Defendant Blobel the day after tomorrow, that is Wednesday, for the whole day, as it must be reckoned that he will be examined as a witness very soon, and I would like to prepare his examination.
THE PRESIDENT: The request of Dr. Heim is granted, and the Defendant Blobel will be excused from attendance in court, next Wednesday all day.
DR. HEIM: Thank you.
THE PRESIDENT: About how long is your opening statement?
DR. LUMMERT (For Defendant Blume): About fifteen minutes.
THE PRESIDENT: Suppose we take the recess now. The Tribunal will be in recess for fifteen minutes.
DR. LUMMERT: Lummert for Blume. Your Honor, I was prepared to examine the witness Wartenberg this afternoon. Would it be possible that the witness Wartenberg, in case he is in the building, could be called during the interval so that I could examine him after my opening statement? It would be an advantage if I could be excused tomorrow, I and the defendant Blume.
THE PRESIDENT: I shall inquire if Mr. Wartenberg is available. Mr. Glancy, can you answer that question?
MR. GLANCY: To the best of my knowledge and belief, sir, he is in the building. During the intermission I will make sure and inform the Tribunal upon our return.
DR. LUMMERT: would it be possible to ask the Witness Wartenberg to give us his documentary evidence about the interrogation of the defendant Blume, or to bring it along with him?
THE PRESIDENT: Will you so inform Mr. Wartenberg, Mr. Glancy?
MR. GLANCY: I didn't quite get that, sir. I am sorry.
THE PRESIDENT: Yes. Whatever Mr. Wartenberg may have with regard to the interrogation of the Defendant Blume he should bring along with him into court when he comes in.
MR. GLANCY: If the time allowed permits he will.
THE PRESIDENT: Very well.
MR. GLANCY: Sir, might I ask at this time, are there any other defense counsel who are ready this afternoon to continue with the interrogation of the Interrogator Wartenberg?
THE PRESIDENT: Yes, that is a very good suggestion which Mr. Glancy makes. If there is anyone else who is ready to question Mr. Wartenberg and will indicate the name of his client, then Mr. Wartenberg will be instructed to bring along those papers also.
DR. FICHT: Biberstein.
THE PRESIDENT: Will you make a note of that, Biberstein. Anyone else?
(No response,)
THE PRESIDENT: Well, those two, We will recess.
THE MARSHAL: The Tribunal will be in recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
MR. GLANCY: If the Tribunal please, the Prosecution hasnnow located Mr. Wartenberg, and he should be here within five minutes,
THE PRESIDENT: As far as you can, take advantage of those minutes; you may begin. I am sorry. I merely said we will begin with the opening statement.
DR. LUMMERT: (Attorney for the Defendant Blume) special desire for a speeding up of the procedure became evident. Particularly in the present proceedings the otherwise customary interval between the submissions by the Prosecution and the opening speech of the Defense wasnot allowed. I, therefore, request for indulgence that I shall only be able to do full justice to my duties as Defense Counsel in my final plea, when I shall argue the legal principles of the case. punishment for acts normally constituting murder and mass-murder can be administered to the individual perpetrator, if the murder was committed by order of the State? had to lose their lives, on the part of all belligerents. Killing in the course of military action does not count as murder. There is general agreement that the leaders of states and supreme military commanders have to observe the recognized rulesof war which are recognized among all civilized states. In case of violations, they may be held to account. But what is the position in respect to Criminal Law of the individual soldier and officer, if the supreme leadership of the State and of the Army violates the law of war and of nations by their commands? This is the crux of the present case. future World State. It is the hope of suffering mankind. Up to this time, the so-called states, those strange, highest forms of organizedsociety were and still are at the same time the supreme legislators.
They did and still do claim so-called sovereignty for themselves. With the courage of the legislator the verdict of the IMT anticipated the basic law of the future World State in that one sentence, which in my opinion is the most important one, but unfortunately also that sentence of the great Nuernberg verdict, which it is hardest to put into practice:
(Official text, vol I, p. 223) "On the other hand the very essence of the Charter is that individuals have international duties which transcent the national obligations of obedience imposed by the individual State." individuals, which find themselves in a position where their national duties of obedience clash with their international duties. It is the vocation of the United Nations to prepare that World State and step by step make it a reality. The difficulties of the negotiations of the United Nations in a nut shell are described by the question, whether the funda mental principlesof West or East are to be dominant.
