to the Tribunal, to proclaim the right of humanity to be allowed to live in peace and dignity without any consideration of creed or race, represents a redeeming aspect. The theory on which I shall base my defense does actually proceed from the idea that the concept of genecide was not born in the head of those defendants. Those who were mainly responsible have evaded this responsibility, as they lost their brave-heartedness, which they only too often requested from, their subordinates. Another circle of persons is already sentenced. Those were the "instigators" and the "main perpetrators" of the systematic genecide, if I do understand the nucleus of the indictment correctly. the Einsatzgruppen members of all ranks can only be judged under the viewpoint of subordinate forms of participation. Law according to International Law. The Prosecution, however, does not only rely on International Law but also on general principles of the Penal Codes of civilized countries and on the Penal Codes of the countries in which the crimes were perpetrated. On top of that it refers to Article II of Control Councillor Law No. 10. This multiciplicity of juridical arguments carries the seal of contradiction in itself. Considering the purpose of the Opening Statement I have to limit myself to indicating those legal problems only insofar as they might have any influence on the presentation of evidence. The nucleus of the, problem mentioned is to be found in the treatment of the objection concerning the acting on orders. This Tribunal is appointed to judge according to Internation Law and is only bound by International Law. According to International Law the acting on orders constitutes a fact, which in respect to war crimes is to be treated as a complete justification, even if in the national law of the individual States another principle is valid. Article 47 of the German Military Penal Code cannot be valid as applying against the defendants, this recording to German Law at that time the FUEHRER orders had legal powers and no authority was existing with which to lodge an objection against these orders.
March 1942 and, with the exception of some important interruptions, he remained in charge until January 1943. did not execute any so-called "action against the Jews" during the whole time he was in command. individual executions undertaken by Sonderkommando 7 b during the time in question always took place only in connection with operations against artisans and are thus justifiable from a point of view of Internation Law. neither be called a terror against a defenseless population nor as a camouflaged genocide, and that it does not concern a persecution from political, racial or religious re sons, but that it concerns merely protective and defensive measures for the security of the occupational armed forces and combat troops. way OTT behaved towards the civilian population in the occupied territories of other countries, and that as an instance of evidence for the foundation of his own credibility in the presentation of the conditions in Russia. This presentation of evidence as, at the same time, meant to prevent that incriminating conclusions be drawn from his membership in organizations which have been declared criminal. to present the limitations of the individual responsibility of the individual defendants and especially to ascertain all details which in each individual case were the cause of the executions with which the defendants are being charged.
the Einsatzgruppe seen as a whole, the more so the principle has to be applied that the penal guilt is a personal one, a principle which according to the statements of the International Military Tribunal, belongs to the most important legal principles. "Guilt", however, cannot only be applied to the criminal intent of the action of the person acting. Thus all those reasons for the evidence become essential which have a bearing on the complex of perceptions of the defendant concerning his position in the dictatorial Fuehrer State.
DR. KOESSL: May I be permitted also to make the Opening Statement for the defendant Schubert?
THE PRESIDENT: Yes, go ahead.
DR. KOESSL: May it please the Tribunal. sibility upon the principles pronounced by the Supreme Court of the United States in the YAMASHITA Case and by Military Tribunal I in the trial against the German doctors, concerning the responsibility of military Commanders. authority which granted the defendant his rank amd position, and which included the duty of exercising control over its subordinates. the rank of a 1st lieutenant (Oberleutnant). SCHUBERT was not given any authority wither by his position or by his rank, and, furthermore, that defendant SCHUBERT belonged to no unit nor did he have any authority of command. the rights and duties of adjutants of associations organized in a military way, never included the leadership and supervision of the units subordinate to their commanders. A person who cannot issue orders is by the same token not in a position to stop them, and cannot stop them, even disregarding any sort of coercion or state of emergency. Prosecution had the role of defendant SCHUBERT at the only execution which he ever saw, presented in the light of a supervisory and commanding activity. will demonstrate SCHUBERT's actual functions in order to show the Tribunal the scope and the content of his work.
defendant will assume more significance than in the case of any other defendant. I shall, therefore, take advantage of the opportunity to show that SCHUBERT was assigned to the functions of an adjutant because of the very nature of his career, and that this function actually correspond to the career of an administrative official. sufficiently during the opening speech for defendant OTT. The theory of defense presented there also provides the method for my argument in the SCHUBERT case, in order to create the conditions for examining individual responsiblity by a just standard.
THE PRESIDENT: Any one else ready?
DR. LEID: (For the defendant Klingelhoefer): I don't know whether the Tribunal has the translation of my opening speech.
