gruppe neither by Ohlendorf nor by any other superior agency nor had he ever been entrusted in practice with the functions of such a position. Seibert could not hold such a position for the simple reason, that he was not the senior Chief with the Einsatzgruppe. In Ohlendorf's absence the Einsatzgruppe was led by the individualChiefs of Kommendos for their areas. Ad 3.) dommandos under Einsatzgruppe D carried out executions. However, this knowledge is not in itself sufficient to establish Seibert's criminal responsibility. To this extent I refer to my argument in my Opening Statement for Haumann. previous knowledge of the executions he is charged, with. establish criminal responsibility. The Prosecution moreover had to prove that Ad 4.) the carrying out of these orders and to stop them, and Ad 5.)
Already according to the Prosecution's own statement these conditions do not exist. D Seibert had neither the power nor the opportunity to prevent the the executions carried out by the Einsatz- and Sonderkommandos under Einsatzgruppe D. Not even the Prosecution has asserted this and I therefore believe that the Prosecution will so far agree with me.
In any case the Prosecution had to show what the Defendant Seibert could do and would have had to do to prevent the carrying out of the executions. The Prosecution has offered nothing to that effect.
Einsatzgruppe D was under the Defendant Ohlendorf's command. The execution orders, in virtue of which the Einsatz- and Sonderkommandos acted, were based on orders of Hitler, which were transmitted by Himmler and Heydrich and the execution of which was supervised by these persons.
The Defendant Seibert had a *---*er rank than the Defendant Ohlendorf and was subordinate to the latter Sonderkommandos under him, which were partly commanded by men with a higher military rank than Seibert's.
THE PRESIDENT: The Tribunal will now he in recess for fifteen minutes.
At the request of Sandberger's counsel the Defendant Sandberger will be excused from attendance in Court for the rest of the day.
(A recess was taken.)
Court No. II-A, Case No. 9.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Counsel for the Defendant Steimle.
DR. LUMMERT (ATTORNEY FOR THE DEFENDANT BLUME): Your Honor, I would like to be permitted to ask the Tribunal whether it would be possible for the Defendant Blume to be excused from the session tomorrow also, because I have to prepare his defense with him.
THE PRESIDENT: The Defendant Blume will be excused from attendance from court tomorrow in accordance with request by his counsel.
DR. LEIS (ATTORNEY FOR DEFENDANTS STEIMLE AND KLINGELHOEFER): Your Honors, I would like to inform you that I have received the opening statement for Steimle yesterday. Perhaps I can continue with the opening statement for Klingelhoefer. trial to establish the actual facts and to examine their connection with the individual defendant. The Defense will also have to examine factors not contained in the evidence of the Prosecution which are nevertheless of great, if not of decisive importance. There would be no difficulty in dealing with this case if one could assume from the beginning that everything contained in the action reports presented here, was done on the strength of the defendants own decision. One can hardly deny that such an opinion would be incorrect. The question arises therefore, what was the cause for the defendants' cooperation in the Einsatzgruppen, the Sonderkommandos and the Einsatzkommandos. The answer to those questions will necessarily constitute a considerable part in the work of the Defense. It will become evident that the defendants were not the instigators, but the executive organs, subject to the inexorable law of a command, not issued by some individual, but deriving from the highest state authority. May I refer in this connection to the statements which I have made already in my opening speech for the defendant STEIMLE. The case of the defendant KLINGELHOEFER is to be judged from the same point of view. He was a member of an Einsatz Court No. II-A, Case No. 9.gruppe without having the possibility to decide freely whether he ever wanted to become a member or whether he wanted to remain one.
His own attitude with regard to this membership was of no importance, he had to fill out the place where he was told to stand. as a starting point when examining how he behaved in this situation into which he had been forced. logical order, first a member of the Sonderkommando 7b, deputy chief of the Vorkommando Moskau, furthermore, leader of a smaller Vorkommando and finally member of the Gruppenstab of the Einsatzgruppe B. From about the middle of the year 1941 until December 1943 he was active in the Einsatz in the East. In the course of my argumentation I will first attempt to explain the actual positions held by the defendant within the Einsatzgruppe B, which Kommando he had led and which were his tasks in connection with that. is concerned, I shall explain that he was assigned to that Kommando on account of his command of the Russian language. The defendant was born in Moscow, the son of German parents, and spent the first fifteen years of his life in that city. This factor was the only reason, why, in 1935, he was taken into the SD. The description of his activites with the SD-sector Kassel will explain the nature of his activities for the period prior to his assignment to the Sonderkommando 7b. It will, however, also show the contents and goals of his field of activities, during the Einsatz Russia, and which in fact, did not change regardless of the positions he held. It does not seem to be surprising that a man who had a command of Russian and had gone to school in Russia, was especially suited for taking over the evaluation of the captured documents for the purposes of the intelligence service. no time charged with the independent command of the "Vordommando Moscow", Court No. II-A, Case No. 9.It will be seen that for a short time only he was formally reported as the deputy commander of that Kommando.
