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
c) SIX always clearly expressed his opinion against to be expected, and that, only due to HEYDRICH's
d) SIX, because of his opinion tried in vain to
e) SIX, after HEYDRICH's death, again took steps
f) SIX, regardless of his membership in the Abteilung (Cultural Political Division) of the show in the case of SIX, that he took part neither in crimes against humanity nor in war crimes.
membership of Dr. SIX in one of the organizations declared criminal - the characteristics of a crime in the sense of the indictment are not given, as SIX neither aided war crimes and crimes against humanity, nor wanted or planned the commitment of such crimes. defendant Dr. SIX guilty in the sense of the indictment.
DR. HEIM: (For the defendant Blobel): May it please your Honor: Before I occupy myself with the facts as presented by the Prosecution as far as it concerns the defendant Blobel, may I ask the permission to present a few ideas of a general character, for which there is reason in this trial, paradoxical as this may sound at first. I shall mainly limit myself to reproduce such ideas as originate from the pen of non-German authors and which sine ira et studio endeavor to solve the difficult task of prying into the depths and abysses of thepsyehic characteristics of the German People. This survey may be a small contribution to the effort to explain the situtation from which it results that the defendants, and amongst them also Blobel, were "the cruel henchmen whose terror will be engraved in the darkest pages of the history of humanity" according to the Prosecution's assertion. The intention of my statements is to bring out a part of the underlying total connections of our time."
(Mitscherlich and Mielke, The Dictate of the Contempt for Humanity (Das Diktat der Menschenverachtung). to dispute or to whitewash any crimes which were ordered or executed under the National Socialist regime, but at the same time I would like to point out that during the war crimes were not only perpetrated by the members of the Axis but also by those of their military opponents. delicate sphere where there are opposed on one side: llyalty and absolute obedience - in the National Socialist State and equivalent to life and freedom - and personal guilt and atonement on the other side. has not become any more humane. It is to be regretted that the second World War has shown a retrogressive development in respect to the protection of the civilian population. This we were made to feel to a not too small extnet in our own country too. The apocalyptic horsemen have for many years haunted Germany too, and they left behing their ineradicable traces. Many German towns with a culture of almost a thousand years have perished under a hall of bombs and it will not be possible to restore them and in them innocent women, children and old people have lost their lives. It is unfortunate that especially when for yars it had been systematically fostered by utilizing all possible means of propaganda, hatred has resulted in wild orgies of cruelty. "War has always promoted such outbreaks ..." (Schenk, Letter from a Swiss to a German student in "Europa vor der deutschen Frage" (Europe faces the German problem).). It is further said in this volume that it is deemed the highest ethics in Germany "completely to renounce one's own individuality and to recognize solely the State as one's conscience above which there is no higher binding authority". And Schenk states also the causes which exist for it according to his idea, by declaring:
"It results from the specifically Prussian military Germany.
.."
"The Frenchmen" as he goes on to state - and I want to add to it -- the American and the British -- will never understand that there are people who acknowledge an authority over them which may prescribe to them how to behave." This in itself regrettable and frightening character trait, to give one's individuality up completely and only to be a small wheel in the set-up of a clockwork, has become the theme of a critical essay by Robert d'Aarcourt "The mental perspectives of the Germans (Dis geistigen Perspektiven das Deutschen)" There it is being said:
"Resistance - this word means something disreputable to the Germans.
... They have superstitious veneration for opposition.
.. In thepresence of power, in the presence judgment in the Germans becomes befogged.
The ability of the word.
The only reaction to a given order is its acceptance and its execution.
.." the problem, how it was possible that decent and blameless people, according to the statements of the Prosecution, could so diligently and punctually given the National Socialist annihilation machinery, is given in the statement contained in the above-mentioned essay by D'Harcourt;
"There is no other nation that in its whole make-up is more removed from any public affairs than the Germans.
That in the second instance a citizen.
.."
for his family predestinate him exactly to function in the prescribed sense in the authoritative State. And this State utilized the endlessly docile yielding disposition of a nation to which the security of the family meant more than the duty of the citizen who is conscious of his responsibility, to form it at will and to its own purposes. brought Blobel as well as the other defendants into the dock. Under 8 C-J the indictment charges the defendant Bllbel with the murder of nearly 60,000 people. Prosecution, the latter seems to consider the case as a simple case of murder, in which on theone hand there is the perpetrator andon the other hand there is the known number of people executed. But it is not quite as simple as the Prosecution seems to think, even if the actual facts are apparently sufficiently proven by documents. to another essential factor. The submitted documentary material to which the Prosecution had access, is definitely incriminating. However, it is so much easier for the Court to fulfill its difficult and responsible task of finding the objective truth, the more fully the material will be at its disposal -- the exonerating material as well as that which implicates the defendants. The documentary material which was found amounts to the immeasurable, and that which was made available to theDefense is only an infinitesimal part of it and besides exclusively the material which indicts the defendants. The war in the East was specially characterized by atrocities andcruelties on both sides, but the material which would show the other side also in its true light and would thus give a full picture of the situation in the East is not accessible to the Defense.