THE PRESIDENT: We do not have it. I am sorry, Dr. Leid. We have the Opening Statement for the defendant Mathias Graf. Is his attorney here? No? Ruehl. Those are the ones we have ready. Well, of course, most of those have been delivered, but -
DR. HELMS: I am in a position to give the Opening Statement for the defendant Ruehl.
THE PRESIDENT: Very well, proceed.
DR. HELMS: May it please the Tribunal: of Germany volunteered to serve the American authorities. This happened in the consciousness that he would have to account for his political past. But this also happened in the firm conviction that the investigations which he had would be held, could not connect him with any kind of dishonorable or punishable acts. Therefore, he did not hide in the internment camps.
When the defense of the organizations before the IMT called him to be a witness against the Prosecution this was done by him without hesitation. After the collapse he thus got into a circle to which he had never belonged, and he heard of things which he had just heard from rumors, and thus he heard about happenings which he had never known before. with deliberate slaughter of more than one million defenseless men, women and children. What is it that brings this man, who has been brought up in simple surroundings, who has been a conscientious student soldier and official but not a fanatical National Socialist--what is it that charges him with murder? Where is the proof of his guilt?
The Prosecution has not answered this question. It wants to bring men into court, men who have committed murders, crimes and other inhuman acts. Everyone of the defendants held a leading position or a command post in an extermination unit. Each had the power to order executions by virtue of his position. See page 35 of the Opening Statement.) All had ranks and positions which included the power and the duty to control their subordinates. (Page 36 of the Opening Statement.) Not one of these criteria applies to the defendant Felix Ruehl. of evidence. A glance at the Indictment and at the Prosecution's documents will be sufficient. The only documents in which the Tribunal will find the name of Felix Ruehl are his own personal papers and his own affidavit. He is not mentioned in any report, neither as a superior nor as a subordinate, and no where is any reference made to him. Many of my colleagues had to present arguments of a legal and political nature which shall serve to solve the problems which cannot be ignored in these proceedings. I will be able to second them without having to lay claim to them. Many of my colleagues, if not all of them, will have to show factual proof refutes the contrary statements of the Prosecution and which reduces them to a sound basis on which alone a just verdict will be possible.
I will be in a position in the first instance to refer to the Prosecution's own documents and will only have to contribute to a very limited extent to their explanation and their correction, finally, many of the defendants may have to state personal reasons as extenuating circumstances which make their actions and their responsibilities appear in a different light. nothing to tone down or to extenuate. He has nothing more, and nothing less, to contribute to the material for the proceedings than the decent attitude of a mar who served where he was asked to servea service which was neither dishonorable nor criminal. belonged to Sonderkommando 10b within Einsatzgruppe D. This unti is mentioned once under Figure 9 C of the Indictment, where he is charged with having murdered Communists and Jews near Czernewitz. The defendant Ruehl did not at any time lead this Sonderkommando or any of its Teilkommandos. Even the Indictment does not contain such an assertion. It merely mentions the accused as one of the officers of this Sonderkommando. Evidently even the Prosecution takes it for granted that every officer and soldier does not automatically become a criminal if punishable offenses are committed in his unit. Therefore, it endeavors to establish as close connection as possible between the defendant and the command of this unit. This is the only explanation for the Prosecution's reference, in its opening speech, to my client as deputy of the late Kommandofuehrer Persterer (page 24), whereas on its map and charts it shows him correctly as an ordinary member of this unit.
Court2-A Case 9 Ruehl was neither Persterer's deputy, nor his next in seniority.
In particular, it will be shown that in the Kommando, Ruehl did not even work as an export who had the opportunity to come in touch with executive measures; that he was, however, an expert for matters of personnel and economy, that is, a so-called administrative officer a position which could not concern itself with matters which constiute the object of the indictment. among the last of the defendants. There are one or two other ordinary members of a Kommando sitting together with him in the prisoner's dock. With regard to his position as administrative officer, and in view of the period for which he had been assigned to that post, he is actually the last. the Prosecution (page 25 of the Opening Speech), whereby it may be impossible to prove that some of the defendants ordered crimes or directly participated in them, beyond that, he is convinced that his activities do not connect him with any other form of participation in war crimes and crimes against humanity, within the scope of Control Council Law No. 10. NSDAP, which is the SS; and 2) a member of Amt IV of the Reich Security Main Office, the Gestapo. This does not provide conclusive reason for requesting punishment for membership in organizations which have been declared criminal by the IMT. SS and Gestapo is not a punishable offense in itself, - that this applies to groups within these organizations, and that the IMT precluded the punishment of individually innocent members by further reservations.