This was caused by the interval elapsing between the date, when the former head of the "Vorkommando Moscow" was recalled, namely Defendant SIX, and the date when his successor, SS-Obersturmbannfuehrer KOERTING arrived. The actual command over "Vorkommando Moscow" for this interval was taken over by the head of Einsatzgruppe B, NEBE, whose offices were located in the same building in Smolensk anyway. I shall produce evidence for the clarification of these organizational circumstances by submitting an affidavit by the Defendant, which was taken down by the interrogator of the Prosecution, Wartenberg, on 17 September 1947. the independent command of the Defendant and which were his duties there. In the course of this it will become clear that the "Vorkommando Moscow" was dissolved about the end of September 1941 and that KLINGELHOEFER was entrusted with the command over a newly formed unit, the socalled "Vorkommando Gruppenstab". The latter was to secure archives for the purpose of the intelligence service in case Moscow was taken, following directly behind the advancing German troops. In order to realize this intention, the "Vorkommando Gruppenstab" was called to Shatsk, where the Army High Command for this sector of the front was stationed. The Kommando remained there inactive until its dissolution in December 1941, as it was out of the question to take Moscow. of Einsatzgruppe B did not effect any changes in the type and purpose of his field of activity. The Prosecution did not produce any action reports for this period which extends to the end of 1943. In the witness stand, the Defendant will, however, give account of his sphere of activities during that time. It will be seen, that although he was incorporated into the organization of Einsatzgruppe B, he was one of those people who had to apply himself to the requirement of the intelligence service on the strength of his special knowledge of the Court No. II-A, Case No. 9.conditions in Russia.
It goes without saying that he was also serving as an interpreter during his entire term of duty in Russia. In spite of these facts, KLINGELHOEFER took part in two executions. The circumstances leading up to and the part he himself played in these events require detailed explanations by himself in the witness stand. Prosecution and Defense will have to screen them very carefully for their real probative value as far as it concerns the Defendant. For it is obvious that owing to the nature of these reports which covered a wide area and were a summary of a multitude of individual reports, errors occurred. They are not alone due to human inadequacy, but can and probably did originate from the generous tendencies of the reporting officers themselves. I know myself to be in concord with the Tribunal, that the Defendant shall only be charged with such acts, in which he actually participated in person and exercised decisive influence.
THE PRESIDENT: Counsel for the Defendant Strauch.
DR. GICK (ATTORNEY FOR THE DEFENDANT STRAUCH): Your Honors, in order to facilitate a better understanding of my defense for defendant STRAUCH, it is necessary to make the following definitions which are of fundamental significance: created in order to protect the territorial gains of the Armies advancing in the East. the Army units.
Consequently, it follows that: 1.) The Einsatzgruppen and Einsatzkommandos were directly subordinated Groups and the Einsatzkommandos under the commanders of the Armies. 2.) Einsatzgruppen and Einsatzkommandos received their orders regarding Court No. II-A, Case No. 9.
3.) Einsatzgruppen and Einsatzkommandos existed only in areas under They were replaced by:
1.) The chief commanders (Befehlshaber) of the Security Police
2.) the commandants (kommandeure) of the Security Police and agencies of the Civil Administration. They had nothing to do with army units. They were agencies of the civil administration system which had been instituted in the East and which were headed by Reichcommissioners and higher ranking officers of the SS and Police for "Ostland". chief commanders lay within the civil administrative sphere. Their activities were exactly the same as those of the corresponding administrative authorities and police offices in the Reich, for example the observation and enforcement of laws and ordinances issued in the respective area under civil administration, such as the collection of political news, the prosecution of criminal offenses etc. structure consisting of six different sections. with the Einsatzkommandos. They operated, as described above, in the advanced army areas. Entirely different persons were used there as leaders who were with their units at the front. was similar. Only in so far did a certain connection of personnel Court No. II-A, Case No. 9.*---*st here, as the chief commanders of the Sipo and SD combined their positions with those of the chiefs of the Einsatzgruppen through a personal union.
