even if the Control Council Law does not purport to bring about convictions without guilt. awareness of having acted unlawfully is an integral part of guilt, which according to criminal law is always a personal guilt. only be understood to mean that the recipient of an order must have been conscious of the fact that his conduct was contrary to the law and wrong. There is no guilt without the awareness of having acted unlawfully.
Also the IMT clearly acknowledged this principle. Which conceptions, then, were decisive for the defendant's awareness of acting lawfully? the basis of his constitutional powers as well as on the basis of his military authority in his capacity as supreme commander of the armed forces.
"The Fuehrer's orders were law already a considerable time before this second World War.
"His orders were something quite different from the orders of any official of the hierarchy under him."
It cut short any discussion. It was legally binding for the persons concerned, even when the directives went counter to international law or to other recognized obligations."
This stated Prof. Jahrreis as expert before the IMT.
The Fuehrer Order partook of the character of a law. A law, however, was binding for a judge as well as for every official and every subject of the state, not only in the authoritarian Fuehrer state after 1933, but already under the auspices of the democratic republic based on the Weimar constitution.
Gerhard Anschuetz, says in his commentary about this:
"If it cannot even be conceded that the judge is entitled to examine the law as for its being constitutional or not, so it can be conceded even less that he may refuse obedience to a law which was passed constitutionally because, according to his opinion concerning certain standards which, again according to his opinion, are above the legislator, that is to say, morality, ethics, natural law, they contradict these points or because they cannot stand up to certain evaluations," Fuehrer state but the spiritual father of the Weimar democracy. Already during the Weimar period, during which the defendant received legal training at German universities, it was beyond the reach of not only an official but also a judge and even beyond the Reich Supreme Court to re-examine any law for its moral basis or its background of international law.
"The background of international law could not even be examined by the Staatsgerichtshof, the State Court. The State Court was only allowed to examine whether it was constitutional, but it was not allowed to examine it from the point of view of international law."
According to Prof. Jahrreis and his opinion in the Justices' Trial. the following on page 153 of his book:
"Judges and subjects are under the obligation to apply the law of the state, even if contrary to international law, and to follow it. It is not up to them but up to the government to take into consideration the differences with international law which may arise out of this."
Also the well-knwon German jurist, Prof. Jahrreis, only repeats the general concept and legal opinion, when he gives the following expert opinion of the Justices' Trial:
"Every state must demand as a matter of principle, that its laws be followed, even if the individual concerned holds a different opinion owing to moral, or religious, or other grounds."
At another occasion he says:
"Already before 1933, and even more after 1933, it has always been undisputed that the judges were obligated to obey the law of the German state, even if by doing so they were violating the principles of international law." officials and subjects, whose position did not nearly afford them the same measure of independence as that enjoyed by a judge.
But even if no legally binding force is granted to Hitler's Order, but it is evaluated as what it undeniably was, namely an order of the head of the state and supreme commander of the armed forces during war time and under military law, the result remains. If already in peace time officials and judges are bound by constitutionally enacted laws and are not even permitted, leave alone abliged, to examine their admissibility or their basis in international law, it is obvious how much more the soldier during a war and who is subject to military law is bound by the orders of his highest authority in the state. They too did not permit any re-examination.
"Should or can the state authority grant the members of its hierarchy its officials and officers, the right or even Impose on them the duty, to examine at any time any order which demands obedience from them, to determine whether it is lawful and to decide accordingly whether to obey or refuse? No domination which has appeared in history to date has given an affirmative answer to this question...... in as far as such a right of examination is not granted to members of the hierarchy, the order has legal force for them."
highest orders which must be binding on the hierarchy, if the authority of the State is to exist at all, being on occasion in conflict with rules not imposed by the state - to divine law, to natural law and to the laws of reason...."
"If Hitler issued an order which was faulty from a legal point of view, that did not give the German official agencies any reason to refuse obedience, for in every state there has to be an authority beyond which there is no appeal."
Thus did Prof. Jahrreis outline the problem in his expert opinion before the IMT and also during the Justices' Trial.
during the war, refuse to comply with orders, contradicting international law. violations of international law at all in regard to Russia, who had placed herself outside all international law from the first day of its existence. But also the farmer question has to be answered in the negative, as it had always been beyond a question for any official in Germany that, in case of a contradiction between the Reich law and international law, he had to apply Reich law. in a far higher degree in war time for the soldier at the front: sovereign state is able to face as yet. The question remains inasfar as Article 47 of the German Military Penal Code made it incumbent upon the defendant to refuse compliance with Hitler's Order. argumentsof my colleagues, Dr. Gawlik and Dr. Aschenauer. The provisions of Article 47 (MSTGBI) can only mean that a soldier is permitted to refuse compliance with an order if there exists a higher authority able to decide if his refusal to comply with the order was justified.