knowledge of the criminal aims, is punishable. The Prosecution cannot evade its obligation in this issue. that his active membership in the SS came to an end as early as 1939, when the defendant was transferred to the police. Further promotions in the SS were merely adapted to Civil Service promotion as a sort of assimilation of rank. Counter-Intelligence department. Thus he was engaged in work which in every civilized state belongs to the noblest tasks of the police or similar institutions. this defendant, inspite of his limited scope and slender possibilities without exercising influence, without intolerance, arrogance and, above all, without race hatred, assisted by word and deed those whose extermination, according to the Prosecution, was part of his program. This he did in conscious opposition to the National Socialist doctrine with great danger to himself. III of the indictment will not be justified. why the defendant Felix Ruehl in his and my convictions should not find himself before this Court.
THE PRESIDENT: Before we recess we would like to evince the situation as to the Opening Statements which we are ready for this afternoon's delivery. Naturally, this will be of no concern to those attorneys who have already spoken.
Mr. Hodges, Chief of the Translation Section, is here. Will you kindly stop to the podium, Mr. Hodges, so we can ascertain where we stand. It seems from the evidence before us that at the present time we do not have the Opening Statements in the English translated form, of the defendants Sandberger, Seiberg, Steimle, Nosske, Strauch Klingelhoefer and Fendler.
Will you please indictae to the Tribunal Mr. Hodges, what your position is in that respect?
MR. HODGES: I have just delivered to the Interpreters' Booth, all the statements on the part of defense counsel for each defendant, except Sandberger and Strauch. Those Opening Statements have been translated. The stencils have been cut, and they are, to the best of my knowledge, in Mr. Frank's office, Room 580, now.
THE PRESIDENT: Splendid.
MR. HODGES: There are no longer any translation problems with reference to those Opening Statements.
THE PRESIDENT: May I ask the Interpreters here. You have all the Opening Statements yet remaining, with the exception of Sandberger and Strauch?
INTERPRETER: Yes, Sir.
THE PRESIDENT: Well, then there is no reason for delay this afternoon. We will move right along.
Thank you very much, Mr. Hodges.
The Tribunal will now be in recess until two o'clock.
(The Tribunal recessed until 1400) (The hearing reconvened at 1400 hours, 7 October 1947)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Dr. Bergold, are you ready to proceed now?
DR. BERGOLD: Yes, yes.
May it please the Tribunal: case is a very difficult one. As it has hardly ever occurred before, the sentiments of the world are against the defendants and want to find them guilty before the proceedings have even come to a close. But in no other case was the wisdom of the law more to be admired which prescribes that every man must be defended, may the crimes for which he is accused be as obvious as they can be. In this particular case the defense can present deliberations which will have to influence the verdict. statement, discuss in detail the competency of the court. I assume that our opinion with regard to this question will be presented in time by the defense. The only point I want to refer to at this moment, is, that these very statements of the prosecution about the competency of the court prove that in this trial the legal situation not only resulting from Control Council Law No. 10, will have to be taken into account but especially that originating from the fact that all actions brought before court in this case have taken place in the territory of the USSR. If this Tribunal is to be an international one - and I do not intend at this moment to assume this without reservations - if any national tribunal should be in a position to punish actions of this kind, regardless by whom they were committed and where, the special legal situation prevailing at the place where the crime was perpetrated must also be taken into account, unless a trial held by a foreign court in a foreign territory must result in depriving the defendant a priori of his pleading justification for his acts.
with special care the fact that the USSR, as I have proved in the case of Milch, did not only not sign the last Geneva Convention, but that she even expressly withdrew from the former conventions, among which were also the Hague Rules of Land Warfare. Furthermore, it will have to be examined whether this did not also constitute a withdrawal from international law which up to that time had been valid without any codification, since otherwise, the cancellation of contracts representing only a codification of the already valid international law would appear as a senseless action which cannot be expected from the shrewd statemen of the USSR. ted by the defendants represent in part, or from the point of view of some of the defendants, only a retaliation for acts committed previously on German soldiers by nationals of the USSR in disregard of international law. This point of view is important for the defense of the defendant Biberstein because his activities with the Einsatzkommando 6 did not begin until October, 1942. Einsatzkommando 6, no more real mass executions took place, that no more executions with the purpose of annihilating Jews or political opponents were ordered, but that the executions which were carried out during the period of his activities were effected only after thorough investigations and that they represented retaliation for crimes and hostile acts for which the perpetrator would have been punished with death by any other state waging war.