After this general survey, let us now return to our trial. The acts for which the defendants are now held responsible here belong into the history of the era of transition from single states to the World State. I intend to take up in my closing plea on behalf of my Defendant Blume in detail the problem of whether or not a person can be expected to act in a certain way as a basis for excluding guilt. This reason for excluding guilt does not concur with either the so-called necessity (Notstand) arising from having received an order, nor with the general state of necessity as defined by criminal statute. It is rather the basic legal principle, acknowledged legal theory by science and practice in many countries, which is fundamental to all special statutory provisions concerning the state of necessity, but which is not entirely covered by them. The International Military Tribunal mentioned this basic principle in its discussion of Article 8 of the Charter; it is expressed in the following way (Official text, Vol I, p. 224): I quote:
"The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible." organizations charged with being criminal. There it excluded from "criminal groups" those "who were drafted into membership by the State in such a way as to give them no choice in the matter" (Official text, Vol. I, p. 256 and 273). give a complete and true picture of his participation -- which was on the whole very slight -- in those acts carried out in the East by order of the political and military dictator Hitler. I shall show exactly and in detail how the Defendant Blume almost never carried out this order, which he himself felt to be altogether impossible, how in two cases he could not altogether evade the order when exposed to the strongest immediate mental pressure on the part of his superior Nebe, which left him no other choice, and how he was relieved and sent back to Berlin already after about seven weeks in the middle of August 1941, because Nebe was highly dissatisfied with him and found him too "soft" and too "burocratic". carrying out of the order, he bad only the choice to forfeit his own life at once for non-compliance with orders or to carry out the order. But this was no choice in conformity with the moral law. I legal duty to suffer martyrdom is universally rejected. In conformity with this, the Presiding Judge of this Tribunal, Judge Musmanne, said in his concurrent opinion on the conviction of the former Fieldmarshal Milch (text of Judgment, English, p. 84, German p. 96):
"We never intended, nor was it suggested, that he should take any action, which would result in the forfeiture of his life."
stand on his general educational background and on his professional career and his activity asofficial of the Security Police in the years before and after the middle of 1941. witnesses and by the presentation of a number of documents. This evidence will concern both the activity and conduct of the Defendant Blume and the general picture of his character and personality. Finally, I shall submit some documents concerning legal rules and legal questions in order to facilitate the task of the Tribunal. Defendant Blume will show that it will be possible to consider him worthy of a mild judgment. Tribunal, in agreement with my colleagues, to be permitted to make a short separate statement on the question of criminal membership (Count III of the Indictment), because I have dealt with the offense of membership in a "criminal group" already during the IMT trial and recently again in legal opinions.
THE PRESIDENT: Mr. Wartenberg has now arrived, and he will please take the stand.
ROLE WARTENBERG, a witness, took the stand and testified as follows: BY THE PRESIDENT:
Mr. Wartenberg, will you please repeat after me the following oath: I swear that the evidence that I shall give shall be the truth, the whole truth and nothing but the truth, so help me God.
(The witness repeated the oath)
THE PRESIDENT: Mr. Walton, do you want to address a few questions to the witness as some sort of a preliminary for the cross examination?
MR. WALTON: Your Honor, only insofar as qualification is concerned.
THE PRESIDENT: Very well. BY MR. WALTON:
Q What is your name? War Crimes? of this Office.
MR. WALTON: We submit, Your Honors, that he is qualified to be cross examined by the Defense on the subject of interrogation.
THE PRESIDENT: Very well. BY DR. LUMMERT (Attorney for the Defendant Blume): Q Witness, I have a few general questions to address to you in connection with the affidavit NO-4145, Exhibit No. 10. It is in Document Book I; in the German on page 43, in the English - I don't know the page number, but it could easily he found.
May I ask you, witness, do you have the original or a copy of this affidavit in front of you"?
A Is that affidavit dated 29-6-47?
Q Yes, it is. May I ask, witness, when was Defendant Blume interrogated which is the basis of this affidavit? On the sane day, the 29th of June; or, previously? to 1500 hours. affidavit, the signature to the original affidavit; or was it the first interrogation? the Defendant Blume during the interrogation; was there anything particular obvious about him?
A I don't recall anything particular about that. he may rise. Blume, a short time only before that interrogation, was arrested and the persons who arrested him ill-treated him very badly; and, that afterwards he tried twice to commit suicide which only did not succeed because the putties which he used for this purpose tore twice; and that the strangulation marks which resulted from, his attempted suicide could be seen quite clearly on the right and left side of his neck. That he apart from that showed signs of the ill-treatment on his face?
MR. WALTON: If Your Honors please, I think the witness would give clearer answers if Counsel for the Defendant Blume would ask him one question at the time. The natters which he is going into at the present time are not material to the issue of taking of affidavits and the conducting of interrogations; and I think that the time is certainly being wasted With this type of questioning.
