DR. SURHOLT: Your Honor, the prosecution -
THE PRESIDENT: Might you indicate your name and the client you represent for the purposes of the record?
DR. SURHOLT: Attorney Surholt for the Defendant Dr. Rasch. The Prosecution charges the defendant Dr. Otto Rasch with
I. Crimes against Humanity
II. War Crimes
III. Membership in Criminal Organizations (SS, SD and Gestapo). The defendant pleaded "not guilty" in the arraignment of the Tribunal. To motivate this and to contest the indictment, the Defense will submit the following:
1. The Einsatzgruppen were established in the early summer of 1941 in accordance with such principles as are generally recognized as admissible from the view point of international law in the event of war. The forces selected for this assignment received a special but purely military training. The instructions given to them in view of the tasks with which they were to be charged shortly in the course of the assignment pertained solely to a security of the "military zone in the rear". This security was to be attained by rendering harmless saboteurs, by fighting partisans, and in general by fighting all such elements as, according to general war experience, endanger the safety of the fighting troops in areas already occupied by them. Any form of training or even an indication for an assignment of such a nature as the Prosecution is now quoting under the name of Crimes against Humanity and War Crimes was not given, neither could it be surmised. Thus the defendant Dr. Rasch had no reason to reject the command over Einsatzgruppe C with which he was charged.
2. Accordingly, the assignment of the Gruppen, or at any rate that of Gruppe C headed by Rasch, was motivated by military necessity. The orders he passed on to the subordinate Kommandos were based on adequate prerequisites. Executions were only to be carried out if the actual facts of the crime were established, they had thus to be limited to cases involving persons who had participated in murders, looting acts of sabotage, etc.
3. Things changed only when new orders came out to the effect that in the area to be made safe by the Einsatzgruppe the Jews including women and children, were to be annihilated. The defendant Dr. Rasch can no longer recall the exact date of this order. It may have been in August, but also in September 1941. The order was transmitted to Rasch by SS-Obergruppenfuehrer Jeckeln. This order seemed so incredible to Rasch that he immediately left for Berlin to obtain a direct explanation. The first evening he got as far as Cracow from where he reported to SS-Gruppenfuehrer Heydrich by telephone to consult him in this matter. The latter confirmed the contents of the order as binding pointing out explicity that it came from the Fuehrer himself and was to be carried through under all circumstances. he received to the units under his command, although he personally not only disagreed with these orders, but rejected them. Although he was a high SS-leader, yet he had no possibility directly to refuse compliance with that order without exposing his own person to immediate grave danger. Like a number of other high SS-leaders before him, he would first have been sent to a KZ and then to one of the so-called "lost battalions" (Verlorener Haufen), whose members were assigned to especially dangerous tasks and thus systematically annihilated. It was moreover evident from the situation that a refusal would not have prevented or even hindered the execution of the order. Therefore, without refusing to comply with the order as such, he attempted to obtain release from his command on grounds which appeared to have no bearing on the matter. Consequently, he was relieved of his function and sent on leave in October on his own request because of his health and divergencies in opinion with Reich Commissioner, Gauleiter Koch. duties as higher SS and Police-leader in France and Northern Italy. IN view of his experiences, Rasch gave ill health as a reason, in order to be excused from further duties.
He looked around for a civilian job; at first he intended to return to the legal profession but then changed over into industry by joining the Continental Oel A.G. He remained with that firm to the end of the war.
4. The Defense is going to prove the facts stated up to the present partly from documents presented by the Prosecution, partly through witnesses, and particularly through putting the defendant into the witness stand in his own case. intends to show that the defendant Rasch obstructed hindered the aims and measures of the Party on several other occasions as well. In that way he opposed the Party in their endeavors to interfere in the normal communal administration, consciously risking and losing his position as Lord Mayor of Wittenberg. He further saved political and also racial persecutees from the concentration camp and even from death, without being prompted by any but purely humane motives. In that he even went as far as to use his rank for giving orders to subordinate agencies, to which he was not authorized in the course of duty. Evidence to that effect will be given through witnesses and the submission of defense documents.
