11 Feb 1948_M_MSD_6_2_Spears (Juelich) the fact that the Prosecution, in spite of 2 1/2 years of investigation, and even though it has access to the entire collection of German documentary material - material which both incriminates and exonerates the defendants, - has nevertheless not been able to produce even one single case in which so much as one German Feldmarschall or General opposed a Fuehrer Order. Should then a man with the rank of major have been expected to oppose in such a manner not only Hitler's Order but also at the same time the order of one of these Feldmarschalls? That would be going far beyond the bounds of what could be reasonably expected of a man. I refer to the judgment of Dr. Loew the record of whose interrogation was submitted as a Prosecution Document. following even with regard to an order by Keitel:
"The result would have been self-annihilations and indirectly, a certain historical improvement."
I believe that there is no debut that this "self annihilation with an indirect historical improvement" did not constitute a choice in keeping with ethical law. but even if he had, this would not have altered events anyhow. Oberfuehrer Ohlendorf himslef stated, during his examination (Court Transcript, Pages 743/44) that such an attempt on Braune's part would have been a wasted effort. truthfully stated (Pages 3110-13, Court Transcript) that he had not made such an attempt. Similarly the Defendant could not have evaded the incident by reporting ill, apart from the fact that even if he had, it would not have delayed the execution of the Fuehrer Order by so much as one day. transferred back to the homeland under the pretext of illness. But 11 Feb 1948_M_MSD_6_3_Spears (Juelich) But at this point as well I dare to rasie the question of whether malingering is a "choice in keeping with ethical law", for a soldier at the front, in his people's struggle for existence against Bolshevism, exposed and courtmartialled.
In this case as well, the Defendant would have incurred the danger of the depth sentence, in view of the following:
"The following shall "be guilty of undermining German defensive strength and shall be 'punished by death. whoever under takes to cause himelf or another to avoid the fulfilment of military service entirely, to a limit extent, or temporatily by means of self-mutiliation, or by means designed to deceive or "by any other methods. question of possible desertion and stated as follows:
"I would not have deserted, when my people was in a struggle for its very existence. But I would not desert under any circumstances to an enemy like Bolshevism," (Transcript, page 3104) All that I can add to that is that the Defendant could not have been expected to give himself up to the Bolshevists. why the Defendant did not attempt, together with Herr Ohlendorf, his superior, with whom he was on very friendly terms, to refuse to carry out the order or to sabotage it quietly. I joint refusal would have constituted mutiny. For this the laws of war of all nations know only one penalty. At the front at any rate: shooting by courtmartial. But a silent failure to carry out the order was also out of the question, under the given circumstances. The Army and superior authorities would have found out about it very soon and would have punished it as disobedience and refusal to obey an order. of the Military Penal Code (MSTGB) was impossible.
11 Feb 1948_M_MSD_6_4_Spears (Juelich) possibilities considered, the following is still apparent: the Defendant was absolutely unable to avoid or prevent his Commando from carrying out the order. No matter what he would have done, it would not have altered matters any as far as execution of the order was concerned. ing his own life. There is no legal concept in the world that demands of a man that he consciously sacrifice his own life, especially if the self-sacrifice seems wasted. And in this case, it would have been wasted, for it could in no way have altered the entire course of events. Finally with regard to the problems of the state of emergency brought about by the order and the problem of what could be expected of a man, I take the liberty of referring to the statements by Dr. Lummert and Dr. Gawlik. till now, I have reached the following conclusion: 1945, and, as for as the Defendant knew, in European and AngloAmerican countries. as well, the Defendant cannot be considered guilty of having committed war crimes or crimes against humanity. Supreme Military Commander, he dealt with a matter which justifies the conduct of the Defendant, in the light of national and international legal concepts existent till 1945. Article 47 cannot be applied to the Fuehrer Order.
Dr. Braune's acts were justified by his awareness that according to the legal principles existent up till 1945, national law was superior to international law, and that also, in case of conflict, every subject must obey the law of his State.
