Jost was at least able to obtain the approval for his recall from Riga and his transfer from the SD (Security Service ) to the ministry for the East. (Affidavit Best as above) (Affidavit Wohlgemuth, Doc. Book Jost I V).
The discussion with Rosenberg, "which took place in November 1942, ran along the same lines. At the time Jost was no longer concerned with affairs regarding Jews. He had no reason whatsoever to commit himself again in the same matter. He nevertheless took the opportunity at his first meeting with his superior, to state his personal views once again without thought of personal gains. On this occasion the defendant again opposed the execution of the pertinent orders. He tried to induce Rosenberg to prevent further executions of Jews. (Affidavit Dr. Leibbrandt, Doc. Book Jost I, page 19).
This also proves again that the Prosecution's opinion of the defendant is erroneous and untenable.
A few days after the call on Himmler the defendant's recall was actually effected. Thus his activity in the East came to an end.
The consequences and the result of the defendant's activity. different than the way the Prosecution tried to present it, For 5 months Jost was chief of an Einsatzgruppe and commander of the Sipo (Security Police) and of the SD in the East. During this time not a single person was reported dead from the entire territory of the Einsatzgruppe. Reports from the territory of the Reich Commissariate show that 2 partisans and Communist activists were shot. Within the entire territory neither a Kommissar nor a Gipsy was shot and not a single Jew was shot only because he was a Jew.
his predecessor Stahlecker. A comparison of the two results alone makes the indictment against Jost appear untenable. took up has duties, more than 40,000 Jews were living in the countries of Lithuania, Latvia, and Esthonia; the same number of Jews were living when the defendant left his office as the report of events, submitted by the Prosecution, prove. Thus about 2600 Jews were at that time still living in Riga, 900 in Duenaburg, 300 in Libau, 4500 in Schaulen, 15 000 in Kaunas and 20 - 25 000 in Vilna. Had the defendant executed the Fuehrer and Heydrich orders, then no Jews would probably have been left at the time when he was recalled from his office.
The defendant's statement is also supported by the following fact: regarding the individual persons responsible for the persecutions of Jews in the Baltics and in White Ruthenia. (Doc. Book of the Prosecution III - A, doc. No. 3872, exh. 110, German page 17 - 20, English page 1012). that he had been given a few days in which to compile this list of names and that for this purpose various persons had been interrogated. The defendant Jost's name - who was the chief of the co-defendant Sandberger 5 months - does not appear in this document. That can only be ascribed to the fact that Sandberger could not link the name of the defendant Jost with persecutions of Jews in the Baltics and in White Ruthenia and was therefore unable to list it. There is no logical reason why Sandberger, who listed the names of a greater number of co-defendants like Ohlendorf, Strauch, Nosske, Rasch, should not have mentioned the defendant Jost, if according to his opinion and his knowledge, the latter had been responsible for the persecution of Jews in the territory in question.
the executions of the persecutions of Jews have been submitted while Jost held office. Furthermore Faulhaber's affidavit proved (Doc. Book Jost I, page 21/22) that at the time when Jost was in Riga - that is at the end of August 1942 - there were still about 25 000 Jews in Vilna alone. Various reports of events or situation reports also show, that the number of Jews in the area in question did not vary during the period from March to September 1942. Jost's responsibility for his area, therefore, is this, that he has not destroyed life but has saved the lives of many thousands on account of his attitude dictated by a strict sense of justice, his decent moral principles and his conscience. On no account can the defendant, therefore, be charged with being guilty either in the eyes of the law or even morally. In view of all those circumstances it would mean basing one's judgment on formal reasoning if one intended to charge the defendant with a crime against humanity or with a war crime. The defendant was not, as the Prosecution declared in its opening statement, "presumptious enough to decide the fate of human beings, their death being the intended manifestation of his power and of his contempt for them with which he was filled". The defendant did not exercise his power for carrying out evil, but good intentions. He did not allow himself to be guided by feelings of contempt, as is corroborated by the statements of all witnesses who made affidavits. Even if one assumed that one or the other incident had happened, which might justify the raising of the question of guilt, one really could not - if one were guided by reasonable considerations - make him responsible for them. One could have to take into account his proved fundamental attitude and the extent of the area subordinated to him, the bad transport and communication conditions in this area, the unclear situation with regard, to orders which was apt to load to action being taken by all kinds of departments, and all the other circumstances, which had already been mentioned previously.