5. With regard to the legal position, the Defense is fully aware that, according to Article II 4b of the Control Council Law No. 10, the fact that an action was committed under orders does not exempt a person from responsibility for a crime and can, at most, be taken into consideration as a mitigating circumstance. It is, however, the opinion of the Defense that the written law is always subordinate to the recognized laws of nature. No man can be denied the right to defend himself in a state of necessity. It will be the task of the Defense to elaborate on this idea in detail, at the conclusion of the hearing of the evidence.
6. Rasch was a member of the SS and the SD - not, however, of the Gestapo (Secret State Police). In that respect, however, he denies having had the intent necessary for his conviction in accordance with the rules laid down by the verdict of the IMT.
May I make some explanation? The preparation of the defense of Dr. Rasch, owing to the sickness of my client, during the decisive days of the last week -
THE PRESIDENT: Slowly.
DR. SURHOLT: On the other hand, however, in particular, during the decisive days of the last week for the reason that I was sick myself, and also my right hand was badly burned -- owing to that, I have not proceeded very far in preparing my case as yet, and, in particular, I have not yet discussed the case of the prosecution in detail with the defendant. I therefore ask, that the case of Rasch be not heard yet. I ask, therefore, that the case of Rasch be put back for the moment, as I am not quite ready yet. Quite apart from the fact that the Tribunal has not yet decided as regards my motion to separate the case of my client.
THE PRESIDENT: I don't quite understand what you mean by your request that the case of Otto Rasch not be taken up for the moment, because there is no possibility that his case will be called for the moment. We have first all the opening statements. Then we will have Ohlendorf's defense. Then there will be Naumann's defense, and then the Joost defense, and Rasch won't be reached for some few days.
DR. SURHOLT: Yes, I repeat, I cannot see how long it will take. I only say since my predecessors are not present, I will not have sufficient time.
THE PRESIDENT: Well, at the present moment, you are not threatened with any immediate presentation of your client. Let's wait and see what develops. As the situation at present presents itself, I do not see where you have any problem at all. If in the matter of three of four days you seem to feel that you are being pressed unduly for time, then your motion to the Tribunal and we will rule upon it.
DR. SURHOLT: Thank you very much.
THE PRESIDENT: In view of the lateness of the hour, perhaps we won't take up another opening statement, but will now recess until 1:45.
(A recess was taken until 1345 hours.)
THE MARSHAL: Persons in the courtroom will please take their seats.
MR. WALTON: May it please the Tribunal, the Prosecution was informed by the Tribunal that it desired to hear the testimony of Mr. Rolf Wartenberg concerning affidavits and related matters, and that it make him available for cross-examination by the Defense. If the Tribunal desires to hear him at the present time, he is available.
THE PRESIDENT: I think it might be well to call him now so that his intended trip to the States will not be retarded.
MR. WALTON: Mr. Wartenberg is just outside the door.
THE PRESIDENT: Yes; you may call him to the witness stand.
DR. GAWLIK (Counsel for defendants Naumann and Seibert): As a result of the fact that the witness Wartenberg is being called now, we are in a somewhat difficult position. We only fouud out about this today, and we had no possibility--at least I had no possibility--to discuss this with my client. Therefore, I should like to have the Tribunal grant us the possibility of having the witness called again tomorrow. If I have the opportunity to speak to my client tonight about this, we should call him tomorrow. I am of the opinion that during the examination of one or the other defendants it might be necessary to call the witness Wartenberg again. I also would like the Tribunal to grant us that.
THE PRESIDENT: Were you here this morning, Dr. Gawlik, when I made my announcement concerning this witness?
DR. GAWLIK: Yes, I heard it this morning.