But as far as their work was concerned, they had nothing to do with each other, a fact which becomes clear through the following example: the chief-commander of the Sipo and SD Ostland had his headquarters in Riga, that is in the area of the civil administration, although his headquarters as Chief of Einsatzgruppe A was in Krasnowardeisk, that is directly within the Army area. hearing of witnesses and the presentation of documents. Einsatzkommando 2 of Einsatzgruppe A. I shall establish proof that defendant STRAUCH came to Latvia and WhiteRuthenia on March 22, 1942, that is at a time during which these territories already were under civil administration. Einsatzkommando 2, as, in fact, he was not. 1941 in the area around Leningrad. It seems that at that time this was Sturmbannfuehrer PLOETZ. Einsatzkommando 2 merely had a school in Riga for training purposes of the kommando. Their teaching staff comprised one leading and five subaltern officers who instructed one to two Latvian companies. Both, teaching staff and trainees, were exclusively under the command of the Chief of Einsatzkommando 2. Latvia, only for a few days. However, as I shall prove later he was transferred to White-Ruthenia as commandant of the Sipo and SD. Einsatzkommando 2 is erroneous. activities for which Einsatzkommando 2 must be blamed.
Court No. II-A, Case No. 9.
fact that Strauch for the period in which he is charged with the responsibility for the incidents as defined in the indictment, cannot even be considered the responsible commander of the Security Police and the SD. Although in the indictment STRAUCH is mentioned on November 4, 1941 as Commander of the Security Police and the SD; he only arrived in Latvia on November 10, 1941, and assumed his duties only from that date on.
Approximately one week after this date, however, i.e. around November 18, 1941, he became incapacitated due to a complicated fracture of his arm. He was replaced by a deputy commandant, a certain Dr. LANGE, who from this point on conducted all affairs entirely independently and without any possibility of interference from the side of STRAUCH, - and who remained in this position until he was formally appointed commander. chief commander of the Sipo and SD. appointed commandant of the Sipo and SD in White-Ruthenia in the meantime. had the same independent position as commander there as Dr. LANGE in Latvia. over the command in White-Ruthenia. He arrived in Minsk on March 22, 1942. Before that he never had been in White Ruthenia. independent and responsible one and is therefore not comparable with a mere substitution during an absence, STRAUCH cannot be made responsible for the events which occurred during the regime of his deputies, not considering the fact that these deputies were never in charge of the Einsatzkommando 2.
Court No. II-A, Case No. 9.
and presentation of documents. mentioned in the documents as lying within the area of the commandant of Sipo and SD of White Ruthenia, actually were not situated in that area. Consequently, a connection of defendant STRAUCH with the events that took place in these localities, cannot be considered. Kube-letter of July 31, 1942, submitted by the prosecution - Document 2829, Exhibit 111 - and through hearing of witnesses and presentation of documents prove this letter to be objectively incorrect.
THE PRESIDENT: Counsel for Defendant Fendler.
DR. LEHMANN (ATTORNEY FOR THE DEFENDANT FENDLER): May it please the Tribunal, in the case of the defendant FENDLER the prosecution has referred in all to six of the documents which it introduced into the proceedings. From these documents may be seen, according to the statements of the prosecution, that FENDLER belonged to Sonderkommando 4 b as an officer and during his membership in this Kommando he learned unofficially that executions had been carried out. According to the statements of the prosecution, such executions were carried out by Sonderkommando 4b at places where FENDLER was stationed at that time with this Sonderkommando. a member of the SS and also of the SD and thus considers as proven his membership in an organization declared to be criminal by the International Military Tribunal. guilt under counts 1, 2 and 3 of the indictment. course of the introduction of its evidence that during his membership in the SD the defendant FENDLER performed only duties connected with intelligence and information. Thus, for instance, during the time when Court No. II-A, Case No. 9.he belonged to the SD before the Eastern campaign commenced in 1941 he worked in various offices of the SD, dealing with the protection of industrial plants.