I ask the Tribunal to have the Counsel for the Defense ask him direct questions so that he can give direct answers.
THE PRESIDENT: I think you can be a little more specific in your BY DR. LUMMERT: Blame during the interrogation had signs of attempt of suicide on his neck? particularly his lips which were bleeding?
A I do not recall these marks. It is possible, but I do not recall it. Defendant Blume was exhausted and depressed? that particular date?
A I think so. I do not have any reason to believe why a certain dry should be of a disadvantage for interrogation.
Q May I ask you about the course of the interrogation. First of all, a stenographic report was taken while you were asking and he was making his replies? the shorthand record, write the affidavit NO-4145?
A I have, after the interrogation; I prepared the affidavit. I do not recall if I used the stenographic record or if I dictated the material out of my memory. Anyhow, it was, as far as I recall, not done in the presence of Blume.
The affidavit was shown. later on to him and in one of the copies I have in front of me he had made his corrections. submitted to him the affidavit prepared by you, that he might sign it, objected that his informations which he had given to you about his attempts to evade the carrying out of that order as far as possible, had not been recorded by you? the background or acts of a defendant have been omitted in the shorthand record. had omitted something, to make an additional record? because you had no time; and that you told him that he himself should write down the supplementary evidence?
A I do not recall such an incident. In case that I would have asked an interrogatee to write certain things down I would have them available in my files. The only records which I have, besides the affidavit and the first interrogation is the record at the time when Blume signed the affidavit. receive a letter by the Defendant Blume in which he wrote down the supplementary statements and asked you that this supplementary statements would also be recorded and submitted to him to be signed? Did you receive that letter?
A I did. not. I have no other record in the file of Walter Blume than the first interrogation, the copy of his affidavit dated. 29 June 1947, and. a record taken at the time from the proceedings while signing the affidavit.
which I have in front of me. It is dated 29 June 1947. That is the same day when the affidavit, NO-4145, was signed. I now ask you, witness, is it possible that the original letter, on the way from the prison to the Prosecution, might have got lost?
A I cannot answer that question. I do not have the mentioned letter. is not contained in the documents of the Prosecution?
A I am sorry; I have no other material, with the exception of an affidavit from Dr. Walter Blume, made on the 23 - made on the 25th of June in Iselheide, of which I have a copy; but, I have not a letter of the Defendant Blume.
DR. LUMMERT: These interrogations in Iselheide occurred before that date, didn't they? I have no further questions now. I only ask the witness to look in the documents of the Prosecution on Case 9 to have another look no at the documents you have here, but perhaps at other documents, to see whether or not the letter may have been received after all. I reserve the right to make an application to the Tribunal to ask the Prosecution to submit that letter.
THE PRESIDENT: When you return to your office, Mr. Wartenberg, you may look for any such document and then when you come into Court tomorrow, you may report on the result of your search.
THE WITNESS: Right, sir.
MR. WALTON: One question, please.
THE PRESIDENT; Yes, Mr. Walton. BY MR. WALTON:
Q Mr. Wartenberg, have you from time to time received letters or notes from witnesses and defendants in the jail in Nurnberg? and I am keeping those letters always in the file which has the name of the writer, together with other papers. a letter that you never received?
DR. BELZER (Attorney for the defendant Mathia Graf): With the permission of the High Tribunal, I would like to address a question to the witness, referring to an affidavit of the defendant Graf, submitted by the Prosecution in Document Book III-C. It is Document NC-4855, Exhibit No. 146. It is in Document Book III-C, German page 123. I am afraid I don't know the English page. It is the document before the last in the Document Book III-C. After this document there is only one more document.
THE PRESIDENT: Page 74.
DR. BELZER: Document 4855. BY DR. BELZER: defendant Mathias Graf at the and of July, 1947, in my presence? and submitted to the defendant Mathias Graf? which reads, "In the year 1933 I joined the Party. My membership number is about 3,700,000. In 1933 I joined the Allgemeine SS. My membership number is 77,431." I would now like to ask you whether you can remember that the defendant Mathias Graf in that connection asked you to and to enter into the affidavit that in the year 1936 he had left the SS? to the defendant that he was not necessary to make any additon here, because there was the possibility that while the defense of the defendant was being brought up, this fact would be mentioned then?