Incidentally it may also be mentioned - in order to round off picture of the defendant's personality - that he had explained his views on the Jewish question to members of his headquarters on the occasion of a rollcall and had pointed out that even the person, the life and the property of a Jew enjoyed the protection of the law. Furthermore, one of the first steps he took was to express his objection to Heydrich with regard to a decree concerning the treatment by the Police of Latvians, Estonians and Lithuanians who were employed in the Reich, and to effect the cancellation of this decree despite the fact that this decree did not even concern the sphere of his authority. in Riga as on 1 May 1942 and recommended the same measure to be taken in Estonia as well. These incidents further emphasize the general attitude of the defendant towards members of other races and nations and even towards political opponents. to produce the witnesses Nyhoogen and Landgraf, who had the most extensive insight into these events. Nyhoogen is a prisoner-of-war in Russia, whilst Landgraf is missing.
VII. The consequences of the defendant's course of action affecting him personally. talks with HEYDRICH and HIMMLER did not, of course, remain without repercussions so far as he himself was concerned. The defendant now encountered many difficulties in his path. He had given up his past, without being immediately entrusted with other tasks. He stayed with his new office in the Ministry for the East without occupation for 13 months. He was in fact being passed over. His temporary assignment as chief of liaison with an army group, that is to quite an inferior post, accentuates the impossible situation into which the defendant had got himself. (Affidavits HILDEBRANDT, and REST) prevented JOST's employment even outside the SS and the Police. Although BERGER, Chief of the SS Main Office, tried to provide a post for the defendant in the public or civil sector, he was unsuccessful, as HIMMLER did not agree to this. (Affidavits BERGER and HILDEBRANDT) HIMMLER was not satisfied with having JOST "shelved"; on the contrary he ordered him to be drafted into the Waffen SS as a corporal - a truly degrading procedure. Accordingly JOST was then to be assigned immediately,to a front unit, without previous training and medical examination and inspite of his impaired state of health of which HIMMLER know. Even the General of the Waffen SS, BERGER, wasunable to do anything about by pointing out to HIMMLER that under these circumstances JOST's conscription would be equal to a "Himmelfahrtskommando" (suicide commando). As has been stated by BERGER, HIMMLER used to take such measures whenever any of his subordinates acted in any way contrary to his orders. (Affidavit BERGER). The final cause for HIMMLER's action end the renewed order given to BERGER to have JOST drafted immediately, may have been the defendant's refusal - of which HIMMLER had gained knowledge through HILDESBRANDT to be re-assigned to the Security Police. At that time HIMMLER had used the grossest invectives against JOST, when talking to HILDEBRANDT, and had declared "that now he would certainly bring him (JOST) to his senses". (Affidavit HILDEBRANDT). JOST's conscription was ordered to list until the end of the war.