The Defendant acted in the awareness that Hitler's order was legal, that is, issued within the scope of Hitler's constitutional rights as Supreme Head of the State and Supreme Military Authority, 11 Feb 1948_M_MSD_6_5_Spears (Juelich) Furthermore, I wish to point out that in Germany's struggle with the USSR, there were no international obligations towards the USSR, and that therefore violations of international law against the USSR could not be committed.
The Defendant acted during a time that Germany was in a state of national emergency, and he should at least be given the benefit of pleading a presumed state of national emergency on the basis of the evidence which has been submitted concerning the picture which Reich Leaders gave to the German People concerning the reasons for, and the nature of, the war against the USSR. which could provide the gasis for the Defendant to be punished in view of the circumstances and conditions that have been described here.
The Prosecution confronts him with Control Council Law No. 10 dated 20 December 1945 and bases its request for his punishment on this law. The time at my disposal is not sufficient for me to deal with the problematic nature of this law as I should.
I therefore refer to it only briefly: of the legal systems of all civilized nations:
The Principle: nulla poena sine lege. previously existent in the entire world, is that the Control Council Law aims at the creation of a new international law, the expressions of laws of humanity to be binding upon the entire world. It is based on the reason that it is the expression of international law existent at the time that the law was created, that the law of war is not derived from treaties alone, but also from the international usages and customs, which have gradually found general recognition. This law is not rigid, but, by constant adaptation, it follows the requirements of a changing world; it is the essential nucleus of a new law, that individual persons have international obligations over and above national 11 Feb 1948_M_MSD_Spears (Juleich) 6-6 obligations, imposed upon them by obedience to the individual state.
order to justify the Statute - and thus also the Control Council Law derived from it. disregard the following points:
1) Do these reasons justify the creation and application of a new international law with retroactive force or rather, should not such revolutionary laws which invalidate the law existent in the entire world up till now, be considered as valid only from that they come into force? However, if it is to be applied retrospectively to the leading men of a state because they knew of this new development of the law not yet codified, does this thesis then also justify its application to the subject of the State, who was forced by martial law to carry out laws and orders of the head of state and of its leading men?
2). If the Control Concil Law were the expression of the valid International Law at that time the former was created, was this International Law then also valid in respect to the USSR, that is a state which since its establishment did not know anything binding it to International Law, and towards which Germany did not possess any duties as far as International Law is concerned, neither those arising from contracts, nor from common law, nor those created by custom? International Law was valid in 1941/42 already, and if so, whether or not it was possible for the defendants to know it at all.
The problem arises: "Where did this new International Law appear for the first time perceivable for the German state's subject, so that he was able to know it? To which of these defendants could it be imputed that he had learned 11 Feb 1948_M_MSD_6_7_Spears (Juelich) of such decisions during the war, quite apart from the problem, whether or not decisions made by American State Courts may constitute an International Law binding for all the world.
defendants here, for, as has been set forth by the Prosecution on page 56 of the Court transcript, the military tribunals in session here are international tribunals according to their character and indeed, a concept which the American Military Tribunal adopted in the verdict against the jurists, though the indictment was raised by the "United States of America". which gradually had found general recognition. Did the USSR also recognize them, so that they would have become binding for Germany? Was it effected by agreements? If not, was it effected by concluding actions? contrary.
Finally the following problem remains: the new law, that individuals had international duties, which transcend national duties, which are laid upon them by their obedience to the individual state.
Must then not the problem be raised: would protect the state's subject, who, in favor of the international duty violates the national law? Where was the international power in 1941, which would have protected the defendant against a sentence by German Court Martials on account of disobedience and refusal to carry out orders? today they have not been answered yet.
11 Feb 1948_M_MSD_6_8_Spears (Juelich) which would protect any state's subject if he violates the laws of his own state by fulfilling his international duties. this problem when finding its verdict. But even if the High Tribunal would pass by all these problems, then it would not be able to disregard the following in its decision.
THE PRESIDENT: Dr. Mayer, do you think this would be a good point at which to have the morning recess?
DR. MAYER: Yes.
THE PRESIDENT: The Tribunal will be in recess 15 minutes.
(A recess was taken.)
COURT NO. II, CASE NO. IX.