THE PRESIDENT: Now, I would like to suggest to Defense counsel that when an announcement is made by the Tribunal, if any of counsel have any observations to make, that they be made then, When I said this morning that Mr. Wartenberg would be called this afternoon you did not inform the Tribunal that you were not prepared to question him this afternoon.
No defense counsel suggested in any way that they were not entirely pleased with that arrangement. Now, we have brought Mr. Wartenberg in, and now you tell me that you are not ready to proceed.
DR. GAWLIK: Your Honor, I think there must be a misunderstanding. When the announcement was made this morning I was not here. I only heard about it from my colleagues this morning.
THE PRESIDENT: Well, then, you did not answer my question correctly when I just asked you if you were here this morning.
DR. GAWLIK: I beg your pardon, I had to adjust my channels. They were not adjusted to the German language.
THE PRESIDENT: Well, then, let me repeat, for your benefit, Dr. Gawlik, what the situation is. Mr. Wartenberg is an interrogator, and you know that he took many--if not all--of the statements of the defendants. He is soon returning to the United States and must be leaving Nurnberg during the next two or three days. He may not be called, as you suggested a moment ago, intermittently, as defendants take the witness stand. He must be interrogated now--or not at all. I do not mean this very moment, but very quickly. now, whatever you want to put to him, we will see about having him appear a little bit later in the day, or possibly tomorrow morning. But you must absolutely dismiss from your mind the thought that you can call him later on, because he will not be here. He will not be in Europe.
DR. GAWLIK: I understand, Your Honor; and I do not know whether that would be required at all. I only wanted to reserve this right.
THE PRESIDENT: Mr. Walton, would it be convenient for Mr. Wartenberg to be here the first thing tomorrow morning, just so that Dr. Gawlik will have an opportunity to talk with his client?
MR. WALTON: Your Honor, I have not conferred with Mr. Wartenberg on that particular point, but if the Tribunal will ask him I am sure that it can be settled now.
THE PRESIDENT: I will ask you, Mr. Wartenberg: Could you appear here tomorrow morning?
MR. WARTENBERG: Yes, sir.
THE PRESIDENT: Yes. Very well then, Dr. Gawlik. I hope you have the right channel working. Mr. Wartenberg will be here tomorrow morning at nine-thirty, available to all Defense counsel for examination on the subject matter which I have mentioned. So we won't need you this afternoon. I am sorry to have brought you in, Mr. Wartenberg.
(Witness leaves the stand.)
DR. DURCHHOLZ (Counsel for defendant Erwin Schulz): of the Prosecution, and to the reading of documents by the Prosecution may I make the following statement. Erwin Schulz replied by pleading "not guilty" to the question of the Tribunal, whether he pleads guilty or not guilty to the grave charge preferred against him, this reply sprang from his innermost conviction. This reply was by no means a matter of course which was expected with a certain irony; especially it wasnot intended as two empty words implying a cowardly flight from any responsibility to the world, whenever such responsibility might be established. The defendant rather wanted to express to the Tribunal competent to judge his actions that he can, in his conscience, take the responsibility for what he has done in his life. He has consciously declared that he feels absolutely guiltless in face of the monstrous charges brought against him.
May I demonstrate in my argument on what this feeling is based? right and justice while pleading before this Tribunal. I shall endeavor to assist in clarifying all acts and in establishing all facts which will be of importance for the defendant's course of action.
I may assure the Tribunal that I shall represent the interests of the defendant without passion and in all frankness in order to establish the truth. Crimes Against Humanity, in which he is supposed to have participated in some form defined in Control Council Law No. 10, in actions representing murder, extermination, imprisonment, and other inhumane acts, committed on political, racial and religious grounds, actions which are said to be part of a systematic program of genocide, having as its aim the destruction of foreign nations and ethnic groups by murderous extermination. having by the same actions committed war crimes, acts which are said to have been committed in violation of the laws and customs of war, such as murder, ill-treatment of prisoners of war and of the civilian population of countries and territories under the belligerent occupation or otherwise controlled by Germany, as well as wanton destruction not justified by military necessity.