the theory that the prosecution would not undertake the burden of showing the defendants' knowledge of all the crimes committed; nowhere on earth would the law - and those are the trends of thought of the prosecution - impose such a burden on the law. I consider such a statement unusual. If it were to remain uncontradicted in its absoluteness, a fundamental principle of all justice would be destroyed, namely, that every man is entitled to be presumed innocent. A complete rejection of the duty to show proof seems to be inhuman to me, because in this way Law would become an unescapable fate for everybody even for the innocent defendant. facie evidence is recognized, i.e. evidence on the basis of the first appearance of the facts. No legal theory of any civilized nation, however, means by this doctrine to relieve the prosecution completely of the burden of showing evidence which is its duty. It only means, that if a certain complex of facts is known, their first appearance may sometimes speak seriously against a defendant. If, however, the defendant on his proves - also only prima facie - that that special rule of first appearance does not apply in his case, the privilege of the prosecution resulting from the prima facie evidence becomes invalid and the prosecution will again be subjected to the most severe requirements for proving their case by evidence. For this reason, I solemnly protest against the prosecution's pronouncement of that legal principle. One must not, because of the especially serious indictment in this case, abandon the established rules for adjudication. There is a great temptation for any simple mind to deal tyrannically with accused tyrants. But just democracy demands that such temptation be resisted, for a democrary which abandons only one of its principles, and were it only temporarily, is already on the dangerous road to the abyss.
prosecution's onus probandi means, that it will have to prove separately and for his particular case, that such mass executions constituting a crime against humanity happened, namely shootings without any proceedings, for the mere reason that the victims belonged to a certain race or had a certain political conviction. The defendant Biberstein violently denies that shootings of that kind took place while he was serving with the Einsatzkommando 6. seems to me just as fatal as the complete rejection of the onus probandi. In the case of the defendant Biberstein, the prosecution was in a position to present only one real document of evidence, namely the affidavit of the defendant Biberstein himself. This affidavit was written in a way that at a first glance, an incrimination of the defendant Biberstein could be deducted from it. excerpt from the total statements of the defendant Biberstein. Biberstein gave a more detailed statement once before at Eselheide. During the interrogations preceding the drafting, of the two affidavits, the defendant stated in detail that he never took part in a criminal execution. He also stated that all executions which were carried out during his activities, were effected only after thoroughly conducted proceedings, during which the defendants had confessed all their criminal deeds, usually murders of German soldiers. Those exonerating statements were, however, not incorporated into the affidavit. Attempts on the part of the defendant to the effect to have his exonerating statements incorporated in the affidavit were - as far as I know - rejected with the misleading and only seemingly satisfying explanation that some other time and at some other opportunity the defendant would be in a position to submit his reservations and explanations. I am calling such an explanation misleading because any court is skeptical against later attempts by a defendant to amend statements and is liable to accept as truth only the first statement.
Finally, the defendant was not even informed, when the affidavit was taken down, that it would be used as evidence in proceedings against him. It has been neglected, to draw his attention to his basic rights to refuse to testify against himself, which basic rights exist in criminal proceedings of the world, especially however, in the United States. The defendant was misled into assuming that he was making this statement as a witness, because he had also been asked to take an oath before.
THE PRESIDENT: Dr. Bergold, excuse me for interrupting. You, of course, may proceed with your arguments, and I don't want to limit you in saying what you intend to say, but I just want to suggest that possibly that what you are giving us now is more in the nature of a final argument, rather than an outline of what you intend to produce.
DR. BERGOLD: Your Honor, if you will continue to listen to me, you will understand why I make this explanation. It is not a final plea, but an opening statement because it refers to the coming evidence.
THE PRESIDENT: Proceed.
DR. BERGOLD: The German defendants are completely uninformed about their rights in the American proceedings which in themselves are entirely unfamiliar to them, so that the least that could be demanded from justice would be to explain things to those people before proceedings are started.
are presented to the court and on top of it taken out of their contents, if, furthermore the attempts of the defendant to make corrections in the wording of such an affidavit, are rejected with the misleading explanation such corrections could he made later on, and if, in addition to that, a defendant is not told that according to the rules of procedure he is entitled to refuse statements incriminating himself, I cannot refrain from stating my conviction that such procedure cannot be called fair any more. defendants, I received the impression that the manner in which affidavits are obtained from the defendants is a rather dubious one. The grievances which I have uttered here have been raised exactly in the same way and to the same extent by the defendants in all cases handled by me. If, however, as in this case, the prosecution presents only one real incriminating document, namely an affidavit obtained in such a manner from the defendant, the limit is reached and it becomes the duty of the counsel for the defense to point out those procedures and to raise his voice in warning and complaints. Tribunal I had a controversy with the Honorable Justice Jackson. At that time, I objected against the procedure of the prosecution to present only the incriminating parts of a large document, and to leave out the exonerating parts, which would have neutralized the incriminating ones. I pointed to article 160 of the German Code of Criminal Procedure and to the corresponding articles of the Austrian Code of Criminal Procedure where the law expressly stipulates the Prosecution's duty to gather also exonerating evidence and to submit it before the court.