But that this material was collected by German agencies to give testimony in future times, most of these defendants will be able to confirm.. reports of the Reich Main Security Office submitted by the Prosecution are incomplete and unreliable and that they can only be fragmentary documents of questionable value in view of the insufficiency of the organization used and of their manifest tendency towards exaggeration. I shall prove in detail that the alleged figures do not correspond to the facts, as is shown by comparing the individual reports. Especially I shall prove that Blobel cannot be rendered responsible for the reported, "large-scale actions" and "reprisals", because these were partly measures ordered by other agencies - Higher SS and Police Chief,, Chief of the Einsatzgruppen, Town Commander - and carried out by other units, and partly such executions, as were ordered by the Commanding General of the Army District Command 6, Fieldmarshal von Reichenau, as collective measures sanctioned by International law - reprisals - on the occasion of crimes, attacks in disregard of the customs of war, acts of sabotage against the fighting or occupying troops, and were carried out by police units and Ukrainian Militia. for carrying out of a considerable number of executions, since he was in the hospital for a considerable time and also for other reasons was not fit for duty during the time in question fallen ill of Volhynian fever and because of a head injury; for these reasons a deputy took over his command.
sub-detachments, which dealt independently with the security tasks assigned to them in the areas of the front-line divisions, resulted in Blobel having no influence on the reported events and was informed of them only subsequently or perhaps not at all, because the subdetachments reported immediately to the Einsatzgruppe through Army District Command 6. a detachment of altogether 52 men, from which number we have to deduct office personnel, mess personnel, interrogation staff and drivers, can attain the number of executions alleged by the Prosecution. This is simply impossible. Evidence will show, that the Chief of an Einsatzkommando or Sonderkommando had no power of command over units of the Ordnungspolizei, the Waffen-SS, the Wehrmacht and the Unkrainian Militia. Furthermore I shall prove, that, as far as parts of Sonderkommando 4a took part in executions, they were used by Blobel in consequence of orders received by him as chief of the Sonderkommando from the Einsatzgruppe or from Army District Command 6. Blobel had no occasion to consider the carrying out of the executions criminal and to examine whether these orders were in conformity with International law, because the Russian enemy hardly knew the concept of International law, had not signed International Conventions concerning warfare and did not in the least intend to comply with the customs of war. In this conception Bllbel was of necessity seconded by what he had experienced and seen, especially of atrocities committed on German soldiers. I shall prove what may perhaps appear incredible, namely, that the executions of women and children as carried out by Sonderkommando 4a, were by no means contrary to International law, since the Russians in their carefully organized and all-embracing partisan warfare, which was contrary to International law, ruthlessly employed also women and children for these purposes.
Apart from all that it has already been mentioned that in Germany, too, the war did not spare women and children, and in this repeat the prevailing rules of warfare have destroyed the doctrine of reprisals. I may point out in this connection that the Anglo-American conception of warfare -- in contrast to the one prevailing on the European Continent - sticks to the traditional concept of war, which regards every person resident in enemy territory as an enemy alien.
Through the principles involved in the subject, "order" have already been discussed by somebody else, I want to refer in this connection to Himmler's speech at Posen in October 1943 in order to underline what has already been said in the beginning. His statements as to loyalty and obedience left no doubt as to what an SS-leader had to expect in the event of noncompliance with orders. Himmler stated among other things:
"I want to lay down one directive. Should you ever we shall see to it that he 1 ses his life.
.. I want to make a clear and unambiguous statement.
It goes But orders must be sacred.
If generals obey, the Armies obey automatically.
.. The only commissar we have obedience.
.." Marwitz could refuse obedience in spite of his oath of allegiance, because thecarrying out of an order of the king would have meant for him a conflict with marality and conscience.
Marwitz' tomb bears the characteristic inscription; "He saw Frederick's heroic epoch and fought with him in all his wars. He chose disgrace, where obedience brought no honor." In Adolf Hitler's Germany men who refused obedience were either put in a concentration camp or shot dead, regardless of person and rank, as is proved above all by the measures against the participants in the events of the 20 July 1944.
the moral law; this applies also to the Defendant Blobel. For either he had to carry out the order or if he refused to do so, he lost his liberty, or he was even shot dead by a summary Court martial. In addition the National Socialist regime during the war introduced the truly devilish device of family liability, in order to eliminate the last remnant of a will to disturb the machinery of its system. The fear to endanger even the closest relatives made the internally reluctant man abandon every better motion of his conscience. But the legal conclusion to be drawn from this situation must be that the defendant was in a genuine emergency, at least in a presumptive emergency. But this is a justifying reason according to the general principles of penal law. Even if the Defendant Blobel, like so many other Germans, who have remained decent at heart, should be reproached with cowardice and egoistic self-preservation, the short statement may be sufficient, that this may not establish any punishable form of participation. made to the provision of the German Military Code, that the participant in the execution of an illegal order renders himself liable to punishment; to this we may object that the authoritarian State would have declared that every kind of resistance against the crime is in itself a crime. In addition terrorist and tendentious sentences did the rest to spread the conviction, that any sort of resistance was condemned to failure and therefore meant only a useless and consequently senseless sacrifice. in 1943 to open the mass graves in the East and to destroy the corpses completely, no argument for the Defendant is needed in this respect. It cannot be understood why the burning or the destruction of corpses is supposed to be a criminal act, no matter why and by whom the exe cutions were carried out.