THE MARSHAL: The Tribunal is again in session.
DR. MAYER (Attorney for the Defendant Braune): Your Honors, I now proceed with my final plea on page 51. It is also page 51 of the English text. Council Law No. 10, too, will not see two justifications invalidated:
1.) The lacking consciousness of illegality 2. ) The emergency.
in the verdict of the IMT, out it is impossible to perceive that a new International and World Law, as the base of which Control Council Law No. 10 was designated, would disregard the most primitive hypothesis of any guilt, namely, the consciousness of unlawfulness. has been clearly expressed by the IMT on page 64 of the published text, where it says that not the existence of an order is the decisive moment, but "whether or not it was actually possible to effect a choice according to the moral code."
This principle was recognized in the verdict against Erhard Milch as well as in that against Flick. Law No. 10 of 1945 will be applied retrospectively to my client's behavior in 1941/42 a sentence does not seem justified, as this is opposed by the facts of a
a) lacking consciousness of illegality
b) justified reference to a genuine emergency. Finally I beg the high tribunal while finding its verdict to examine how far it was possible to assert this new International Law in reality and whether it thus found its justification, or whether it has remained a law for the defeated ones only, which is not only disregarded by the USSR and all states in its sphere of power, but also whether the Western victorious powers have not violated it, without any Court in the world applying this new law to these violations, and thus this new law has lost its ethical-moral foundations.
a future development of the law, if in future two measures will still be applied in the world George Martin of the Nuernberg trials published in the Munich newspaper, Muenchener Zeitung, a few weeks ago: then I believe that no tribunal which is conscious of its responsibility to justice and history can pass by the above raised problems. Finally Dr. Braune is charged with membership:
a) in the SS, or general SS
b) in Amt III, VI, or VII of the RSHA
c) in Amt IV of the RSHA Dr. Braune belonged to the SS only in the framework of the SS-special formation SD, which comprised all members of the intelligence service on special subjects I want to supplement the SS, (Sachnachrichtendienst) SD (Amt III, VI and VII of the RSHA) and of the Security Police (Amt IV and V), as well as of the administrative Amt I and II of the RSHA.
criminal by the IMT, but only the "SD" was declared criminal, as far as it conprises Amt III, VI and VII as offices for special subjects (Sachaemter), and of the Security Police only the Secret State Police (Amt IV), and not also the Criminal Police (Amt V). by the IMT outside the SS as two independent groups, as "Gestapo and SD" (see IMT verdict). facts, in sofar as it mistakenly identifies Amt III, VI and VII with the "Reich Security Service of the Reich Fuehrer-SS" (Page 18 of the indictment) There never existed a "Reich Security Service" of the Reich Fuehrer-SS". There was a Reich Security Service, which had nothing to do with the RSHA and the SD, but was a special protective unit for leading persons of the Reich, and which was subordinate to its own unit leader, SSFuehrer Rattenhuber.
On the other hand, the "Security Service" of the Reich Fuehrer-SS is an SS-formation without any task and activity, without any sub-division, which, as shown above, did not only comprise the SS-members of the sentenced Amt III, IV, VI and VII, but also comprised Amt I, II and V of the RsHA and other police units.
The defendant only belonged to the groups "Gestapo and SD", which are declared to be criminal, but he never belonged to any of the SS-groups which are declared criminal.
I refer to the IMT verdict; it declares on page 113 of the published text in its conclusion:
"The Security Service of the Reich Fuehrer-SS, (generally known as the SD), will be dealt with in the tribunal's verdict on the Gestapo and the SD."
longed to the general SS, which Dr. Braune never did, and on account of which he, therefore, cannot be sentenced. Concerning SD. The IMT isolates the Security Service of the Reich Fuehrer-SS" from the Group "SS", and, as is shown at another point, by which the IMT understands Amt III, VI and VII of the RsHA; the defendant only belonged to the Security Service of the Reich Fuehrer-SS until April 1939, when he was released from his activity with the SD and was ordered to the Secret State Police. The defendant cannot be sentenced for this time which lies before 1 September 1939. After this date, the defendant did not belong either in an official or honorary capacity to Amt III, VI or VII of the RsHA or to my of their sub-divisions, neither did he have any functions in them, nor was he active in them. As from April 1939 onward he only were the SS-uniform with the SD-insignia, concerning the SS he neither had any function nor did he carry out any activity, he did not have to perform any SS-service, neither did he have any knowledge of the activity of the SS-groups, declared criminal here, nor of that of Amt III, VI and VII of the RsHA.
war, this was only effected in sub-divisions of Amt IV of the RsHA, the. Secret State Police. takes there, which the Tribunal shall omit, then.