The Honorable Justice Jackson replied to me that this could not be demanded, he could not serve two masters. Nevertheless, the International Military Tribunal instructed the Prosecution in such a case to present the document in full, i.e. including the exonerating parts and that from the start, without having been asked by the defense to do so. Only this wise ruling by the International Military Tribunal, a precedent for our case, is in accordance with justice. The point is not whether or not to serve two masters. We all here serve only one mistress, namely the truth. She is always the same. But is truth not in danger if affidavits which were obtained under such circumstances and with such restrictions are submitted? I do not hesitate to state that such an affidavit, if it is the only recall incriminating evidence against the defendant has no real and admissible value as evidence. other cases, as far as I know them, the prosecution was in a position to present objective evidence against the individual defendant and I prefer to conduct my defense without making trouble. The special situation here forces me to state my objections openly before you. You may be convinced that I have deliberated very seriously before I come out with all this. But who can go on keeping silent if he really wants to fulfill the duties of the defense? The duties of the defense are the duties of democracy to which all of us here have to live up. of the same sort as the men accused here. Only for a very short time, and against his own will, was he leader of an Einsatzkommando, and from the very beginning, when he received the command to take over the Kommando he objected to that order. He did not do that because he knew about the terrible things that had happened previously with Einsatzkommandos.
at the Reich Ministry for the Interior. I have already stated that during his time of duty the executions were carried out on the strength of a kind of sentences in certain cases for clearly defined actual crimes. If all this is taken into consideration, there is no proof for the defendant's guilt. Neither can be hold responsible for the manner of the procedure. There were regulations for the procedure and he had to observe them in order not to become liable to punishment himself, so that in this connection - as I am going to point out later on - the sentence of the Supreme Court in the case of Mac Intosh must be considered. It is obvious that, in view of the special position of the defendant, not only the incriminating parts of his statement are to be used as a basis for the verdict. Such a statement must be used in its entirety, and in favor of the defendant it must also be considered what he has to say for his exoneration, especially if the exonerating elements will present an entirely different picture of his action than that which the prosecution wants to depict. for many years. This fact alone makes it seem likely that the defendant could hardly have been a slaughterer of human beings and that he, more than anybody else, could become convinced that the executions carried out during his activities were justified and were taking place on the strength of an adequate and sufficient procedure. All this is much the more important since I am also going to prove that during those times of war serious crimes were committed against German soldiers by the Russian population, which could not find your approval either, gentlemen of the Tribunal; the legal principle that two wrongs do not make a right cannot be applied to this case, since the point is to prove that a death sentence has been pronounced against wrongdoers.
believed that he did not have to have a bad conscience. He was with the Kommando far such a short time that he hardly remembers the people who were there with him, and especially does not even know their whereabouts. This makes it difficult for the defense, so that the swiftness of the proceedings is harder on us than on other defendants. I therefore ask the Tribunal to stay favorably inclined towards me and not to hold it against me if, against my will, I may perhaps be compelled to submit some evidence somewhat belatedly. Situations are often stronger than the best of will, I am, however, fully confident that the High Tribunal will be just in every respect.
THE PRESIDENT: Very well. Dr. Hoffman, you may proceed.
DR. HOFFMAN: Dr. Hoffman for the defendant, Gustav Hosske. blems, and I am convinced, that each one of them has given them profound and long reflection. these arguments.
I may point out the case against POHL et al. and state, that there may be fundamental difficulties prescribing a kind of Defense which is altogether different from the usual one.
Also in the case against POHL et al. the work of the Defendants had been brought into connection With inhumane acts and cruelties. However, in that case inhumane acts and cruelties developed from facts of the most various kind, and several of the Defendants knew nothing of their existence, even less participated in them. just as no one who is present in this room wants to lose his. by truth and Justice. advantages and disadvantages in going so far. such a murderous order as the one in the center of the Prosecution's Indictment. others by myself committing wrongs. spect, will also once be judged.
In this it is better to see one's own weaknesses, before one goes to Law oneself to ask for justice.