The Einsatzgruppen are neither SS- nor SDunits, but mobile organizations of a special type and the execution of the Fuehrer-Order was assigned to them as a Security Police security missions. The English translation contains the expression Security Police task instead of Security Police Security missions. The knowledge of this activity of the Einsatzgruppe cannot therefore establish membership in the criminal circle of persons of the SD or the SS. SCHUBERT during his following activity in Berlin and Augsburg considered himself entirely free and without further connection with any injustice perhaps committed by Einsatzgruppe D in Russia. His interrogation also reveals that he did not know of other crimes committed by the SD and SS, which has give to the organization as a whole the criminal character as pronounced in the IMT - judgment. criminal penal law SCHUBERT is to be held accountable, it must not be overlooked that Control Council Law No. 10 represents on extremely disputed legal basis, since international law cannot be ordered to the vanquished by any authority whatever and national criminal laws, could not be applied retroactively. However since the given situation cannot be altered at present, I ask the High Tribunal to interpret the forms of participation of the Control Council Law No. 10 restrictively. Only such persons should be held accountable as "perpetrator" and "participant" in war crimes and crimes against humanity, to whom own initiative and a causal activity can be proven. Whoever was as an insignificant figure, pressed into a mechanism of tools by, governmental coercion, should at any case be freed of responsibility to international law. If today in practise toward the vanquished the old principle has been abandoned that individuals are not responsible according to international law then the criminal responsibility for governmental measures must by no means be extended to include the broad mass of those, who neither could overlook the cause nor the purpose, neither the tenability in international law, nor the actual necessity of those measures by the state leadership and who by no means could dodge them.
His position as adjutant and director of the office with the staff of Einsatsgruppe D did not connect SCHUBERT with the planning or carrying out of executions; the acknowledgment of reports on executions carried out, does not include consenting participation in the meaning Art. II. fig. 2c of Law No. 10, since this consent always must be given prior to the completion of the act and must be causally connected with it. Also his presence at the execution in Siferopol did not bring SCHUBERT in such a causal relationship to the main act since any promoting action remained absent. His presence to which he was ordered cannot even be regarded as a consent, just as little as his presence in the theater of operation implied consent to the war. The mere presence does not prove any affirmative mental or intellectual attitude toward the events taking place. If one would now want to close the gap in the chain of evidence by referring to the membership in the SD, declared as criminal, then a circulus vitiosus would be formed that way, from which no innocent man could find escape. Such reasoning would adopt the same kind of logic to which HITLER obviously fell fictim, when he issued the unfortunate order under discussion here. Whoever under martial law is commanded to join a mobile unit, to whom the highest state leadership has assigned criminal tasks, does not by virtue of this governmental act enter into a criminal connection with the commission of war crimes and crimes against humanity, since he was coerced into an emergency that was inescapable. To him also the comprehensive specifications of 2d and 2c of Art. II of the Law No. 10 cannot be applied without violating the fundamental principlesof all national codes and even moreof international law.
Art. 347 of the American Rules of Land Warfare of 1940 declares individual members of Armed Forces to be exempt from punishment, if they have committed crimes upon order of their government.
The same stand was taken by the British "Manual of Military Law" of 1944. This principle dominated the common law of warfare throughout both World Wars and could not be made ineffective out of force by legislation of any group of powers. of the soldier by at the same time accusing him of crimes against humanity. So far no satisfying definition of the notion" crimes against humanity" has become known, At any rate the war crime seems to be distinguished from the crime against humanity only by being in causal or only timely connection with the war. Accordingly facts which under the aspect of common law of warfare remain impunitive cannot become punishable as crimes against humanity. in dealing with the question of membership of SD-persons in criminal organizations. An SD-member in a wider sense also belonged to the SS, since the SD was part of the SS. SCHUBERT came to the SD directly from the HITLER YOUTH so that he belonged only indirectly to SS via the SD. He never belonged to any SS-unit. Therefore the High Tribunal will bear with me, if I do not put forth any further arguments in the support of my request that this indirect SS-membership of SCHUBERT may be disregarded. his private and official life such a clean and truthful character, who has chosen the principle of truthfulness, one might say, as his life maxime, that a man of this kind would have become such an honest and valiant fighter for the rights of the oppressed nations, as we have seen him from the affidavit, if he had not been of a clear conscience. It is just this clear conscience which makes SCHUBERT states all his actions and thoughts so precisely and without circumlocation, as we have seen here at the trial. Pure conscience speaks from all of SCHUBERT's words.
And this is proof for me that there is no consciousness of criminal action here. And when the High Tribunal after Counts 1 and 2 will also have to decide on Count 3, then I know that the Tribunal in its endeavour to find the truth and serve justice will not pass over the fact that it came from the innermost, honest conviction, when SCHUBERT, upon questioning at the start of the Trial replied that he considers himself not guilty. my client. During the interrogation through some kind of unclear translation the impression was given that he wanted to express some suspicion that something was being put into his mouth unjustly. This was during the discussion whether he had signed several pages of his affidavit, pages 4614-4616 of the English transcript. My client only wants me to make the statement that he did not have any suspicion of any kind. He did not mean to express any suspicion in this respect so that it is only an assumption which is not based on any kind of premeditation.
THE PRESIDENT: Very well. The record will show that explanation, Dr. Koessl.
Dr. Schwarz for the defendant Jost: Before I begin with my presentation I would like to point out, especially to the interpreters, that I shall not mention the quotations, especially those that are in parenthesis.
THE PRESIDENT: The Court Reporter will be directed to include these quotations in the transcript even though not read by counsel.
DR. SCHWARZ: Thank you, Your Honor. little shorter I shall skip the introduction, that is on pages 1 to 7. In view of the time allotted me I must also disregard the general legal questions, or leave them out. They are pages 8 to 21, that is II. Thus I shall begin with III which concerns the personality of the defendant. That is on page 22. I consider this an appropriate moment for a description of the defendant's personality. In doing so, I refer to my statements in the trial-brief for the defendant Jost, pages 50 - 66. from a respectable, honest and upright bourgeois-family, may be made from the depositions of a variety of personalities, former SS leaders or subordinates, National Socialists and non-National Socialists, political persecutees and others, the truest picture being evolved from this very multiplicity and diversity. thanks to a subsidy granted by Jost, considers the latter as a reliable and upright man , resembling the type of a respectable official who endeavored to hide his natural sensitiveness and soft-heartedness behind external self control and reserve. His bearing was clearly indicative of the discord which, in the case of National Socialists, so often resulted from disagreement of ideals with party-reality or disparity between imposed duties and personal feelings. Thomashausen was impressed by Jost's modest standard of living and the simplicity of his bearing, very much in opposition to the habits of others during that time (Affidavit Thomashausen Doc.
Book Jost I, Doc. No. 3, exh. pages 8-9*.
Dr. Best, the former Ministerialdirektor and Chief of Office I of the RSHA (Reich Security Main Office), who has known the defendant since 1930, brings into prominence Jost's almost exaggerated modesty, his calm, reasonable views and his strict sense of justice. With Heydrich and Heydrich's right hand man Mueller, Jost passed for "a lawyer burdened with inhibitions and not prepared to comply with everyone of Heydrich's wishes." first adjutant and Chief of Himmler's personal staff who knew Jost officially, the latter was described, by various high-ranking SSleaders as an upright, calm and conscientious character. The general's personal, official and special contacts with Jost confirmed this impression. Jost was known to defend his personal convictions in a calm, and decisive manner even before his superiors. Wolff had never been able to discover in Jost a leaning towards unbridled excesses or cruelty. On the contrary, Jost was recognized as a man whose actions were ruled by a sense of fairness. General Wolff did not have the impression that Jost was a careerist.
The Latvian Prior Sanders testifies to Jost's readiness to help and his kindliness when he addressed himself to Jost for aid to prisoners. ary for the Eastern Territories at Riga, had the humanly best impression of Jost. He has never heard anything to his disadvantage. On account of his calmness and serenity, Jest enjoyed the best possible reputation and great popularity both with his subordinates and with the population (Affidavit Jedicke Doc. Book Jost I, Doc. No. 15, exh. 15, pages 52-54).
industrious man of open, calm and honest character. Jost had no leaning to excesses (Affidavit Deeken Doc. Book I, Jost Doc. No. 1, Exh. 1 pages 1 - 3). Worms Police Station, Jost was trusted implicitly by the non-National Socialist circles among the people and also by the Jews, while on the other hand, the Party was not satisfied with his activity at the Worms Police Station, because he rejected the Party's attempts to interfere, and saw to it that the Jews were treated justly. All those who applied to Jost officially, were treated equally and received advice and assistance irrespective of their political views. Jost was popular with the Police officials on account of his just behavior. He took under his protection even those who were not Nazis in the event of their being attacked by the Party, and in many instances preserved their posts for them. Seitz confirms Jost's intervention on behalf of Pastor Dogen. Jost freed Rahn, the former Oberguergermeister of Worms from a mass demonstration in which he was in danger of losing his life. straight forward human personality who treated his subordinates in a correct and decent manner. a reserved, quiet and gentle p erson whose reserve bordered on indifference. Jost could only be induced to drop his reserve for the strongest reasons; then, however, he stubbornly defended the point of view which he held to be right.
Dr. Wohlgemuth, surgeon and medical practitioner in Berlin, regarded Jost as being tolerant, and in no way harsh or ruthless. He was modest in his way of living and in the conduct of his household affairs. Wohlgemuth was repeatedly surprised by Jost's humane and just attitude which he combined with objective criticism.
Jost also proved his readiness to help this witness inasmuch as he put him in a position which enabled him to reject the Gestapo's demand that he (Dr. Wohlgemuth) should spy on Prof. Sauerbruch. korn which I shall skip. I shall continue on page 28. the main point. The salient qualities of his character which are repeatedly confirmed are his strong sense of right, his justice, decency humaneness , goodness and integrity, his modesty and tolerance and the lack of every ambition. by nature, and not a militarist. He did not receive the Prussian military type of officers training. He always endeavored to find employment in civil administration, and in any case, his peacetime occupation in the SD was also of a more administrative character.
It should now be easy to illustrate the defendant's political attitude, based on this clear and fine foundation of his character, in order to gain greater understanding of his personality. with regard to the contents of the documents submitted by the Defense and I request the High Court to take into consideration these documents which only give the right picture if read in this connection. fanatic nor a bigot, that he not only rejected excesses, but wherever he had the chance to do so he opposed them sharply, that he had helped people in their political emergency without thought of his own advantages or disadvantages and that for this very reason he also experienced serious difficulties in his official life. Thus as a political entity he also tred the way of decency, tolerance and helpfulness.
Jost's attitude in the Jewish question can be gathered from the affidavits: Deeken, Eisfeller, Thomashausen, Sanders, Klingemann, Everwien, Waneck, Pfarrer Degen, Annemarie Jost, Seitz, Dr. Wohlgemuth, Dr. Spohr. the Jewish question which ran counter to that which was demanded of him. The affidavit by Thomashausen also gives exhaustive information in this instance, as to how the defendant exposed himself without regard to his person and position, and indeed risked his position and got into difficulties with his superior. I would like to refer to the evidence given by the defendant Jost, page 1158, English page 1141 in the transcript, in which he described how Heydrich reproached him for his conduct which was not, sufficiently National Socialist in character, and that in this instance he saw himself obliged to give up his office. The affidavits of Thomashausen and Waneck confirm these statements. Further information concerning the irreproachable conduct of the defendant with regard to the Jewish question is given in the affidavits by Eisfeller, Everwien, Seitz, Spohr and A. Jost. treated the Jews in a just manner, that the Jews regarded him as a man who acted justly, and his indignant repudiation of the measures taken on 8/9 November 1938, are mentioned several times. picture of the character of the defendant and have shown how, in politics, he conducted himself decently, how his relationship stood with regard to opponents of the Nazi system, how he assisted them out of his sense of right and justice, and also how his attitude towards the Jewish question was dictated by motives of absolute justice and finally how he was not afraid to face official and personal disadvantages.
directly or indirectly connected with the defendant, this comprehensive illustration of his personality must also be taken into account.
COURT NO. II, CASE NO. IX.
THE MARSHAL: The Tribunal is again in session.
DR. SCHWARZ: I now come to point IV, the position and responsibility of the defendant. Counts I and II of the indictment. dictment the defendant is reproached with his activity as Chief of Einsatzgruppe A. At the same time reproaches are levelled against him, which do not concern the affairs of Einsatzgruppe A, but incidents in the field of the civil administration, in fact the office of the Reich Commissioner for the Ostland. a single concrete reproach can be made. There is no assertion, still less any evidence of any case of murder occurring either in the SK Ia or in the Commandos Krasnowardeisk or Leknia - the only two commandos of which Einsatzgruppe A was composed. capacity of Chief of Einsatzgruppe A, the indictment gives an entirely wrong idea. Of Jews, Communists and Partisans of whom considerably more than 100,000 were, according to the Prosecution, allegedly assassinated in the area under the control of Einsatzgruppe A, not a single person was murdered during the period in which the defendant Jost was in charge; more details will follow later. Even according to the statements of the Prosecution, out of considerably more than 100,000 assassinated persons only about 1,300 persons were killed while the defendant was in charge, i.e. an infinitesimal fraction of the number which the Prosecution asserts were killed in the area of Einsatzgruppe A. This must be emphasized since the Prosecution has assigned to the defendant a position not due to him.
The defendant cannot be held responsible for the actions of his predecessors. hald responsible in his capacity as Chief of Einsatzgruppe A, since the incidents described under Nos. 6 S and T of the indictment took place in the area of the office of the Reich Commissioner for the Ostland which was under civil administration; it must now, for safety's sake, be investigated whether the defendant can be held responsible for these incidents in his capacity as Commander of the SIPO and of the SD (security service) for the Ostland, although as regards the time when they occurred the defendant cannot be charged with these incidents. question in my trial brief on pages 36 - 43 to which I refer here. Reich Commissioner Ostland was composed of the territories of Esthonia, Latvia, Lithuania and White Ruthenia. The Reich Commissioner was in charge; he had powers that cannot be compared to those of the Chief of any other agency since he was subordinated directly to the Fuehrer. He was the immediate superior of the Higher SS and Police leader who, on his part, was the superior of the Commander of the SIPO and of the SD, consequently of the defendant Jost. was invested with actual powers. He was the superior of the local SS and Police leader to whom the Commander of the SIPO and the SD were in turn subordinate.
of the SIPO and SD. However, this title does not represent the actual state of things. Ohlendorf and the witness Erlich, the Commander of the SIPO and the SD Ostland had, in practice, the position of an Inspector (a post which was usual in the Reich territory) and not the position of a real Commander (transcripts of 14 October 1947, German page 592, English page 586, cross examination Ohlendorf - trial-brief for Heinz Jost page 41 - affidavit Erlich, Dec. Book Jost III, German and English page 13.) plans which have been submitted (Doc. Book Jost III, page 14/15) illustrate that the power of command of the Commander of the SIPO in the Ostland was restricted. in question, the extent of the area - about 400,000 qkm and in a country without roads and railways it is natural that responsibility can in practice only rest with the local agencies which must, therefore, have the necessary powers; in this case it was first of all the Commissioner General and, under him the SS and Police leader who exercised these powers. This fact is apparent from the letter which the Commissioner General in White Ruthenia sent to the Reich Commissioner, and in which the Commissioner General complains about a campaign against Jews. of the SIPO and the SD, but, as I said, to the competent SS and Police leader locally. The statements of Sandberger and of witness Hartel give particulars about the responsibility of the SS and Police leader; they confirm the above assertions.
the organization of the Civil Administration, the defendant Jost was also limited in his work by Heydrich as soon as he took up his duties. Actually the restriction ordered by Heydrich only confirmed the existing state of things. defendant is not responsible for individual executive measures carried out locally. raised by the Prosecution will show the same result.
can be made concerning the various points under counts I and II of the Indictment:
1. Report of Events USSR No. 166. This report, dated 27 March 1942, was put together, on this date , from earlier reports received from the competent headquarters. On 27 March the defendant had not yet taken over his duties as Chief of the Einsatzgruppe and Commander of the Security Police. He took up office only on 29 March 1942. In view of the facts which have come to light during the trial, it is, I think, quite clear that the events set forth in the report took place a long time before 27 March. Again and again it has become clear that a few weeks passed between the occurrance of the various incidents reported from Russia and the drawing up of the reports in Berlin. The defendant can, therefore, in no way be held responsible for the events referred to in this report; neither did he nor could he know anything about them; much less could he have taken part in them. on 27 March 1942 when that Einsatzgruppe reported that 15,000 Jews had been shot at Tscherwen it has not produced any evidence to bear this out. But even if Jost had actually commanded Einsatzgruppe A as early as 27 March 1942, he could not be held responsible for this incident, since, in any case, the incident itself took place and must have taken place some time prior to 27 March 1942. this report, dated 17 April 1942, was carried out because of Communist activities and the maintenance of connections to partisan groups. Stick hand grenades and explosives had been found with some of the Communists. The execution took place - as in all cases of this type after individual investigation and proof of guilt.
in whose case the investigation showed that they had indulged in Communist propaganda up to the last moment. cannot be denied. As regards the justification of this conduct I would expressly refer to the quotations mentioned in my trial brief, p. 45; particularly to ordinance No. 1 of the Military Government, which show that then the death penalty is provided for offenses considerably less grave than those under discussion here. It must be remembered in this connection that Communist propaganda in occupied Russian territory did not mean the study of Karl Marx's or Lenin's doctrines, that Communist propaganda there meant, on the contrary, inducement to such participation in sabotage, terrorism, partisan warfare and incitement to violence, as well as instigation to murder, arson and manslaughter. Such actions are incompatible with the laws of war and have quite definitely entailed in any war the death penalty for the perpetrator according to general laws of war. in any way in these actions. He has neither issued orders nor given his consent nor did he know anything about these measures before they were carried out. For this reason, too, criminal responsibility of the defendant is out of question. 14 Jews who - among others - were shot at Kauen - were shot not because they were Jews, but because they, too, had made propaganda for Communism. This became quite clear during the direct examination of the defendant. perpetrators who were Jews had to be described only as "Jews" and not as "saboteurs, marauders, etc." in the various accounts and incident reports. Sandberger stated in his testimony among other matters: "According to the order.... Jews had to be entered in the column headed 'Jews' even when they were treated as Communists."
tions on this document, to which I may make some reference.
He made it absolutely clear that the "report period" in the excerpt submitted by the Prosecution refers to, and must of necessity refer to the month of March 1942, or to be more exact the period up to, and including 27 March 1942. This is a monthly situation report by the Commander for Latvia for March 1942, which was only processed in Berlin on 24 April 1942. made from the complete report. In the original report a number of events, all of which occurred in the time of 1 to 27 March 1942, are listed in chronological order. Not one single date later than 27 March is to be found. According to this there can be no doubt that the execution of 1272 persons, which the Prosecution claims to be the responsibility of the defendant, must have occurred prior to 27 March 1942, which precludes any responsibility on the part of the defendant for this event. said to have been shot in Riga on 14 April 1942. The testimony of the physician Drikifis was neither taken down properly, nor sworn to in anyway. It cannot even be seen when, and to whom the statements were made. This in itself is already a reason why the document cannot be given any weight as evidence. Furthermore, the alleged statements of this doctor are in such general and uncertain terms that nothing can be taken from it which could incriminate the defendant Jost. Among other things, he is alleged to have said, "on 14 April, the SS men came to the hospital and took away more than 200 patients." And further, "In October 1942, the Germans took away approximately another 100 insane." Apart from that Drikifis is said to have put the remark "evacuated by the SS Police" on a report which has not been submitted either.
building of the department of the commander of the Security Police and SD, no indiccation whatsoever may be found that the defendant Jost was in any way connected with the 243 insane allegedly killed on 14 April 1942. No unit number can be ascertained, to say nothing of the name of a person responsible; it must even be seriously doubted whether this killing took place at all, as on the report submitted in photostat there is a signature, not handwritten, but merely typed, altogether an unusual procedure. The two other relevant documents were not even submitted by the Prosecution. Security Police and SD Latvia addressed to the Registrar's Office of the City of Riga, dated 19 May 1942, as well as the two other documents of the same kind which were allegedly found were said to have been discovered in the building of the sender and not that of the addressee. It is in practice unimaginable that the mailing of these three documents, the dates of which are several months apart, should have been omitted. 1942, should only have been reported on 19 March 1942, an incident on 14 April, should have been reported only on 28 May, and an incident on 22 October 1942, should have been reported only on 15 March 1943. Even if they were genuine it would be quite impossible to deduce a responsibility on the part of the defendant from them, especially in view of the fact that the killings, if they happened at all, could have been carried out by SS units which were not under the command of the defendant, or by any other police units, or even by the Wehrmacht. tains any reference whatsoever to the alleged happenings. Since, in other cases of liquidation of insane persons which were brought up during the trial, they are referred to in the reports of events there appears to be no reason why these happenings should not have been reported.
These circumstances almost force one to draw the conclusion that the alleged killings did not take place at all. order for the killings or that he was involved in any way in the happenings of 14 April 1942, which are the only ones occurring during the period of his responsibility. the International Military Tribunal and therefore has special value as evidence, then it may be pointed out that the happenings at Katyn could not be cleared up by the International Military Tribunal either. Considering everything it is absolutely plausible that the defendant neither knew before the 14 April 1942, of planned measure against the insane, nor after the 14 April 1942 heard of the alleged execution of such a measure.
Amongst other things it is stated in this report, "On 9 May 1942, 28 members of the Partisan organization White Ruthenia were publicly executed by hanging in the city area of Minsk . Furthermore, 251 persons, mainly Partisans and Jews were shot on the same day." believes itself able to draw the conclusion that of the 251 persons, at least part of them were Jews who were executed because they were Jews. were Partisans who were sentenced on the basis of a previous court trial and that this was a deterring measure brought about by the fact that the Partisan situation in the city area of Minsk had become so tense and serious at that time, that the Wehrmacht considered such measures necessary, and even Commissar General Kobe who, according to the Prosecution's own statements, was pro-Jewish and by no means particularly aggresssive, could not say anything against them.
Prosecution Document, Document Vol. 5-A, Document No. 2262. one may conclude, without laying oneself open to a charge of indulging in wishful interpretation here, that the 251 persons not executed publicly were all Partisans or at least such persons who were guilty of some infringement of the laws of warfare which carried the death penalty. This is supported by the fact that the 251 persons were not all Jews, in other words, it was not a proper action against Jews. The same applies here as in the abovementioned case of Olita of 7 April 1942 (C. 2), or Kauen. The fact that the number of Jews among those executed was shown separately from the others does not by any means prove that they were executed merely because they were Jews. As was the case on other occasions, this was probably done only to determine how many Jews were taking part in Partisan, or other activities. (Statements Sandberger, transcript of 17 November 1947, German page 2461, English page 2410). all customary to carry out actual executions of Jews as understood by the Prosecution, together with the execution of Partisans, etc, On the other hand, Jews, as far as they themselves were Partisans, were, of course, shot together with other Partisans, as undoubtedly was the case here. In addition to this it must in particular be considered that, according to orders given, the executions of Jews were to be carried out as inconspicuously as possible. This fact, too, speaks against the assumption that the Jews in question were supposed to have been executed merely because they were Jews. At the time under discussion many thousands of Jews were still living in Minsk, so that, if one had wanted to carry out an action against Jews, one would not have confined oneself to a small number, and moreover carried out the executions together with those of the Partisans. Hence, the argument of the Prosecution concerning the interpretation of Document NO-5188, Exh.