DR. BELZER: I have no further questions then. BY DR. FICHT (Attorney for the defendant Biberstein):
DR. FICHT: Your Honors, this concerns the affidavit of the defendant Biberstein, which is contained in Document Book I on the English page 111.
made? front of me, could you give me the date of the affidavit you mentioned? you only make statements based on the documents in front of you? from 1000 hours until 1115. I have the stenographic record of this affidavit in front of me. ments in front of you concerning that affidavit? Iselheide in front of me.
Q Did you take that in Iselheide yourself?
Q How was this affidavit of 2d of July made? If I may say in short, in order to make the answer more easy, was the affidavit of 2 July 1947 based on the questions mentioned by you on 29 June or was it based on the questions of the interrogation of 25 June? had also at that time knowledge of the affidavit of 25 June, and it is possible that I have used certain statements out of that affidavit, to which the defendant Biberstein had sworn to. Iselheide of 25 of June, which you mentioned last, was much more detailed and also cites certain reasons which might be in form of the defendant? affidavits again and check line against line. The information, as far as I recall, which is contained in the affidavit of 2 July is contained in the interrogation of 29 June, 1947.
Q May I for that reason ask a more precise question? Did the defendant, when signing this affidavit of 2 July 1947, did he not ask you that further circumstances contained in the Iselheide affidavit be recorded here also? Do you remember something like that?
A It is possible, but I do not recall that fact. I cannot deny it, but I don't recall it. contained in the Iselheide affidavit, then there would be an opportunity later on to record those?
A No. Basically, I never made these statements in an interrogation, unless I intend to take another affidavit from a defendant. That happens only if during that last interrogation, additional material has been given by the defendant. You don't particularly remember how you acted in this case?
Q Now I have a few other questions. Did you ask the defendant before he signed this affidavit of 2 July 1947 and inform him that he could refuse to give evidence which would incriminate him?
A.- At that time the Defendant Biberstein had not been handed an indictment - and as such I did not consider him a defendant. I did not inform him that he can refuse to answer.
Q.- Is it correct that you swore in the Defendant Biberstein at the very beginning, as stated in the affidavit?
A.- That is correct.
Q.- On your previous statement that you did not inform the defendant that he did not have to give evidence, I presume you did not inform him either that he could refuse to swear an oath?
A.- I did not inform him to that effect.
Q.- You did not inform him, either, in what capacity he is making those statements - as a defendant or as a witness -- or, -- I withdraw my question. It is not correct. Did you explain to the defendant that he had to make his statement as a witness, or did you point out to him that he could expect an indictment?
A.- I did not inform the Defendant Biberstein that he was a defendant; I did not know it myself at that time; and any person who has not received the indictment is usually sworn in as to the correctness of the statements unless that person objects against it.
DR. FICHT: Your Honors, I have no further questions. I like only to reserve the right to address another question to the witness - if the affidavit of Iselsheide, for which I have asked the Tribunal in writing when I have looked at it, in case the witness Wartenberg is still available at that time.
DR. HORLICK-HOCHWALD: If the Tribunal please, Dr. Bergold's office has received a copy of this affidavit on the 3rd of October, so that Dr. Ficht must have in his possession a copy of the affidavit by now.
DR. FICHT: I am sorry I cannot confirm that. Perhaps there is some mistake - but Dr. Bergold could only look into the other documents; but concerning the other documents for which he has asked he did not get a copy.
He could only look at them - but the Iselsheide affidavit he did not have an opportunity to look at. That is why I wanted to reserve the right to ask.
DR. HORLICK-HOCHWALD: The Prosecution is not adviced that Dr. Bergold has had the right to look into the interrogations of the Defendant Biberstein. If that happened, it happened by mistake..... of course, we would object to the surrender of transcripts of interrogations, but the Prosecution has in its possession a slip, a note, from Dr. Bergold's office that the copy of this affidavit was received on the 3rd of October.
DR. FICHT: I cannot make any further explanations to this because I have already done so.
THE PRESIDENT: In any event, Dr. Ficht, please inform yourself when the Court recesses today whether you do, or do not, have this document. If you have it, be prepared to ask any questions that you intend to ask, tomorrow morning. If you do not have it, then contact the Prosecution's office to see if you can get another copy of it. In any event, tomorrow morning will be your last opportunity to question Mr. Wartenberg on this or any other document.
DR. FICHT: Very well.
THE PRESIDENT: Mr. Wartenberg, I understand that you did not inform the defendant that He could refuse to answer your questions. Did you in any way suggest to him by word or act that he was compelled to answer your questions and to make a sworn statement?