Should the Tribunal be of a different opinion, then Dr. Braune cannot be sentenced on account of an other reason. The IMT declared:
"During the war members of the Security Police and of the SD have lead to severe sentences."
Nevertheless the IMT arrived at a sentence on the following basis:
"However, the fact remains, that all members of the Security as civil servants."
With this the IMT did not at all want to exclude the admissibility of a counter proof concerning the voluntariness, cooperation or knowledge of the individual members of the groups concerned. The IMT itself has referred to the "recognized principles of law" and has especially expressed, that "a criminal guilt is an individual guilt, and mass punishments are to be avoided."
The Chief Prosecutor of the IMT, Jackson, declared (Official transcript page 5176) concerning the individual member of the organizations:
"Nothing hinders him from denying, that he joined voluntarily, or from proving that he acted under compulsion.
He can prove that by deceit and by wile he was made to join."
"The membership which the statute and the law of the Control Council Law declare to be criminal, means, of course, a real membership according to a decision of the member's own free will. It is necessary that the member joined the organization fully cognizant and voluntary.
which a person has become victim, were never considered as a crime of the victim; neither is it intended to achieve such an unfair result now." all further proceedings:
"In this trial the individual defendant can state everything in which he was."
(Declaration of Chief Prosecutor Jackson, dated 14 December 1945.)
Braune received the completely concrete assurance, that he did not need to undertake any function or activity in the State police, he became a merely formal, that is, not a genuine member of the State Police, He remained exclusively active in the SD, in the legal and administrative department. Security Police and Braune was ordered to the State Police in Muenster. That this was effected against his will and under compulsion is proved by the fact, that with all means at his disposal Braune defended himself against this transfer and when he was not able to prevent it, he practically did not do any service in Muenster. no activity of Dr. Braune's in the State Police exists. He intended thus to force his dismissal. He did not succeed in doing so, for, in contradiction to the supposition of the IMT that he was not exposed to any other pressure before 1939 than to the danger of losing his position as a civil servant, kt has been proved, that Heydrich already openly declared in 1937:
"Nobody will be released from the Sipo, with the exception if we do not like him any more; in this case, however, the way goes via the concentration camp."
Therefore, in Koblenz the defendant did not chose any more the way to force his release from the Stapo, as it had proven to be foolish - but he tried it in that way, that with his farmer superior, Ohlendorf, he tried to arrange for a re-transfer to the SD.
And this way seemed to work. that he could count on his re-transfer to the SD in Berlin.
He had even already been asked to start on his removal. Heydrich had agreed. The defendant cannot be reproached, that in view of this fact he was awaiting further developments and did not undertake any further steps.
Contrary to all expectations, Dr. Best, Heydrich's deputy, succeeded in frustrating Braune's call to Berlin and in forcing Braune to remain in the Stapo. situation as quoted in the IMT-verdict had arisen. joining an organization which had been declared criminal, or of a voluntary staying in same. formally. His superiors used this formal membership to order him to work. He did not remain with the Stapo in order to keep his position as a civil servant, but he wanted to be dismissed from this very position as a civil servant, and he did everything in order to lose this position as a civil servant, Shortly before the outbreak of war he was fully entitled to suppose, that he had succeeded in doing so. not any guilt of his. Already by reason of this fact Dr. Braune cannot be sentenced on account of his membership in the Secret State Police. motive for sentencing him is lacking.
Apparently the Prosecution proceeded from the fact, that Braune's activity in the East was a criminal one in the program of Amt IV of the RsHA.