Under Count III of the Indictment the Defendant is charged: 1.) with having been, after 1 September 1939, a member of the Schutzstaffeln of the NSDAP--(SS) and 2.) with having been a member of Amt IV of the Reichssicherheitshauptamt (Gestapo); that is, of organizations declared criminal by the International Military Tribunal and by paragraph 1 d of Article II of Control Council Law No. 10, but only under definite conditions, which have, however, also been proved beyound doubt. fulfilled by asserting under paragraph 8, letters Q to W of the Indictment, that the defendant, asleader of Einsatzkommando V within the Einstazgruppe C, murdered a considerable number of human beings, in the period from 22 June 1941 to 24 January 1942.
In this I must start from the assumption that "murder" is to be understood as the concept--at all times common to all civilized peoples and always remaining the same--of killing a human being for joy in killing, avarice, or for other low motives, treacherously, cruelly, or perhaps by methods which constitute a public danger.
following objective and subjective evidence by presenting affidavits of witnesses, by verbal examination of witnesses by verbal examination of witnesses, by documents and by hearing the Defendant as witness in his own case: 1) Concerning his so-called "Russland-Einsatz": The defendant Schulz was from 23 June to 24 August and from 15 September to 22 September 1941 in the so-called "Einsatz Russland" as leader of Einsatzkommando 5 within Einsatzgruppe C. In the time from 24 August till 15 September 1941 the Defendant was in Berlin or on trips to and from Russia. of his Detachment to his successor, the then SS Obersturmbannfuehrer (Lt.Colonel) MEYER, who had been appointed by the Chief of the Security Police and of the SD. made responsible for his acts, whatever their nature, only for the period, during which he held the actual command and responsibility for Einsatzkommando 5. did not order such a murder nor did he in any form participate in it; on the contrary he opposed such murders and any sort of brutality, any atrocity, any maltreatment of a human being, to whatever political or religious creed or to whatever race he might belong, he always proved his own humane attitude and endeavored to educate others in the same humane attitude and always exercised only the best influence. As far as shootings were carried out by members of his detachment, they were in no case executed on his order. Apart from the fact, that he had learned of unqualified killing orders only after having spent some time in "Einsatz Fussland" - he was likewise not present at the alleged preliminary conferences, at which such orders for killings or extermination are said to have been issued - and that he would have been obliged to have such orders carried out by his detachment, it was he, who on his own responsibility imposed a limitation on such an unlimited order.
He withheld such an order and passed it on only insofar as he made it an express condition for any possible execution, that clear evidence of a guilt constituting a recognized common crime must be established. Such crimes were in fact committed, as may also be seen from the documents presented by the Prosecution. But in addition there had to be absolute military necessity, because after all there was a war. The Defendant SCHULZ commanded no liquidation unit, nor did he usurp the right to decide on the fate of human beings and to spread only death as an intended consequence of his power and contempt. By his orders he prevented the execution of such a command. He did not call helpless civilians partisans or helpers of Partisans and he did not cause them to be executed, he did not organise murder, he did not select human beings in order to exterminate them, he did not destroy life behind the front. Nor did he ever take Part in killing sick and insane persons in hospitals and lunatic asylums or in having them killed. As far as he was ordered to kill also women and children, he never carried out such an order and never communicated it to the men under his command. His men would have refused to comply with such an order. But whenever the Defendant had to pass on an execution order, it was only done, if real, grave, capital crimes justified such a measure.
My colleagues Dr. GAWLIK and Dr. ASCHENAUER have already explained, and will deal with it later, what it means in law and international law for a soldier bound by orders, especially in war, to carry out an order and what consequences a possible so-called war emergency may have. If such measures affected Jews, Soviet functionaries and other personsgypsies were never killed by Einsatzkommando 5, as long as the Defendant SCHULZ was the responsible leader- this was not done in compliance with an alleged murderous extermination order, or in order to destroy foreign nations and ethnic groups because of their race or religion or for political reasons, but only because these were perpetrators or accomplices in established crimes, in other words, because they were spies or saboteurs.