It was made known as a warning to higher SS and police Headquarters by means of a circular - a heavy blow to the defendant who was now finally "done for", a victim of his uprightness. He had been deprived of his reputation and his honor. These facts have been corroborated by the witnesses THOMASHAUSEN, NYHOFGEN and EVERWIEN. (Affidavits THOMASHAUSEN, NYHOFGEN and EVERWIEN). with not being promoted and not receiving any decorations during the whole the war and not even during his assignment to the Eastern front. Eventually one went so far as to link up the defendant with the happenings on 20 July 1944. Probably at the instigation of the Chief of the Office IV of the Reich Security Main Office, MUELLER, with whom the defendant had been at variance right from the beginning, he was searched for and suspected of having concealed the Oberourgermeister Dr. GOERDELER in his apartment. (Affidavit HEINRICH) (Transcript dated 14 October 1947, cross examination OHLENDORF). the defendant suffered through his upright and honest conduct. The defendant could have saved himself all that, of he had complied with orders. He chose to take the difficult path, which his attitude and his conscience dictated to him. VIII. Count III of the Indictment. belonged to a criminal organization, i.e. Office VI of the Reich Security Main Office and the SS. In the IMT-Verdict the SD and consequently Office VI was declared a criminal organization, because it was maintained that Office VI was a counter-intelligence organization of the Gestapo.
Actually the Prosection does not contend that the defendant had himself committed a criminal act during the period from September 1939 to August 1941, when he belonged to the Office VI; the prosecutor too pointed out during the defendant's examination, that membership of Office VI was by no means an important point. The prosecutor declared. when questioned by the Presiding Judge as to whether he accused the defendant of a crime in connection with his activity at the Reich Security Main Office: "No, Your Honor, that is only an irrelevant point".
In this connection it must be pointed out that:
1) the Office VI was no counter intelligence organization of the Gestapo, but an intelligence service for the procurement of political and economic news from abroad,
2) the Office VI accordingly had no professional connection whatsoever with the Gestapo and had nothing to do with the facts with which the Gestapo was charged; and,
3) the defendant had not gained any knowledge of these facts during his term of office from 1939 until 1941. ments of the defendant in the witness box. tasks of the Office VI and the fact that this Office VI was no counter intelligence organization of the Gestapo, are confirmed by the following affidavits: VOLLHEIM, BEST, WANECK, FINKE, DAUFEIDT and OHLENDORF. libitum, show clearly the tasks of Office VI and the non-existence of any connection with Office IV. Proof has therefore been furnished that the tasks of this office were legally founded. Furthermore the prosecution and annihilation of the Jews, atrocities and murder in concentration camps, excesses in the administration of the occupied territories, the carrying into effect of the slave labor program, and the illtreatment and murder of prisoner-of-war, with which the IMT Verdict charged the Gestapo, happened at a time, which precluded the possibility of JOST's having gained any knowledge thereof while ha held a position with the Office VI.
who had either participated in the perpetration of a crime or had not severed his connection with the organization after having gained knowledge thereof. But at the same time the verdict says (page 104) that the members of the Security Police and the SD had no opportunity during the war, to exert any influence whatever on the type of their activity, In spite of this being established in the verdict, it remains for the Tribunal to examine what the defendant undertook to quit the service of the SD and what was the result of his endeavors. The defendant, in his evidence, has given a detailed description of his relationship with the Chief of the Security Police, HEYDRICH, and the Chief of Office IV, MUELLER; of how he had at first tried to protect Office VI from MUELLER's lust for power and to keep it away from tasks, which had nothing in common with its purpose and structure, and which he furthermore considered dangerous; and last but not least he has described how he endeavored to leave the SD when he considered it impossible for material, personal and political reasons to continue to cooperate with HEYDRICH and MUELLER respectively. These declarations by the defendant are absolutely confirmed by the following affidavits: The following list I shall not read into the record but would like to ask you to take note of it. relations of the defendant to his then chiefs HEYDRICH and MUELLER, of his conception of the tasks assigned to him, and above all of his attempts to leave the SD and of the fact that he actually left the SD on account of his attitude and his endeavors approximately in August 1941. Though it is true that no formal discharge took place, it is decisive that, through his subsequent transfer to the Ministry for the East in the Reich Security Main Office, he no longer performed any functions.