Hitler's orders, however, were no ordinary military orders, but were suprema lex, beyond which one could not go any further. There was no possibility of an appeal against them. Article 47 could not be applied at all to orders emanating from Hitler, the Supreme Commander of the Armed Forces. Also in the question of the possibility of resisting to a military order, it is a prerequisite that the person to whom the order applies, should have the possibility to appeal against it. The long tradition of that Article 47 in the jurisdiction of the German Armed Forces is witness to this. In this justified conviction, however, there could not arise in the defendant an awareness of the action being unlawful, especially as he was neither permitted nor obligated to re-examine the order from the point of view of its lawfulness or its contradiction with international law. Neither did he have the scope for an examination.
Was, then, at the time of the defendants appointment in the East, i.e. 1941, this legal position of the German Reich and its subjects in conflict with the legal concept and legal position of other civilized nations in a matter at all discernible to the defendant? Also to this point I am able to refer to the remarks of my colleague Dr. Gawlik, who was shown that up to 1945, almost all the other nations of Western outlook too subscribed to these principles. Thus, during the discussions on the Briand-Kellog Pact repeatedly quoted by the Prosecution, to which Russia, however, was not signatory power, the American representative Kellogg said in 1927:
"Every state is the only judge of its conduct in the question of its existence." in his "International Law" that the law could not demand that an individual be punished for an act which he had been forced to commit by law.
1940 by the United States War Department, after enumerating possible war crimes, contains the following statement:
"Individual members of the armed forces are not liable to punishment for these crimes, if the latter were committed under orders or with the approval of their governments or commandants." agencies in the British "Manual of Military Law" which after listing the possible war crimes states the following in Article 443:
"It is, however, important to note that members of the armed forces, ccommitting such violations of the recognized rules of warfare, which had been ordered by their governments or their commandants, are no war criminals and can therefore not be punished by the enemy". national law, George Manner, too, writes the following in an article headed "The legal nature and punishment of criminal acts of violence contrary to the laws of war":
"The principle that the members of the armed forces of a country are not personally responsible and can therefore not be punished for acts violating the rules of warfare committed under orders or with the approval of their governmental or military superiors, does not form part of the military law. Nevertheless it appears to be a recognized principle of that law. At least since 1914 this principle has been embodied in the war manuals of the powers as a rule of the common military law." America is shown by the fact that in 1840, the American Secretary of State, Webster, in a controversy with the British Government concerning the punishment of a British subject stated the following:
"That an individual member of an official armed force acting on the authority of its government cannot be held responsible for the tres passing of laws, is a principle of public law which has been sanctioned by the usage of all civilized nations and which the government of the United States is not inclined to contest."
upon to prove the contrary, for that provision, which was never carried out, was not a law agreed upon, but the result of a onesided dictate. It is of interest to note that it was the American expert on international law, Professor Fenwick who stated in his book "International Law" that one of the reasons why this provision was not carried out, was "the difficulties arising in public law from the fact that many of the accused individuals had acted on superior orders." life up to this day is shown by the well-known speech held by Marshal Montgomery on 26 July 1946 at Portsmouth. Aschenauer has already quoted it. even during the Second World War, the Control Council Law now sets up the statute for members of the German people, that the acting on superior orders does not do away with responsibility. The Control council certainly possesses the legislative powers to issue such rules. But it does not alter the subjective aspect of the defendant's conduct during the Russian campaign. Owing to the legal position in Germany - as shown above - but also outside the borders of the Reich, he could not even have had an awareness of guilt, it was neither his right nor his duty to examine whether the orders he received were unlawful or violated international law.
The following page I shall omit except for the last paragraph:
Apart from this question of the lawfulness of the defendant's actions performed on the order of the head of his state and his supreme commander of the armed forces, and the question of his lack of awareness of doing wrong, which is closely linked to the former, in my opinion the court must not overlook the problem inasfar as the conduct of the German Reich in the war against Russia, especially the Fuehrer Order violate the obligations of Germany towards the USSR according to international law.