After he had become a candidate for executive rank in the autumn of 1940 and studied law, he was assigned to field duty in the summer of 1941 on the basis of his qualifications. He was assigned without any action on his part to Sonderkommando 4 b which had then been newly formed in Einsatzgruppe C. At that time FENDLER only knew that his Sonderkommando was to be an advance Kommando of the Einsatzkommandos of Gruppe C. He was not informed of the detailed orders which the officer in charge of the Kommando had received. Above all, he had no knowledge of the fact that Einsatzgruppen and Einsatzkommandos which had executive powers would have to perform deeds which would violate the laws of warfare and would include inhuman acts. He was even less aware that they were to take part in the so-called "final solution of the Jewish question". As early as 1938/9 FENDLER was engaged, with so-called Einsatzgruppen, in the occupation of the Sudetengau and Czechoslovakia and took part in the establishment there of offices of the SD. He could therefore only assume that on the Eastern front the Einsatzgruppen would have the same duties, as the only expert in intelligence service he was appointed expert adviser of Section III i.e. intelligence expert, in Sonderkommando 4 b. The intelligence section (Section III) within Kommando 4 b had no material connection whatsoever with the executive (Section IV). FENDLER's duty as SD-expert was to secure all intelligence material found in the occupied area and to screen it for relevant information. He also had to make reports on the economic, cultural and political conditions and on the morale of the population. He never at any time worked on the executive side either in accordance with orders or voluntarily. June 1941 until the 2 October 1941 on the Eastern front, therefore some of the documents presented in the case against him which refer to a later date, cannot incriminate him.
Court No. II-A, Case No. 9.
connected with intelligence and information, and as the defendant FENDLER in all the time he was in the SD until the end of the war never performed Counter-intelligence duties for the Executive (Gestapo), he knew nothing of the criminal character of the SD as determined by the IMT verdict. Furthermore, under them existing regulations, FENDLER was not able to leave the SD during the war. It can therefore not be said that FENDLER voluntarily remained in the SD during the war. Nor did he belong during the war to that group of persons in the SS declared to be criminal by the IMT verdict. and witnesses.
THE PRESIDENT: Counsel for defendant von Radetzky?
DR. RATZ (for the defendant von Radetzky): May it please the Tribunal: cases they may not show that the defendants gave explicit orders for the crimes committed by their Kommandos or that they directly participated in the same; however, the prosecution maintains their guilt to be just as great. of the defendant v. Radetzky, who was into the proceedings only subsequently included and of whom the Prosecution will not be able to prove that he gave orders for the crimes perpetrated by his Kommando, nor that he participated in them directly. However, I am not only convinced that the defendant's guilt is not equally great, but that the defendant's criminal guilt does not exist at all, as shall be proven by full evidence in the course of those proceedings.
I trust that already the first sketch of the case v. Radetzky, which I want to outline now to the Tribunal, will make the defendant's nonguilt already sufficiently clear.
When in 1939 Hitler's insane policy bore its first evil fruit, the defendant v. Radetzky was one of the first unfortunate ones who had to taste that fruit. On 15 October 1939 a treaty was concluded between Germany and Latvia, according to which the Baltic Germans Were to be uprooted from their native land and to be resettle in the Reich. From his hometown Riga, where he worked as Prokurist of an export firm, Radetzky came to Posen, together with numerous compatriots and fellowsufferers; there he was active at the advice Bureau for Baltic German immigrants and helped to ease the lot of many a resettler who felt already disappointed in some respects. Already in 1939 he received a second blow. On the occasion of a visit to Posen, Himmler at that time expressed his great displeasure at the independent existence of a representation of the Baltics in the form of their Immigrants Advie Bureau and ordered the transfer of that bureau to the Bureau for the resettlement of ethnic Germans, on SS outfit.
