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.
of the Defendant NOSSKE: He rail confine himself exclusively to what he can state out of his own personal experience. and what were his reactions to it. afterwards till the end of the war. into consideration the personal fate of the Defendant NOSSKE.
DR. MANDRY: Dr. Mandry for the defendant Martin Sandberger. responsible for measures of persecution taken against Jews and Communists, at the Sonderkommando la respectively during the period when he was commander of the Security Police and the SD for Estonia. reports, reports on activities and the situation. These reports are a compilation of individual reports not available in the original of several Kommandos subordinate to the Einsatzgruppe. From these general reports the clear and unobjectionable proof for criminal actions of certain persons can be deducted, For this reason the prosecution, taking three affidavits given by my client as a supplement in connection with these reports, drew the conclusion that SANDBERGER is guilty in the sense of the indictment. prosecution.
1) SANDBERGER's assignment in the East was effected upon order of his superior authority and constituted a war assignment in enemy territory.
He was subject to the laws of war like any soldier. It had become impossible for him to shun the carrying out of the orders given to him.
The verdict of the IMT (Page 16514 of the German transcript) takes this into consideration. The reasons on which the sentence is based with regard to this point are as follows:
"During the war a member of the Security Police and SD did not have a free choice of assignments within that organization and the refusal to accept a particular position, especially when serving in occupied territory might have led to serious punishment." committed under the compulsion of the laws of war in enemy territory and under the compulsion of orders and control measures issued by the superiors HIMMLER and HEYDRICH, the Amtschefs STRECKENBACH and MUELLER at the RSHA, as well as by the higher SS and Police leaders for Northern Russia (the SS Obergruppenfuehrer and generals of the Waffen SS PRUETZMANN and JECKELN) and also especially by the chief of the Einsatzgruppe STAHLECKER, SANDBERGER's immediate superior. I shall prove that in carrying out the orders he received STAHLECKER developed a great amount of energy and that JECKELN was just as hard and unpredictable a superior, who would have broken the slightest resistance with all means of the power at his disposal.
II) propaganda declared time and again before the beginning of the Russian campaign and during it that, in keeping with the ideology of bolshevism, the Soviet Union was on principle aggressively inclined, that it represented an acute danger for the life of the German people and the entire Western world, that it had planned an attack on the German people and that that was a matter of life and death for Germany. The Defendant who had been a National Socialist since his 20th year believed in these statements.
when the campaign in the East started: The Soviet Union had not joined the Hague Rules of Land Warfare and the Geneva Convention: neither did they feel bound themselves by other custons of war. For that reason the general international rules of war would not apply for the Germans either in their war against Russia.
III) STAHLECKER with the High Command of the Army Group North my client was destined for an assignment in Estonia. He was attached to the 18th Army. When he arrived at the territory of the assignment given to him, he was told the following: During the time of the occupation of Estonia by Soviet Russia in 1940/41 many Estonian citizens had been killed by Soviet authorities without any justification and without any proceedings; several tens of thousands had been arrested and had been removed from Estonia against their will. The entire property in real estate as well as the greater part of commerce and industry had been expropriated and the former liberty of the Estonian population had been destroyed. for years the republic of Estonia had prohibited communism by a law and that any communistic activities had been liable to serious punishment. He furthermore learned that the government of the Soviet Union had instituted an organization in Estonia, which had orders to carry out sabotage and espionage after the Red Army had withdrawn from Estonia and the country was occupied by German troops. The entering German troops were especially impressed when they learned that before evacuating the city of Derpat in the middle of July the Soviet authorities had shot all political prisoners of the Derpat prison, 250 of them, in the court of the prison. population, numbering approximately 4,500 persons, in general had gone over to the Soviet side during the time of the bolshevist occupation.
They were holding important offices in key-position of the Soviet state and party machine, especially in the secret police, the NKWD. the Jews in Estonia confirmed to the defendant all that he had been told at the beginning of the campaign in the East by the Fuehrer order and by the motivation for that order given him by his superiors. Especially in Estonia it was more evident than any where else that the Soviet Union had violated international law, the national laws of Estonia and the laws of humanity in general.