There, namely in the Ministry for the Fast, no use was made of JOST's services, and without any steps on his part and against his express wish, he was employed in Riga. employment for 7 months was by no means pleased with this new task, as might have been expect d after his long period of inactivity. Nor did he reach to HEYDRICH's obvious attempt at reconciliation but immediately asked HEYDRICH's again to reverse this assignment, and in any case to give it a time-limit. Thereby he stressed anew that under no circumstances was he willing to return to the sphere of activity of the Security Police and the SD. When HEYDRICH did not keep his promise of an early recall, he Went to see him again in Berlin on 22 May 1942, in order to effect his recall. HEYDRICH gave his promise, together with the unambiguous threat that he would have him drafted into the Waffen-SS after his recall.
Even after HEYDRICH's death, JOST's endeavors were continuously directed towards bringing about his recall, and after having tried many times in vain, he succeeded in seeing HIMMLER during the last part of August. The defendant related this discussion with HIMMLER in detail.
result of this discussion. In this case he had again succeeded in leaving this kind of work, even though it was not possible for him to leave the organization altogether during the war. Only after 13 months of inactivity was the defendant given an unimportant position as liaison officer of the ministry of the East with the army group at Nikolayev. When the position of commander of the Security Police was offered to him again in February 1944, he resolutely refused it, since he did not want to be subordinated again to HIMMLER's authority. JOST's refusal, which was made without considering his own person, was made known to HIMMLER and led to JOST's final drafting into the Waffen-SS. in 1941 as chief of office VI and in 1942 as chief of Einsatzgruppe A and Commander Ostland as also in 1944, in order to be able to leave the Security Police and SD, namely HIMMLER's field of activity. he maintained this attitude without regard for his own advantages. In practice it was impossible for him to achieve any more. He has proved that he tried everything that could be asked of him, and thereby succeeded in not performing any functions, at least after fall 1942, within the scope of the Security Police, SD, or SS, with the exception of his being drafted into the Waffen-SS. Taking this into consideration, he cannot be convicted for membership in a criminal organization. In this connection I wish to refer to the statement made by the British Chief Prosecutor in the verdict of the International Military Tribunal, namely that there was one way of leaving, namely via the forces. By his attitude towards HEYDRICH and HIMMLER' JOST provoked this course of events and accepted it.
Through his assignment to the Einsatzgruppe, JOST's membership to Office VI Reich Security I Main Office would have stopped even if he had not, de facto, left before. As Chief of the Office VI Reich Security Main Office, JOST committed no crimes. Since his activity at that time was lawful, he could not of his own accord have gained any knowledge of the criminal nature of Office VI, as was ascertained by the International Military Tribunal. Einsatzgruppen and Einsatzkommandos were no authorities, agencies or parts of the organization of the Chief of the Security Police and the SD even less so of the Offices III, VI and VII of the SD, which were declared criminal. Einsatzgruppen and Einsatzkommandos were on the contrary militant and mobile units set up ad hoc and attached to army groups or armies for police purposes. This is not changed even by the fact that the Chief of the Security Police and the SD could give pertinent directives to the Einsatzgruppen and Einsatzkommandos. The Einsatzgruppen and-kommandos did not thereby become agencies of the Chief of the Security Police and the SD. In this case he acted as the professional agent who was at the disposal of the commander in chief of the army group and the armed forces respectively. Therefore the knowledge of the events in the East which JOST acquired in 1942, i.e. many months after his withdrawal from Office VI of Reich Security Main Office, cannot be cited as proof of his knowledge of the criminal nature of Office VI at the time when he was still office chief. This knowledge would need to be immediately connected with his activity in Office VI. However in this case the link between time and subject matter is missing. It is therefore a fact that at the time of his activity in Office VI Reich Security Rain Office, JOST was not conscious at all of any wrongdoing. direct examination. By his activity in Office VI of the Reich Security Main Office, he automatically became a member of the SS-formation Security Service.