The staff of the immigrants' bureau, for their part, accordingly were incorporated into the SS; obviously this transfer was not effected for political or ideological reasons, it was not even voluntary; it was a purely organizational measure, due to Himmler's mania for unification. Yet another mania played a part in this, the uniform; it was thought that the staff of the Immigrants' Advice Bureau would gain in prestige and it would raise their morale all round, if they were dressed up in SS uniforms. The truth of those facts is proven by the following: Contrary to all tradition and regulations, these men did not have to produce proof of their Aryan descent; the very day Radetzky was received into the SS, he was promoted to SSUntersturmfuehrer, equivalent to the rank of a Lieutenant, without any examination as to his personal and professional qualifications. Radetzky subsequently were the SS-uniform, sometimes with and sometimes without the insignia of his rank, as the occasion demanded. Thus Radetzky belonged to that special category of "wearers of the SS-uniform", that could justly be termed the Quasi-SS. the preparations for the campaign against Russia in 1941, Radetzky had not been called upon - he who not only hailed from the East and had command of the Russian and other Slav languages, but also was an expert on conditions in Russia. Pursuant to the Decree No. 3 for the securing of labor for tasks of special political importance dated 15 October 1938, he was conscripted in May 1941 for service with the Reich Main Security Office. interest; hereby, the following points were essential, in general, and also concerned Radetzky: 1) this was a compulsory conscription, taking place without, and mostly against, the will of the- person concerned, 2) no employment contract was concluded between the person concerned and the now employer, but his previous employment was maintained; this follows, on the one hand, from the legal provisions which are explicit, but furthermore from the fact that the person in question, in our case the defendant v. Radetzky, did not get any salary at all from his new employer, the Reich Main Security Office, but merely a small "indemnity for personal expenses", 3) apart from the lack of voluntariness, a particularly typical feature of the liability for emergency service consisted in the usual transfer of the person liable for emergency service into a professional atmosphere which was quite unknown to him, so it was something quite common if, for instance, a manufacturer of picture frames or the professor at a girls' school became liable for emergency service as a police sergeant.
So the export merchant from Riga and former Latvian citizen v Radetzky came to the Reich Main Security Office, without having contributed to this fact by his free will even a single time in the chain of the facts that had caused this effect.
v. Radetzky came first to the border police school Pretzsch and, already after some weeks, in July 1941, to the Sonderkommando 4a set up at Schmiedeberg. v. Radetzky was not a specialist in the field of the Security Police or the Secret State Police; he had, in this respect, as little notion as any other ordinary citizen, he had even less any notion because lie had been a foreigner up to 1939; but v. Radetzky knew Russian and other Slavic languages, besides, and particularly, he was well informed about the Russian country and people; in addition, by virtue of his intelligent and distinguished objective manner, he was particularly gifted for initiating and cultivating relations, for observing correctly, investigating and penetrating human beings, circumstances and events. v. Radetzky became, therefore, with the Sk 4a, he went on with this task.
What is, then, meant by SD affairs? was: to safeguard the back of the fighting army, consequently to secure the rear area by police supervision, but, in addition, to improvise the war occupation of the areas from the standpoint of police and administra tion, until the occupying power could organize a proper administration.
The fact that the Einsatzgruppen and their individual units had actually this task, follows without difficulty, from careful reading of those parts of the so-called reports of events that were omitted by the Prosecution in their document books. Accordingly, it was part of the tasks of the Einsatzgruppen, 1) to study the economic, social and political conditions of the country and to elucidate the structure of the state and the party machinery of the enemy from the archives and the files of the enemy; 2) to observe the state of mind and the attitude of the population and their readiness for collaboration with the occupying power, furthermore, to investigate the enemy propaganda activities and the activities of the resistance groups and partisans and to report about these points to the central authorities of the State; 3) to ward off and to fight partisans who were in well-organized units or acted individually. all these points of view and tasks in a clumsy way as an occupying power. The section concerning observation and report according to what I just said, was "SD matter", and the field of the defendant v. Radetzky's activities was here. With Einsatzkommando 4a he followed the combat troops, the 6th Army, in their advance into Russia, but not as a commander or participant in the so-called executions, but as an expert SD-affairs. His special task was the safeguarding of important documents and flies of administrative authorities and institutes, the compiling of reports concerning agriculture and industry, the food situation and the existing conditions in the self-administration of the communities. It would be absurd if one wanted to maintain that such an exceptional person as v. Radetzky, a man whose mother tongue was German and who at the same time was fully conversant with the Russian language and conditions, would not have been employed for these purposes, or that the German Army leadership would not have been interested in the economic conditions, the food conditions, and the conditions concerning administra tion in the occupied territories.
pert qualifications of the defendant v. Radetzky. After he had proved him worth also in practical administrative work, such as organizing of the food distribution for the population, he was detailed as early as July 1941 to the AOK 6 as liaison officer, namely as liaison officer for the Sk 4a to the Army and liaison officer of the Einsatzgruppe C to the Army Group. the defendant pursued. The Tribunal will surely be astonished to learn, among other things, that it was v. Radetzky, against whom such severe indictments are brought, who was mainly responsible for averting a famine from the town of Charkow which was only 12 kms behind the front lines. Furthermore, I hope it will be proven to the full satisfaction of the Tribunal that the defendant v. Radetzky never participated in the dreadful executions, and that he also never was deputy to the commander of the Kommande. The latter may already seem evident now.