IV) of assignment seemed necessary for the protection of the territory assigned to that Kommando. Upon request of the Army High Command and upon order of chief of the Einsatzgruppen STAHLECKER its foremost task during the first weeks was to attach itself with Teilkommandos to the fighting troops and mostly to take care of tasks of the intelligence. In addition to that the field of activities of the Sonderkommando included the prevention of sabotage and espionage, which was carried out especially by Jews and communists. had never been active in the service of the police. He therefore had no experience in this field and personally was not especially eager to do that kind of work. His former activities in the SD never included andy police work, but during his membership in the SD he was occupied with making reports about German spheres of life. statements about the contencts of those reports, to which I refer herewith. perience of my client were in the field of political intelligence and in exploiting that for politics and administration, I will prove in detail that the authorities of the Wehrmacht as well as the official authorities of the now German civil administration and the Estonian authorities of the re-instituted sovereign administration claimed a great deal of the time of my client for their purposes and tasks.
He received especially trained, and indepently working specialists for the special departments IV and V, i.e. the Secret State Police and the Criminal Police. They were given special independence in their work. SANDBERGER's activity in connection with them was limited to inspecting their work. Teilkommandos were given full independence and responsibility of their own. The superior authorities, especially the chief of the Einsatzgruppen STAHLECKER had ordered that expressly. My client was anxious to respect at all times this responsibility and independence of his subordinates.
V) arrests and trasfers to camps and in a number of special cases in executions. In accordance with the above-mentioned orders of the chief of the Einsatzgruppen, the leaders of the Teilkommandos were responsible for the decisions in each individual case, and later on, after everything was centralized in Reval, the leaders of the departments State and Criminal Police were responsible.
While the fighting in Estonia was still in progress my client's own proper activity in this sphere consisted mainly of drawing up regulations in the frame work of the existing orders on the special jurisdiction in the Barbarossa territory according to the followingprinciples?
a) Individual statement of guilt and legal hearing: into the actual facts and statement of the guilt and without the accused having been given the opportunity to defend himself.
b). Problem of collectivity.
c). Executions were only permissible if the person concerned had been convicted of and had confessed to have perpetrated sabotage or espionage or if during the years 1940/41 of the Russian occupation he had committed crimes against the life of any Esthonian citizen.
d). The execution of all measures against the population and connected with the Security Police was effected by the Esthonian police and under the control of a member of the Sonderkommando, In doing so any harshness not necessary for the purpose of the measure should be evaded in its execution.
VI) in 1941, this did not happen under the responsibility of my client, but under the exclusive responsibility of STAHLECKER.
In order to be able to report as executed STAHLECKER's order, to free Estonia of the Jews immediately, however, without personally having to order the executions of Jews, finally my client in November 1941 had all remaining Jews in Esthonia brought from the internment camp at Revel to a camp near Pleskau.
Pleskau is situated outside Esthonia on Russian territory, but at that tine it belonged into the office district of my client. of 1942 in Pleskau, does hot come under the responsibility of my client, because it had been personally ordered by the Higher SSand Police Leader Jeckeln, who was the competent legal magistrate at the same time, pad to the execution of which a subordinate of my client had been forced, without my client having been present or having been informed of its execution. my client under the pressure of the orders given, but he had then retarded far beyond the time given already for the execution of the Jews. admissible according to principles of international law, analogous to the internationally approved measure of interning enemy aliens. not take actively part in the extermination of Judaism. As to the criminal responsibility concerning the internment of the Jews as caused by my client, it has to be considered that Sandberger as a National Socialist official had sworn an oath of allegiance to Adolf Hitler and to his superiors as appointed by him. Furthermore, he felt bound to his military duty of obedience and he had to decide either to contribute to the ordered extermination of the Jews or on his own initiative to alter and to interpret the measures ordered which at least for the time being saved the Jews from immediate death. There was no other possibility for my client in this terrible state of coercion. In this connection I shall extensively enter on the problem whether or not an open refusal to obey orders end the consequences this would entail could be expected.
the Einsatzgruppen in general and, with certain exceptions, in his Kommando, But there was no possibility for him to prevent these events, for they had been ordered by his superiors, If he would have taken any stand against these orders of his superiors and measures to prevent their execution, the consequences would have been that his superiors would have ordered his death, without anything having been altered in the events. in the East, respectively the Security Police and. the SD, were so Mechanical, that if one leader was lost, automatically a replacement took his place, who then had to see that the order was being immediately executed. My client was of the opinion that his successor would have executed these orders without any reservations. several tines the disapproval of his superiors in the Security Police, which I will prove.