The peculiarity of this formation was that it did not possess an organization of its own. There were neither Stuerme nor Standarten within this special SS formation Security Service. Therefore no SS service wasperformed in it either. Since this special formation existed only theoretically and actually made no appearance, it lacked the prerequisites for criminal activity right from the beginning, and no member of this formation could have been conscious of belonging to a criminal organization. of my colleague, Dr. Gawlik, for the defendants Seibert and Naumann, according to which one can judge Jost's membership in the SS; Jost's is not charged with involuntary membership in the Waffen-SS by the Prosecution. I am now coming to Point IX. commander of the Security Police and the Security Service Ostland, JOSTfor the first time received full knowledge of the Fuehrer order. It became clear to him that he was faced with a binding order given by his highest superior, the Fuehrer, and he also became aware what actions were demanded of him on the basis of this Fuehrer order. disposition, his attitude was one of opposition to this order right from the beginning. Reich, especially with regard to the Russian peril, Judaism as the pillars of Bolshevism etc. did not leave his attitude uninfluenced. not the training and exercise with regard to the duty, character and morale of an officer of the regular army, he wasyet well acquainted with such conceptions as duty, obedience, loyalty and treason.
and necessities surrounding him; and with his personal attitude. Undoubtedly he was confronted with a conflict of duties. The defendant tried to free himself from this conflict of duties by immediately and repeatedly attempting to sever all personal connection with the execution of the Fuehrer order either by having his superiors cancel the further execution of the Fuehrer-Order on the basis of his remonstrances or by being released from this order entirely. He continued to make every effort in order to achieve this -- as has been proved and explained already in detail -- without having regard for his person or for the fact that he was thereby risking his life. action, he again, at the risk of his life, undertook to delay the further execution of the Fuehrer-Order and later the HEYDRICH-Order. However, the defendant could not make up his mind flatly to oppose the order. However, the considerations which were especially impressed upon him -- as a soldier -- namely that in his position as a superior he was not to give a bad example, that disobedience on his part would undermine the discipline of the forces, that by this he would become guilty of aiding the enemy and in fact would become a traitor to his people kept him from taking such an action. At the same time the defendant was of course aware of the fact that he would speedily lose his life if he went beyond that which he had already done. training as jurist and his three years' practice as an attorney, the defendant -- in the position in which he found himself -- took the course which, to a certain extent, made him appear dishonrable in the eyes of his superiors and also his comrades, as is proved by his degrading enlistment into the Waffen SS with the rank of a sergeant.
On the basis of his character the defendant valued decision according to his conscience, more than the execution of a binding order which, it is true, he considered legal yet which he himself felt unable to carry out.
THE PRESIDENT: The Tribunal will be in recess.
(Recess.)
THE MARSHAL: The Tribunal is again in session.
DR. SCHWARZ: It must be admitted that the defendant for his part did everything that could reasonably have been exported of him. It is impossible to maintain that the defendant should have gone further and should have flatly refused an order or become what would have to be considered a traitor to his people. Yet the defendant would in fact have betrayed his people -- a crime punished by the death sentence in all civilized states -- if by flatly disobeying orders he had undermined the discipline of the forces and thus aided the enemy. author of the orders in question which were given by the Fuehrer and by HEYDRICH; that he never issued orders of his own on the basis of these orders; that these fundamental orders had existed and had already been carried out for a long time past and that under these circumstances the defendant had no possibility of making a decision of his own free will. duties and the unexpectability ......., the defendant must also be acquitted of guilt and punishment with regard to the subjective side of the case. or participation in acts -- which according to the explanations given under paragraph IV to VI is out of the question -- the defendant should also be acquitted of guilt and punishment on the basis of assumed selfdefense, of an assumed state of emergency, a state of emergency arising from an order received and the conception of a general state of necessity, as was applied particularly in the Flick sentence. be acquitted of guilt and punishment.
THE PRESIDENT: Dr. Ratz.
DR. RATZ: Dr. Ratz for the defendant Von Radetzky. make a brief remark. On 7 February I handed in a trial brief which has already been translated and which will be submitted to the Tribunal within the next few days. This trial brief is an important completion of my final plea. Your Honors -
THE PRESIDENT: Dr. Ratz, will you please follow up that trial brief and see that it does get to us quickly. Don't just assume that mechanically it will finally reach us. Keep an active interest in it yourself.