Under Defendant SCHULZ' command no victims were simply liquidated, no prisoners of war were killed, neither living or dead persons were deprived of their possessions, no foreign property was wantonly destroyed, in no place big drives were started to herd parts of the population together because they were destined to be killed, nowhere did he carry out man humts or give orders for or execute a socalled "resettlement". There was no gasvan for killing purposes in his unit. In particular I shall prove in this connection, that the times, places and numbers of executions alleged by the Prosecution in order to establish the Defendant SCHULZ' individual responsibility, are not correct. I shall prove, that the Defendant SCHULZ opposed with the means at his disposal any orders for harsh measures, which were in his opinion illegal, immoral and ruthless, and that this brought down on him the displeasure of his superior authorities. Hitherto he had known only of one purpose for his assignment: the security of the fighting troops as it was rendered necessary by war conditions. His own activity and the activity of his men was confined to this. I shall prove to Your Honors that he felt duty-bound to frustrate more farreaching intentions of his superior authorities and to refrain from the activities alleged by the Prosecution, whenever such were demanded from him. It was due to this fact that the Defendant SCHULZ succeeded in being relieved of his command after only a short and interrupted term of activity in the Einsatzgruppe, because he had been subjected to demands for which he could not assume responsibility. 2) Concerning his other activities:
It will be proved. that the Defendant SCHULZ did not commit any crimes against humanity or any war crimes in the "Einsatz Russland". It will moreover be proved that also before and after that time he never rendered himself guilty of such a crime against humanity.
In this way I shall also convincingly refute Count III of the Indictment concerning membership in organisations declared criminal. It should certainly be assumed, that a member of an organisation, who has worked only in the sense of this charge, is a criminal. But for this purpose it must be proved that he has objectively and subjectively participated in war crimes and crimes against humanity, at least by being an accessory to them. I am in the fortunate position to prove the following concerning the professional career of the Defendant and his activity in the police by menas of Affidavits of witnesses, by verbal examination of witnesses as well as by the hearing of the Defendant as witness in his own case: a) Having been a member of the police since 1923 the Defendant was transferred to the SS in 1935 in the course of the general assimilation of grades. Promotions in the SS were automatic consequences of his promotions in the police force and were in no way consequences of special merits in this organisation. b) In this work the Defendant was only guided by motives of humanity, helpfulness and tolerance. He took stops against any form of excess and maltreatment, against all unjustified arrests, especially for political, religious and racial reasons, regardless of personal consequences for himself. In numberless cases it was he who gave a helping hand to people in protective custody and their families, to procure work and bread for them. Numberless orders for protective custody were not carried out owing to his intervention. He gave bail for such persons and did many more similar things. He always endeavored to have due respect for other people's convictions. c) The Defendant was no favorite of the Party, he never engaged in Party politics and had earned no special merits in the NSDAP.
d) The Defendant SCHULZ had the reputation of being the ideal comrade and chief, who treated every subordinate equally well, who personally helped his fellow-men in their needs and troubles, no matter whether they were friends or enemies and whatever their political allegiance. He was without racial or national hatred, he was no representative of a ruling classwho wanted to force an opinion on unwilling people. He exclusively served absolute justice and therefore the law. To show this attitude I could already today out forward within the frame of my statemtne quotations from Affidavits forwarded to me, partly even without having asked for them. However, I shall reserve them for my detailed demonstration of the transparent and unchangeable personality of the Defendant SCHULZ. In conclusion I may mention that the Defendant SCHULZ in his clean attitude, when holding his last high position in the police at Salzburg Austria, did not misuse it as a member of an organisation declared criminal. It was definitely due to his energetic intervention that he dissuaded the Party, State and Wehrmacht from any senseless resistance. He contributed to preventing a horrible end of the final tragedy. He prevented chaos, senseless sacrifices and useless bloodshed on both sides and saw to it, that the city and an extensive district capitulated in an orderly manner. It was he who showed on this occasion, as already at all times before, his special concern for the welfare of a large number of prisoners of war and foreign workers. This was also recognized by the competent American officers. It was also his constant attitude, which finally obliged the Defendant to remain at his post to the bitter end, in order to act only in the interest of humanity. On the day of the capitulation he at once and without being requested put his person and his knowledge of things at the disposal of the American headquarters.