In his plea Dr. Aschenauer has exhaustively proved that this was not the case. I may refer to this. arising from orders (Befehlsnotstand) and of the special circumstances which lead to his behavior, the defendant's activity in the East was not a criminal one. can be drawn from the assignment in the East, apart from the fact that he never belonged to Amt IV. concerning the criminal activity of the defendant in the program of Amt IV or only for the knowledge concerning such a criminal activity. have to be valid, that "he, (the defendant), according to the Anglo-Saxon and the British secret law is entitled to be considered non-guilty as long as his guilt had not been conclusively proven in a way excluding any well founded doubts."
Military Tribunal No. II recognized this principle also in the proceedings against Oswald Pohl et all when acquitting SS-Standartenfuehrer Scheide, who belonged to the SS from 1930 to 1945.
There it says:
"The defendant admits membership in the SS, an organization deon these points. To save time of the Tribunal, I am not emitting pages 61 to 64. It is just a short sketch of the testimony of the defendant based on the testimony of his character by certain witnesses, Dr. Baessler, the witness Friedrich Sipmann and Dr. Guenther, a Protestant Minister, who has been living in Norway for forty years, and I shall proceed on page 64.
THE PRESIDENT: They will all be read, of course, these pages which you omit.
DR, MAYER: In 1930/1931, Dr, Braune becomes a National-Socialist. Openly in the witness-box he gave the reasons for this stop: Spiritual distress and concern for the helplessness and factionism among his people, for class-war and class-hatred, for the ethical and moral disintegrationin Germany was one of the reasons, another was his desire openly to advocate unity and the bond among all Germans and finally his last reason was his recognition of the threatening danger from Bolshevism (Court Transcript page 3055 to 3056).
Are these motives to be condemned?
2) In 1934 Braune becomes SD man. tion of any criticism, with the ever-increasing tendency to create yes-men and to silence the free and open expression of a man's opinion is the first reason for this step, and the other reason is the possibility of bringing to the attention of the leadership shortcomings, dangers, unfavorable developments and mismanagement. ciation for criminal purposes?
I think Ohlendorf's examination and final plea clearly prove that these men of the SD intended and did at that time. Was it a crime that Dr. Braune by dedicating himself to these aims of the SD exposed himself so much that he had to make way before stronger forces and that his superiors transfered him to police work, a job he did not turn down but which did not suit his make-up and interests. Braune did everything within his power to be sent back to his former SD work which he recognized as a suitable and necessary one. I have explained that it was not his fault if his efforts in this direction remained fruitless.
Deceit and pressure brought him to police work. Can this be called voluntary association which even IMT considers a pre-requisite for punish able membership in a criminal organization?
3) From the last mentioned step, his way led him to assignment in the East. I need not repeat the events which led to it and which special circumstances determined his actions. for mankind, and a corrupted mind, as the Prosecution would have us believe. that "Death was their tool and life their toy"? seriousness and dignity of this proceedings and that it helps us to come closer to the actual events as a primary condition for a just verdict. in Odessa is a proof of neither hatred nor of contempt of mankind similarly not of the intention to exterminate ethnical groups. This conduct proves, better than all fine speeches, his personal attitude to these events in the East. opportunity to devote himself to task of cultural and academic policy of German students. His peen and courageous statements in numerous speeches and on the occasion of conferences, his intercession on behalf of French and Norwegian students, his extensive assistance and support of the thousands of foreign students prove that he himself tried to combine theory and practice, preachings and conduct. They contradict the Prosecution's unproved assertions of contempt and hatred of mankind, self-professed superior, beings and similar charges.
4). The development of war caused Braune's transfer to Norway. What during the last phase of war under the most difficult conditions appeared as Braune's attitude, is the best proof for the motive or his conduct. Hatred and contempt for other peoples do not prompt a person to realease hundreds of prisoners to oppose a despot of the caliber of Reich Commissioner Terboven, to use pressure to obtain numerous Fuehrer decisions against him and thus to save human lives and valuable property.
different idea of What a Commander of the Security police would be like and that they had been surprised to find a human being who gave them the feeling that he meant well and whom they had to like and to trust although he was their enemy.