THE WITNESS: Your Honor, after the defendant, whom at that time I considered only as a witness, entered the room I asked his name, and I took him under oath. Then I asked him the questions; and at no single moment did he say he would refuse to answer at question. Then, after I had prepared the affidavit, I showed it to him and he made five corrections on the affidavit.
THE PRESIDENT: Would you say, then, that his attitude throughout the entire interrogation was a wiling one?
THE WITNESS: Yes, Sir.
THE PRESIDENT: Very well.
Does any other defense counsel desire to question Mr. Wartenberg, this afternoon?
DR. LINK (For the Defendant Ruehl): May it please the Court, I would like to address a few questions to the witness Wartenberg. I refer to Document NO-4149, an affidavit of the Defendant Ruehl, in Document Volume III-D, German Copy page 121, Exhibit 169.
THE PRESIDENT: Dr. Link, - this is not of any great importance but I would like to repeat to you what I said to the prosecution counsel several days ago - that when you refer to a document try to give us firts the document book number, because when you give that last, by the time we look at the book we have forgotten the exhibit number, the document number, and what it is all about.
DR. LINK : Yes, Sir.
May I start?
THE PRESIDENT: Proceed. BY DR. LINK:
Q.- Witness, may I ask you, do you have this affidavit in front of you, the affidavit of the defendant Ruehl? It is in the German and English document book, shown with the date, 26 May, 1947.
A.- No, I do not have that document in front of me.
Q.- Do you, perhaps, have an affidavit of the 26th of June, - or don't you have any documents concerning the Defendant Ruehl at all?
A.- I have at present no documents concerning the Defendant Ruehl here.
MR. WALTON: May it please the Tribunal, the message that I received from the Tribunal was to the effect that Mr. Wartenberg should bring with him the records which he has in his office concerning the Defendants Blume and Biberstein.
I repeated that message, and so he did not come prepared. Also, he felt that tomorrow morning he could have his records with him; and it would be necessary, if counsel for the Defendant Ruehl goes on, that we obtain these records on the Defendant Ruehl before he asks questions.
THE PRESIDENT: Neither did the Tribunal know that Ruehl was going to be the subject of inquiry.
DR. LINK: Certainly, Your Honor, it is my mistake. I was merely encouraged to address these questions already today because my colleague, Belzer, who - as far as I know - didn't report either, - came to the desk; - so I came to the conclusion that the witness had brought all documents with him. I will then take the liberty of asking questions tomorrow morning.
THE PRESIDENT: Yes. Mr. Wartenberg, that will be all this afternoon. We shall appreciate your being here tomorrow morning at nine thirty will all necessary documents that may be required going into.
WITNESS: Yes, Sir.
THE PRESIDENT: "We will take up the next opening statement now.
DR. LUMMERT (For the Defendant Blume): Your Honors, I ask for permission that the Defendant Blume be excused tomorrow morning from session so that I can discuss and prepare his defense with him tomorrow morning.
THE PRESIDENT: Only for tomorrow morning, or all day?
DR. LUMMERT: For all day, please.
THE PRESIDENT: Yes, the Defendant Blume will be excused from attendance in Court all day tomorrow.
DR. LEIS (For the Defendant Eugen Steimle): Your Honors, may it please the Court.
at the first glance so unambiguous and clear that the Defense seems to be deprived of every chance to make even one single defendant appear in a light different from the one in which he has been put by the Prosecution. No objection can be made to the statement of the Prosecution, that the law must not remain silent where persecution is carried out on a national scale and makes life intolerable to large groups of human beings or is even intended to exterminate them. But I believe that we must not overlook that today - two and one-half years after the end of the second World War - we are certainly in a quiet position to ascertain in retrospect, clearly and objectively, the terrible results and the facts leading to them, but that at the time when the acts were committed no such glance into the future was possible. Not even for the defendants who did their duty not as leaders, but as subordinates. For, though, it is admitted that some of the defendants were high SS-leaders, the orders which they had to obey did not emanate from their own spehre of power but from the highest authority of the state and were de facto to be regarded as laws according to the character of the Dictatorship prevailing in Germany. We must try to imagine ourselves back in the period spoken of by the reports submitted in order to examine from this standpoint the question of guilt or innocence of the individual defendants. Only an accurate knowledge of the actual facts can create the conditions for a just judgment. I completely agree with the Prosecution's opinion that we must know and convict the motive, if we want to fight the crime. of the motive does not touch the defendants, but those in whose brains the plans and commands originated, and who today can no more be made responsible because they either punished themselves or have already been convicted by a Tribunal. It is equally clear that in the last resort the defendants were only tools, and in this respect we must only put the question whether they were willing instruments or not.