The Defendant shares the Prosecution's standpoint, that the human conscience is the basis of all law. Therefore he may demand a judgment in accordance with this conscience.
DR. DURCHHOLZ: Mr. President, Your Honors, I would like to utter a request here at this point regarding the fact that the defendant Schulz will be called to the witness stand at a very early date, and especially regarding the fact that the two defendants, Jost and Rasch, will probably be taken on the witness stand at a later date, and as I need time for the preparation of my defense, I would like to ask that the defendant Schulz be excused tomorrow for the whole day, especially as only opening statements are to be heard tomorrow and I have no questions to put to the witness Wartenberg.
THE PRESIDENT: In accordance with the request of defense counsel, the defendant Schulz will be excused tomorrow from attendance at the station. informed by the Translation Section that there are still three opening statements not delivered - the opening statements for Sandberger, Nosske and Seibert. I hope defense counsel will get their statements in immediately.
DR. GAWLIK: (For the defendant SEIBERT): Your Honor, an opening statement has been submitted for the defendant Seibert this morning.
THE PRESIDENT: Do you know about the other two?
DR. MANDRY: (For the defendant Sandberger): My opening statement has been submitted this morning by me, Your Honor.
THE PRESIDENT: Very well, is (defense counsel for Nosske here? Well, if any one sees him please Inform him what the Tribunal has just stated and we will take the next opening statement now for the Defendant Six:
DR. ULMER: For the defendant Six: Your Honors of the High Tribunal: The defendant, Dr. Franz-Alfred SIX has been accused on all three counts of the indictment, that is to say, in his capacity as leader of Vorkommando Moscow, he has been charged with criies against humanity and war crimes as well as being guilty by virtue of his membership after 1 Sept.
1939 in the organizations of the SS and SD, which have been declared criminal by the International Military Tribunal and in accordance with paragraph 1 (d) of article II of Control Council Law No. 10.
The defense completely disputes this accusation. The documentary evidence submitted by the Prosecution is not sufficient proof of his guilt for the crimes with which he has been charged. crimes committed by the Vorkommando Moscow:
"1, 7 (T) During the period from 22 June 1941 until murdered 2.457 people in their operational (U) During, the period of 22 June 1941 until (V) On September or October 1941, the Staff (W) During the period of 6 March 1942 until 30 I shall prove that the defendant, Dr. SIX, did not commit such crimes either as a principal, participant, instigator or by aiding, abetting or agreeing to such acts.
He had no connection with atrocities and punisable offenses, including, but not limited to, persecution on political, racila, or religious grounds and other inhumane acts against civilians, including German citizens or the citizens of foreign countries, offences committed in violation of the rules for and customs of war relating to prisoners of war and civilians living in countries and territory under war-time occupation or otherwise under German control and by wilfull distraction and not justified by military necessity. He was also not a member of any organization or group connected with any of the crimes mentioned above.
a) SIX as Chief of Vorkommando Moscow had
b) during the period of Six's direction, the for the safeguarding of archives.
It was
c) Only from 25 June 1941 until 20 August 1941 was My presentation of evidence will show that
a) the reports submitted by the Prosecution as
b) these reports do not correspond to the facts Against count III, membership, after the 1 September 1939, in criminal organizations, I will submit evidence that
a) SIX was merely a man of science and came to the
b) SIX, it is true, became a member of the SS through