As to point No. 3 of the indictment (membership in criminal organizations) I will show, that according to the IMT Verdict the prerequisites for sentencing my client are not given. Though Sandberger was with the SD after 1 September 1939, first of all he was only active in Department I of the RSHA. When later on in 1941 my client joined the Osteinsatz, he was ordered to do so, and it was not possible for him to get out. The same applies for his assignment in Offices III and VI of the RSHA. client I shall bring evidence by submitting documents, witnesses and statements of the defendant himself, whom I intend to call to the witness box.
THE PRESIDENT: counsel for the Defendant Seibert.
DR. KLINERT: Deputy for Dr. Gawlik for Seibert. the case against the Defendant Seibert will be based on the legal principles laid down already by Tribunal II in its judgment in the Milch case and also by t he Supreme Court in the Yamashita Case. plained by me in my Opening Statement for the Defendant Naumann: 1. Did the Defendant Seibert personally take part in executions? 2. Were these carried out under his direction or under his orders? 3. Did he have any knowledge of the executions before they were carried out? 4. If so, did he have the power or the opportunity to prevent them or to stop them? 5. If this is also the case, did he fail to act and did he in this manner become a particeps criminis and accessory to the act? ad 1.) Seibert did not kill any of the persons mentioned, in the Documents presented against him. While he belonged to Einsatzgruppe D he never served in an Einsatz- or Sonderkommando, which alone had to carry out the executions. But just as little did he supervise the executions or participate in them in any similar manner. Such tasks were never assigned to Seibert in his capacity as Deputy to the Chief of the Einsatzgruppe. This is already impossible for the simple reason, that he never was Ohlendorfs Deputy. task it was not to carry out executions. Therefore he also never received orders for the carrying out of such measures, Nor was his field of work connectedin any way with such tasks. Seibert had been assigned to the Staff of the Einsatzgruppe only as Chief III (Leiter III).
In this capacity he had to make the reports. In all essential points this was the same kind of work that Seibert had to deal with, when he was in Amt III of the Reich Security Main Office in Berlin; this was also the reason, why he was assigned to the Einsatzgruppe. This task occupied Seibert's whole time, which is easily understandable in view of the enormous size of the area of the Einsatzgruppe. wise had nothing to do with the executions he is charged with. These tasks included especially liaison with the Army. Owing to this activity Seibert, acting for Ohlendorf, signed the reports to the High Command of the 11th Army, dated 9 October 1941 and 16 April 1941, which have been submitted by the Prosecution as Documents NOKW-629 and 628, Exhibits 159 and 160. It cannot be understood, how the Prosecution wants to deduct from the text of these Documents Seibert's responsibility for the measures mentioned in the documents. Ad 2.) orders for the carrying out of these executions. Nor did he ever transmit any orders to the Einsatz- and Sonderkommandos under his command for the carrying out of these executions. He could not do this for the simple reason, that Seibert was not a Chief of the Einsatzgruppe D, who was invested, with the power of command; moreover, he himself never received such orders. I have already emphasized, that Seibert was merely specialist III in the Staff and entrusted with the writing of reports. Seibert had been assigned to the Einsatzgruppe only for this purpose. This follows from the mere fact, that, as I shall prove, Seibert never had anything to do with the executive, either before or after, not even as regards information. satzgruppe D. To this extent the statement of the Prosecution is incorrect, as I shall demonstrate in detail in my Case in Chief. As far as any doubts on that point might be possible on the strength of the documents submitted by the Prosecution, I shall clarify in my Case in Chief, that Seibert never was deputy of the Chief of Einsatzgruppe D and especially never commanded Einsatzgruppe D in Ohlendorf's absence.