But more significant than anything else for Braune's conduct in Norway is the Norwegian judicial authorities quashing of the proceedings against him.
Thus we see that the picture which I have drawn of Dr. Braune's character on the basis of the numerous personal testimonials agrees with his conduct in all situations in which Dr. Braune could act on his own initiative and realize his personal opinions. Are we not to judge the motives for his conduct in the East in accordance with this general picture? victions when passionately rejecting every allegation of low and criminal instincts as driving power of his conduct, and why I still consider my client innocent in spite of all actual events which he never attempted to conceal, to deny or to distort. Even in the witness-stand Dr. Braune has remained true to himself. Straight forward honest end upright, he has given an account of himself, always endeavoring to give the Tribunal as complete and truthful a picture as possible with regard to his ideas and conduct, that the Defendant was acting under the pressure of his hateful, inexorable position and yet of the deduction that his guilt derives from the fact that he entered the party and the SD. Objective weighing of his motives which determined his course does not allow of the following charge. the SD no assignment to the East.
Wherever Dr. Braune worked whatever he did never did he reveal a motive of which he ought to be ashamed, which he could not confess openly and freely and which must cause him any feeling of criminal guilt. I am convinced that the Tribunal will not fail to consider this when pronouncing judgment upon my client. I described the events which have brought my client into the dock. tances which led to these events. acted and finally I have tried to give the Tribunal a picture of the Defendant's character and of the motives for his conduct. All this will make it clear that, fully conscious of my obligation to serve justice and to make truth prevail, there is but one thing for me to do and that is to plead that Dr. Braune he declared innocent of the charges under count I and II of the indictment as well as of the charge of membership in an organization which has been declared criminal.
THE PRESIDENT: You may proceed Dr. Belzer.
DR. BELZER: Dr, Belzer for the defendant Matthias Graf.
Your Honors and Gentlemen of the Tribunal ! arraigned before this Tribunal my client, the defendant Matthais Graf, charging him with having committed crimes against humanity and war crimes, as well as with having been a member of criminal organizations. To prove the commission of the crimes charged, the Prosecution, in a series of documentary books, has presented more than 200 individual documents. Matthias Graf, it is first contended in the indictment that Fraf had been an officer of Einsatzkommando 6 of Einsatzgruppe C. In producing the particular evidence, the Prosecution restricted itself to establish that the defendant Matthias Graf at the times specified in some of the documents, when Einsatzkommando 6 was carrying out executions, was a member of that Kommando.
Alone from this membership does the Prosecution infer that the defendant Graf shared responsibility for the executions carried out by Einsatzkommando C 6. Such an argumentation can scarcely satisfy any law of procedure of any modern constitutional State all over the world. ly referred to it - every defendant has to be considered innocent as long as his guilt has not been proven beyond any reasonable doubt.
To furnish this proof, is the task of the Prosecution. The obligation to furnish proof covers all the essential components of the crime charged, including criminal intent. It is never the business of the defendant to prove his innocence. In this connection I explicitly refer to the corresponding expositions in Wharton's "Evidence in Criminal Cases", Volume 1. The fact of the defendant Matthias Graf havinb been a member of Einsatzkommando C 6 alone cannot be valued as "prima facie evidence". But even assuming a case of "prima facie", any obligation on the part of the defendant Graf to furnish proof could not go further than to provoke a reasonable doubt as to his guilt. This being premised, it is now my task to comment on the result of the evidence in the case Graf. I. Counts I and II of the Indictment. thing about the form in which the defendant Graf is said to have become guilty of committing the crimes as stated. The name of Graf has not appeared in even nine of the reports of events which have been presented as evidence. Nowhere has it become discernible that the defendant Graf was connected with the executions which were carried out by Einsatzkommando C 6, Thus there is no legal basis for a conviction of the defendant Graf under counts I and II of the indictment, but, on the other hand, the defense has nevertheless proved' beyond any doubt that there was actually no connection between the defendant Fraf and the crimes which are the subject of this trial, In detail I have to say the following: