Through his assignment to the Einsatzgruppe, JOST's membership to Office VI Reich Security I Main Office would have stopped even if he had not, de facto, left before. As Chief of the Office VI Reich Security Main Office, JOST committed no crimes. Since his activity at that time was lawful, he could not of his own accord have gained any knowledge of the criminal nature of Office VI, as was ascertained by the International Military Tribunal. Einsatzgruppen and Einsatzkommandos were no authorities, agencies or parts of the organization of the Chief of the Security Police and the SD even less so of the Offices III, VI and VII of the SD, which were declared criminal. Einsatzgruppen and Einsatzkommandos were on the contrary militant and mobile units set up ad hoc and attached to army groups or armies for police purposes. This is not changed even by the fact that the Chief of the Security Police and the SD could give pertinent directives to the Einsatzgruppen and Einsatzkommandos. The Einsatzgruppen and-kommandos did not thereby become agencies of the Chief of the Security Police and the SD. In this case he acted as the professional agent who was at the disposal of the commander in chief of the army group and the armed forces respectively. Therefore the knowledge of the events in the East which JOST acquired in 1942, i.e. many months after his withdrawal from Office VI of Reich Security Main Office, cannot be cited as proof of his knowledge of the criminal nature of Office VI at the time when he was still office chief. This knowledge would need to be immediately connected with his activity in Office VI. However in this case the link between time and subject matter is missing. It is therefore a fact that at the time of his activity in Office VI Reich Security Rain Office, JOST was not conscious at all of any wrongdoing. direct examination. By his activity in Office VI of the Reich Security Main Office, he automatically became a member of the SS-formation Security Service.
The peculiarity of this formation was that it did not possess an organization of its own. There were neither Stuerme nor Standarten within this special SS formation Security Service. Therefore no SS service wasperformed in it either. Since this special formation existed only theoretically and actually made no appearance, it lacked the prerequisites for criminal activity right from the beginning, and no member of this formation could have been conscious of belonging to a criminal organization. of my colleague, Dr. Gawlik, for the defendants Seibert and Naumann, according to which one can judge Jost's membership in the SS; Jost's is not charged with involuntary membership in the Waffen-SS by the Prosecution. I am now coming to Point IX. commander of the Security Police and the Security Service Ostland, JOSTfor the first time received full knowledge of the Fuehrer order. It became clear to him that he was faced with a binding order given by his highest superior, the Fuehrer, and he also became aware what actions were demanded of him on the basis of this Fuehrer order. disposition, his attitude was one of opposition to this order right from the beginning. Reich, especially with regard to the Russian peril, Judaism as the pillars of Bolshevism etc. did not leave his attitude uninfluenced. not the training and exercise with regard to the duty, character and morale of an officer of the regular army, he wasyet well acquainted with such conceptions as duty, obedience, loyalty and treason.
and necessities surrounding him; and with his personal attitude. Undoubtedly he was confronted with a conflict of duties. The defendant tried to free himself from this conflict of duties by immediately and repeatedly attempting to sever all personal connection with the execution of the Fuehrer order either by having his superiors cancel the further execution of the Fuehrer-Order on the basis of his remonstrances or by being released from this order entirely. He continued to make every effort in order to achieve this -- as has been proved and explained already in detail -- without having regard for his person or for the fact that he was thereby risking his life. action, he again, at the risk of his life, undertook to delay the further execution of the Fuehrer-Order and later the HEYDRICH-Order. However, the defendant could not make up his mind flatly to oppose the order. However, the considerations which were especially impressed upon him -- as a soldier -- namely that in his position as a superior he was not to give a bad example, that disobedience on his part would undermine the discipline of the forces, that by this he would become guilty of aiding the enemy and in fact would become a traitor to his people kept him from taking such an action. At the same time the defendant was of course aware of the fact that he would speedily lose his life if he went beyond that which he had already done. training as jurist and his three years' practice as an attorney, the defendant -- in the position in which he found himself -- took the course which, to a certain extent, made him appear dishonrable in the eyes of his superiors and also his comrades, as is proved by his degrading enlistment into the Waffen SS with the rank of a sergeant.
On the basis of his character the defendant valued decision according to his conscience, more than the execution of a binding order which, it is true, he considered legal yet which he himself felt unable to carry out.
THE PRESIDENT: The Tribunal will be in recess.
(Recess.)
THE MARSHAL: The Tribunal is again in session.
DR. SCHWARZ: It must be admitted that the defendant for his part did everything that could reasonably have been exported of him. It is impossible to maintain that the defendant should have gone further and should have flatly refused an order or become what would have to be considered a traitor to his people. Yet the defendant would in fact have betrayed his people -- a crime punished by the death sentence in all civilized states -- if by flatly disobeying orders he had undermined the discipline of the forces and thus aided the enemy. author of the orders in question which were given by the Fuehrer and by HEYDRICH; that he never issued orders of his own on the basis of these orders; that these fundamental orders had existed and had already been carried out for a long time past and that under these circumstances the defendant had no possibility of making a decision of his own free will. duties and the unexpectability ......., the defendant must also be acquitted of guilt and punishment with regard to the subjective side of the case. or participation in acts -- which according to the explanations given under paragraph IV to VI is out of the question -- the defendant should also be acquitted of guilt and punishment on the basis of assumed selfdefense, of an assumed state of emergency, a state of emergency arising from an order received and the conception of a general state of necessity, as was applied particularly in the Flick sentence. be acquitted of guilt and punishment.
THE PRESIDENT: Dr. Ratz.
DR. RATZ: Dr. Ratz for the defendant Von Radetzky. make a brief remark. On 7 February I handed in a trial brief which has already been translated and which will be submitted to the Tribunal within the next few days. This trial brief is an important completion of my final plea. Your Honors -
THE PRESIDENT: Dr. Ratz, will you please follow up that trial brief and see that it does get to us quickly. Don't just assume that mechanically it will finally reach us. Keep an active interest in it yourself.
DR. RITZ: Yes, your Honor.
Your Honors: shootings which they offer in the indictment is still not sufficient wholly and completely to life the veil and clear away the fog surrounding the question of the criminal guilt of each of the defendants sitting here, in spite of all the operation reports with dates, figures and names. In its opening speech of 29 September 1947 the prosecution described the *** doctrine of the Master Race and inferior races", apparently with the intention of demonstrating how such a thing could be possible, why such acts are to be attributed to the defendants, and where the roots of their guilt are to be found. But it would mean going only half way if, in this trial of all trials, one did not investigate the character of each individual defendant and if one did not utilize every means of cognition to gain a true picture of the nature and the character of each one of them. This applies particularly if the name of a defendant, like that of the defendant v. RADETZKY, is nowhere to be found in any report of events concerning shootings. There is only a hint there for the correct judgment of what he did and and what he did not do and of what he submitted to the court; his personality.
The defendant v. RADETZKY is a Baltic German. He comes from an ethnic group which until 1939 had nothing at all be do with the Third Reich, either spiritually or culturally, and which for centuries has been a closed community in customs, morals and manner of thinking, the individual members of which have been and still are today tru representatives of their Baltic homeland with regard to what they think, feel and want. ments of the defendant v. RADETZKY in the witness stand, concerning his origin and the influences in his old homeland which had a decisive part in building his character; it is therefore, probably superfluous for me to go once more into the conditions in the Baltic countries which prevailed there until the resettlement of the defendant. I would only like to summarize once more the reasons why particularly in the case of the defendant v. RADETZKY one cannot simply assume that on the basis of his development he unconditionally endorsed the National Socialist theory and/or its result. On the contrary, a transition into the ideas of National Socialism was impossible for the following reasons:
1.) From time immemorial, the Baltic Germans nave been very part of the Protestant civilization in the North;
2.) The Prussian principles of subordination, of the obedience to civilian life in its entirety, was foreign to the Balts;
3.) The entire history of the Balts is a history of their autonomy in school, church, justice and culture; the policy of regulating all walks of life from "above" was
4.) The Balt's country of origin is a homeland for diversified principle by which peoples my live together in peace; The defendant v. RADETZKY was forced to go to Germany with his ethnic group at that time.
It would be incorrect and unjust to brand this defendant with a stamp bearing the National Socialist view of life and to try to maintain that he endorsed the Nazi ideology of the master race. For this reason he is supposed to have been an arbitrary instrument of a systematic program of genicide.
In his own homeland, v. RADETZKY had experienced the cost of belonging to a national minority. In personal danger, in personal suffering and personal injury, Besides the Germans there were other minorities in Latvia who had the same needs and troubles the Germans had. These minorities were of mutual assistance to each other, and on the witness stand v. RADETZKY has told us that he owed the upward trend of his firm in those years of special affliction from 1936 on, to close business cooperation with Jewish firms.
From 1936 on! Can one seriously claim or even believe that from 1939 on, or at least from 1941 on, v. RADETZKY in gratitude for his compulsory resettlement to Germany or in gratitude for his enforced drafting into the Sonderkommando subscribed to the doctrine of the existence of one higher and many inferior races, and that the most inferior races are the Jews and the gypsies?
Or should we rather not believe in the steadfastness of his conviction that only mutual tolerance and regard of peoples in ethnic groups can be the prerequisite of the common good, thus the national tolerance which is as deep rooted in him as a Balt as the sense of freedom is in the Swiss.
Your Honors! A straight path leads from the general character via the subjective conviction to guilt or innocence. Therefore, let us consider the character of the young RADETZKY even more closely and ask: In the period before the resettlement of the Baltic Germans to Germany, when his will was still free and he could still move unhampered, were there not perhaps traces of such traits or tendencies in his nature which pointed like the needle of a magnet to events which later occurred in the Sk4a? Did he have political interests, or what sort of interests or motives did he have? Did he have a bent for public activity, and along what lines?
Young RADETZKY's inclination were in for different fields from those of politics: he had to rebuild an economic existence for himself and his old mother and wanted to regain his lost property as a businessman. To be sure, he also had a deeprooted social sense and took over the direction of an office for vocational guildance and assitance with the German People's Community, the organization of the German minority of the country, recognized by state and international law; he founded homes for the families of white-collar workers and officials and a company-aid fund, and no one can claim that as a German he would not have stayed within the limits of legal and normal activity of his patriotism. autumn of 1939 came the resettlement of the Baltic Germans from their old homeland by the Baltic Sea to the region of Posnan. It was not the sort of emigration which takes place when the homeland has become top small for its population and now on its own initiative it seeks a new homeland in the hope of bettering its personal condition: it was an emigration determined upon by the government over the heads of those concerned. In reality it was a mass flight before the advancing Bolshevist armies which were on the verge of occupying the Baltic countries. In all reason one cannot speak of a voluntary impulse. It was nothing short of a tragedy involving 60,000 people who had to leave their homeland, their dwellings and houses, and at best could wretchedly take some furniture and a few cattle with them. to hold v. RADETZKY responsible for what happened to the former inhabitants in the new area of settlement. The Resettlement Center was solely responsible for the emigration of the settlers.
v. RADETZKY, a businessman and economic expert, took part in this portenteous transferring of his compatriots from their homeland as an economic counsel both in the appraisal of the property left behind in the homeland and in their economic care at their destination in Poznan.
The Balts set up their own Immigration Advisory Office which was staffed exclusively by Balts and served the sole interest of the resettled Balts, and there can hardly be any doubt about its character as a social, unpolitical enterprise. Once again we can observe the conduct of the defendant v. RADETZKY in a relatively free situation: he did not fawn upon the National Socialist Offices and also did not prove to be one of those National Socialist preachers who had been frustrated up to that point, but he helped and only helped, insofar as he could help at all, with his energies in the general confusion, and he was just as astonished as his Baltic compatriots when the Gauleiter of the NSDAP received the Baltic Germans with the friendly threat that he would soon exercise their domineering attitude and teach them National Socialism. In this external and internal distress into which v. RADETZKY and his compatriots had fallen as a result of National Socialism, he truly did not have the heart to acknowledge a particular belief in National Socialism or even to enter the SS.
I would like to repeat what I said in the beginning: The Balts came as refugees, who were looking for work and shelter; they had to adapt themselves and enter the Party and its affiliations if they wanted to profit by a moderate influence upon their fate: they could hardly criticize the recruiting of the Party, since they came from a foreign country. It would hardly be possible, therefore, to hold it against v. RADETZKY, if, in his hopeless situation and in the face of his existence which had again been shattered, he had joined the SS, hoping for a modest improvement in his situation. In spite of this, von RADETZKY came to the SS, however, under conditions which were for him just as unexpected and involuntary. He did not simply join through the system of pressure from above, he was forced into the SS.
It happened in this way: in the fall of 1939 the Baltic German Emigration Advisory Office in Poznan was taken over by the Repatriation Office for Ethnic Germans upon the order of HIMMLER as Reich Commissar; it would have been an exception and almost a miracle if this office had remained free from the general tendency of centralization. Had the Balts not offered any resistance, their organization would have been dissolved without opposition, and an increase of suffering, worry, and distress on the part of the resettlers would have been the certain result. Even though events might have taken the same course as previously, there was still from all outward appearances the "Repatriation Office for Ethnic Germans Emigration Advisory Office -- Poznan," and even though the Baltic German employees, among them von RADETZKY, had remained the same as far as their personality and identity were concerned and their work remained unaltered in every way, they were still assigned to the SS. During his stay in Poznan HIMMLER personally took them into the SS on 12 and 13 December 1939 and appointed them at the same time SS-offieers. simultaneously when von RADETZKY was taken into the SS he was appointed SS-Untersturmfuehrer. had come to Germany as a Baltic German and foreigner, was taken into the SS as an Officer without any further investigation of his person and without his application. The witness KUBITZ, former Director with the Repatriation Office for Ethnic Germans, has explained in detail to us this event, which is certainly a singular one, (affidavit, dated 28 November 1947, Document Book RADETZKY II, page 54 ff., Document No. 14, Exhibit 4). He remarks as follows:
"I am able to testify as follows in this respect on the basis of my practical knowledge; von the SS; made no SS oath, paid no dues, was not SS duties.
The honorary officer was carried as a belong to an SS unit.
He exercised no power of literature.
To be sure, the Honorary SS--officer Main Office and not by an SS unit.
I also remember not as a regular SS-officer."
Resettlement of the Baltic Germans, with Headquarters in Riga, and subsequently Personnel Chief of the Repatriation Office for Ethnic Germans, in other words certainly also a competent witness, supplements this statement in his affidavit of 14 November 1947 (Doc. Bk. RADETZKY II, p. 57, Doc. No. 15, Exh. 5) when he states:
"After the first resettlement, there existed a Poznan in which v. RADETZKY worked; when this Honorary officers by the SS; among them was v.RADETZKY.
From my activity as Personnel Chief of SS; it was a written order which stated that SS Main Office.
Thus v. RADETZKY was in no in connection with this transfer."
the former SS-Obergruppenfuehrer LORENZ states:
"HIMMLER, during a visit to Poznan about the middle of December 1939, had shown extreme indignation at the existence of an independent representation of the Baltic Germans in the form of the Immigration Advisory Office. By HIMMLER's order it was made an annex of the Repatriation Office for Ethnic Germans. At this occasion the greater part of the personnel was taken over and put into uniform............
In this manner also v. RADETZKY was taken over by the Repatriation Office for Ethnic Germans and it was contemplated to give him as well as several other Baltic German employees, insignia of a senior rank. In February 1940 v. RADETZKY was ordered to report to Berlin and for the first time was issued the uniform of a second lieutenant. I wish to emphasize that this transfer came about without any request or action on the part of v. RADETZKY and that he was in no position to promote or counteract it." (Doc. Bk. RADETZKY III, p. 8 f. Doc. No. 35).
May it please the Tribunal. Behind the verdict of the IMT, which declares as criminal certain organizations and groups and thus finds their members guilty of criminal acts, stands the incontestable principle of the criminal code of all civilized nations which demands that only a person, who voluntary, knowingly and willingly commits an act, shall be treated as a criminal; therefore, the IMT excerpts those members of the SS from being declared criminal who were drafted into its ranks by the State in suchaa matter as to leave then no other choice, and those who did not commit such crimes.
The admission of the defendant v. RADETZKY was a purely passive act as far as he is concerned. I further quote from LORENZ' above-mentioned affidavit?
"HIMMLER issued his orders during his inspection and not as Reichsfuehrer-SS.
With regard to governmental authority.
In this capacity Immigration Advisory Office".v. RADETZKY, who was accepted not on political grounds but for reasons connected with the resettlement action, and particularly in order that he could be in uniform while officially dealing with the Russians, had as little choice as any other person who was drafted into the Waffen-SS for purely military purposes.
In due deliberation with reason and justice conscription for state duties cannot be charged one way on another today as a crime to those concerned. No further discussion is needed of the fact that the execution of the state treaties with the Baltic states and/or Russia concerning the resettlement of Baltic Germans represented a state matter. the part of the defendants not only on the claim that they participated in shootings; in some cases, and this includes the case of my client, the accountability is based on the assertion that the defendant in question had held a responsible position and therefore had authority to order executions, but also to prevent then.
Since the defendant in question had violated his legal and moral duty of preventing the execution of innocent people, he was, for his reason alone, responsible for what happened. The prosecution's argumentation in the case of the defendant v. RADETZKY is quite simple: v. RADETZKY at the time held the rank of SS-Captain and thus was next to the highest leader of the Kommando BLOBEL, therefore on account of his position alone he should be held fully responsible. This argumentation, however, is incorrect since the SS-rank in itself did not bestow on a person any authority within an Einsatzkomamando. The position within an Einsatzkommando, and thus the authority and responsibility, was not determined by the SS-rank but, as was and still is customary in civil service setup, of every state, by the orders from superior headquarters in the same Sector, in this case by orders from the Einsatzgruppe.
If the defendant v. RADETZKY would not have been admitted to the SS in December 1939 by order of Himmler in his capacity as Reich Commissar, he would have been drafted for the Einsatzgruppe no differently, in no other manner and in no other way but under the Emergency Service Decree. The fact that v. RADETZKY was transferred to or drafted into the Einsatzgruppe and/or the SK 4a not by the Personnel Main Office of the SS or by any other SS office, but that he was drafted under the Emergency Service Decree by the Oberbuergermeister of Poznan as the local Police Authority seems to me to be the decisive factor in the solution of this problem.
with very little talent for administration and organization and a very poorly developed scent if one were to assert that the responsible leaders of a Sonderkommando, which is scheduled to carry out assignments of the gravest nature in the East, were picked in such a manner. In order to illustrate how incorrect it is to confound SS-rank and power of command in the Einsatzkommando, I quote from the affidavit of the Amtschef (Chief of Office) of the RSHA Walter Schellenberg, of 4 Oct. 47 (Doc. Bk. Radetzky I, p. 24, Doc. No. 10, Exh. 10):
"In May 1941 many ethnic Germans from the Baltic Area were drafted for the SD (RSHA) under the Emergency Service Decree. These persons were assigned to Einsatzgruppen as interpreters and experts on the country in view of their knowledge of the Russian language. These persons so drafted under the Emergency Service Decree were so-called "persons wearing uniform", in other words, regardless of their previous membership in organizations they donned the SS-uniform. There were no specific rules concerning rank insignia, they Were issued quite indiscriminately in consideration of age and previous positions and ranks." to render service on the basis of their draft by the civil authority under the Emergency Service Decree, this situation in itself explains why there can be no talk of "authority" or "power of command" as far as these persons are concerned. The need to put them in uniform resulted from the nature of their assignment; they were employed by a mobile outfit in enemy territory.
identity between von Radetzky's rank in the SS and his position in SK 4a is also substantiated by the available personnel records of the defendant von Radetzky (NO-4711). In vain we look for an order by the SS Personnel Main Office or the Repatriation Office for Ethnic Germans decreeing von Radetzky's transfer to the RSHA or to the Einsatzgruppe C or to SK 4a, in vain we look for any other indication that usually can be found in a Personal File in connection with the transfer of an SS-Leader for duty in another office. Yet on the first page of his file card we find the following data: "Trained vocation: business man; at present Deputy Chief of Ethnic Immigrants; furthermore Employer: Immigration advisory Office for Ethnic Germans at Poznan; drafted on 19 May 1941 into a Sonderkommando of the Security Police."
In this connection I would like to explicitly establish the following: Emergency Servide Decree: a less involuntarily way of committing a person to render service cannot be conceived!
Yet another fact should receive attention: from a viewpoint of seniority von Radetzky never was the senior Leader next to the Commander; both at Blobel's time and otherwise von Radetzky was subordinate not only to the Commander but also to other SS-officers. This fact has been clearly substantiated by the defendant's statements on the witness stand as well as by the affidavits of members of the Einsatzgruppe and the Kommandos which were introduced. have nurtured a false ambition to ever have held the position which the Prosecution has ascribed to him. And even by way of the relatively neutral activity of objective reporting von Radetzky was not Chief of this Section but only Special Advisor as, here again, he also was subordinate to another SS-officer in addition to the Commander. It thus is impossible to uphold the assertion that von Radetzky was second-incommand of the Kommando next to Blobel, regardless from which viewpoint one may consider his position.
that he was a member of the SD Organization which was declared criminal. The question as to whether the defendant von Radetzky became a member of the SD be being drafted under the Emergency Service Decree to a Sonderkommando, must be answered in the negative already because the IMT judgment in discussing the membership in the SD expressly emphasizes that the Security Police and the SD were voluntary organizations. I wish in this connection to quote verbatim the respective passage of the judgment (page 104 of the Nymphenburger Edition 1946):
"The Security Police and the SD were voluntary organizations. It is true that many state and administration officials were transferred into the Security Police. The assertion that this transfer was a compulsory one results in nothing but that they had to accept the transfer or to withdraw, thereby possibly exposing themselves to official disgrace. During the war the members of the Security Police and the SD had no free choice with regard to their activity within this organization and the refusal to fill a certain position, especially in the service within the occupied territories, could have inflicted heavy punishments. There remains, however, the fact that all members of the Security Police and the SD voluntarily joined this organization under no duress other than the wish to retain their position as civil servants." drafted and made liable to do emergency service may, therefore, today not be regarded as a member of the SD or the RSHA according to the sense of this judgment. tion: It may be true that the defendant was made liable to emergency service, yet this cannot mean an exoneration for him, because (1) the Emergency Service Decree of 15 October 1938 does not form a sufficient legal foundation for the drafting into the Security Police and the SD (Cf. Affidavit of Dr. Hans Heinrich of 7 January 1948, Doc.
No. 5814, Doc. Book V C) and (2) the compulsion of a draft on the basis of the Emergency Service Decree nevertheless, was not so far reaching that upon certain efforts one could not have evaded it.
In this connection the following should be stated: Reich is not under discussion in this connection. It would be of no use to attempt to prove, for instance, to a former prisoner that his commitment to a concentration camp had no legal foundation. Incidentally, the argument of the non-existing legal foundation is also substantially incorrect. In his order Gazette of 20 July 1942 (Doc. Book IV Radetzky, Doc. No. 39) the Chief of the Security Police and the SD, on his own authority, confirmed and ordered the draft into the ranks of the Security Police and the SD on the basis of this Emergency Service Decree of 15 October 1938. The Chief of the administrative department and simultaneously the personnel officer of the NuernbergFuerth Police Headquarters in the years 1933 to 1945, Regierungsdirektor Dr. Alfons Holz, further confirmed on the basis of his practical experience of many years (Doc. Book Radetzky IV, Doc. No. 40) that it was the regular practice of the Nuernberg-Fuerth Police Headquarters to draft persons into the Gestapo and the SD as well as into the SS on the basis of the Emergency Service Decree. In addition, on the basis of his practical handling of the Emergency Service Decree for years, Dr. Holz declared as follows:
"I am acquainted with Article 1 of the Emergency Service Regulation of 15 October 1938, in which is stated in paragraph III that service on the basis of the Defense Law, in the Reich Labor Service , in the Border Customs Defense (Zollgrenzschutz), on the Police etc. always has priority over Emergency Service. This regulation is to be understood to the effect that service on the basis of the Defense Law, in the Reich Labor Service, in the Border Customs Defense, in the Police, etc. cannot be altered by an Emergency Service draft, and that persons who are clearly serving on the basis of the Defense Law, in the Reich Labor Service , in the Border Customs Defense, in the Police, etc.