Court No. II-A, Case No. IX.
if one considers that v. Radetzky never got any significant training and education as an officer of the police or even as an ordinary policeman; therefore, he was definitely not qualified in this respect.
The further employment of the Defendant v. Radetzky is along a straight line too, and as a fact it proves more than all the statements made by witnesses and in documents, what he was found to be qualified for, for what was suitable and for what he could not be used. Since the summer of 1942 he was a liaison officer to the 2nd German Army and to the 2nd Hungarian army. In 1943 he was a liaison officer to the 8th Hungarian army corps and to the 2nd German army. On account of his knowledge of languages and his vast and profound knowledge of the whole conditions in the Russian territory v. Radetzky was transferred to Amt VI of the Reich Main Security Office by the end of 1943; up to that time, as has to be stressed expressly, he had not belonged to Amt VI of the Reich Main Security Office out to Amt I. As will have to be proven, the defendant had tried already numerous times to get a release from the straight-jacket of his national emergency service and to be transferred to the combat troops of the Army. He did not succeed, though he succeeded in repeatedly getting long leaves, and he furthermore succeeded in being less esteened as an expert; ultimately he was released from the immediate service in the Reich Main Security Office and he was being employed for further tasks of an informative nature. Then he once again became a liaison officer, namely with the Russian volunteer army of General Wlassow, which was no longer to taken seriously. There he prevented further follies and he caused General Turkul to surrender with his staff to the approaching American troops.
legal way, was driven out of his Baltic country. Then, without his will, he passively drifted into the claws of National Socialism. His characterization will be completed by describing how he fought for the rescue of his companions who were endangered by the racial and other basic principles of Nazi idealogy, opposing these very principles and thus endangering his own safety, and how he consequently gained grateful friends. once more to the "theory of individual responsibility," which the prosecution developed in the Opening Statement: the activities of a Sonderkommando is sufficient a reason for the establishment of the criminal responsibility of a defendant, because each defendant had the authority to order executions or to prevent executions. But Defendant Radetzky never possessed such an authority. This could only be assumed if the defendant would have been the commander or deputy commander of Sonderkommando 4a at one time or another, which actually never was the case. It is common knowledge that in military affairs there is no such thing as an authority over one's superiors, but only an authority over subordinates. Of course, there is a limited possibility to offer resistance to orders from military superiors or to cause them to change or withdraw their orders, Everybody familiar with military affairs knows well that such possibility decreases rapidly in direct proportion to the grade in the military hierarchy on which such a controversy may occur. Whereas, for example, a general may well be at variance with orders from his superiors and may express his counter-proposals in a courteous and diplomatic manner and, if necessary, even plead illness in order to evade the execution of an unsavory order, this was completely Impossible for a man of Defendant Radetzky's military rank.
For him contradiction or opposition would have meant a certain danger to life and limb. Such considerations are, however, totally unnecessary in connection with Defendant v. Radetzky and there is no need to plead, perhaps, that the defendant incurred no criminal guilt because he could not be espected to oppose criminal orders given him. For Defendant v. Radetzky never received or carried out an order for execution nor did he ever assist in any way in the carrying out of such an order. This leaves a mere knowledge. I believe I am in a position to state that it is already an established principle of the American Military Tribunal that criminal responsibility cannot be based on a mere knowledge of crimes.
Accordingly, trusting the Tribunal's justice, I hope to invalidate the charge brought against the Defendant v. Radetzky.
THE PRESIDENT: Counsel for the defendant Graf. You may proceed,
DR. BELZER: (Attorney for the Defendant Graf) May it please the Tribunal, the outside appearance of this case is marked by lack of space. The dock is terribly crowded and the seats of the counsels for the defense have grown, so to speak, into the tables of the judges. To whatever estent I feel personally honored to be seated at the table of the judges, so to speak, I must all the same say that at least this one place could have been saved if the prosecution had chosen the men whom it wanted to bring before the Tribunal in connection with the Einsatzgruppen from the same point of view which it maintained in the indictment and the opening statement. The inclusion of the Defendant Matthias Graf into the indictment of case 9 is a serious mistake of the prosecution.