DR. RITZ: Yes, your Honor.
Your Honors: shootings which they offer in the indictment is still not sufficient wholly and completely to life the veil and clear away the fog surrounding the question of the criminal guilt of each of the defendants sitting here, in spite of all the operation reports with dates, figures and names. In its opening speech of 29 September 1947 the prosecution described the *** doctrine of the Master Race and inferior races", apparently with the intention of demonstrating how such a thing could be possible, why such acts are to be attributed to the defendants, and where the roots of their guilt are to be found. But it would mean going only half way if, in this trial of all trials, one did not investigate the character of each individual defendant and if one did not utilize every means of cognition to gain a true picture of the nature and the character of each one of them. This applies particularly if the name of a defendant, like that of the defendant v. RADETZKY, is nowhere to be found in any report of events concerning shootings. There is only a hint there for the correct judgment of what he did and and what he did not do and of what he submitted to the court; his personality.
The defendant v. RADETZKY is a Baltic German. He comes from an ethnic group which until 1939 had nothing at all be do with the Third Reich, either spiritually or culturally, and which for centuries has been a closed community in customs, morals and manner of thinking, the individual members of which have been and still are today tru representatives of their Baltic homeland with regard to what they think, feel and want. ments of the defendant v. RADETZKY in the witness stand, concerning his origin and the influences in his old homeland which had a decisive part in building his character; it is therefore, probably superfluous for me to go once more into the conditions in the Baltic countries which prevailed there until the resettlement of the defendant. I would only like to summarize once more the reasons why particularly in the case of the defendant v. RADETZKY one cannot simply assume that on the basis of his development he unconditionally endorsed the National Socialist theory and/or its result. On the contrary, a transition into the ideas of National Socialism was impossible for the following reasons:
1.) From time immemorial, the Baltic Germans nave been very part of the Protestant civilization in the North;
2.) The Prussian principles of subordination, of the obedience to civilian life in its entirety, was foreign to the Balts;
3.) The entire history of the Balts is a history of their autonomy in school, church, justice and culture; the policy of regulating all walks of life from "above" was
4.) The Balt's country of origin is a homeland for diversified principle by which peoples my live together in peace; The defendant v. RADETZKY was forced to go to Germany with his ethnic group at that time.
It would be incorrect and unjust to brand this defendant with a stamp bearing the National Socialist view of life and to try to maintain that he endorsed the Nazi ideology of the master race. For this reason he is supposed to have been an arbitrary instrument of a systematic program of genicide.
In his own homeland, v. RADETZKY had experienced the cost of belonging to a national minority. In personal danger, in personal suffering and personal injury, Besides the Germans there were other minorities in Latvia who had the same needs and troubles the Germans had. These minorities were of mutual assistance to each other, and on the witness stand v. RADETZKY has told us that he owed the upward trend of his firm in those years of special affliction from 1936 on, to close business cooperation with Jewish firms.
From 1936 on! Can one seriously claim or even believe that from 1939 on, or at least from 1941 on, v. RADETZKY in gratitude for his compulsory resettlement to Germany or in gratitude for his enforced drafting into the Sonderkommando subscribed to the doctrine of the existence of one higher and many inferior races, and that the most inferior races are the Jews and the gypsies?
Or should we rather not believe in the steadfastness of his conviction that only mutual tolerance and regard of peoples in ethnic groups can be the prerequisite of the common good, thus the national tolerance which is as deep rooted in him as a Balt as the sense of freedom is in the Swiss.
Your Honors! A straight path leads from the general character via the subjective conviction to guilt or innocence. Therefore, let us consider the character of the young RADETZKY even more closely and ask: In the period before the resettlement of the Baltic Germans to Germany, when his will was still free and he could still move unhampered, were there not perhaps traces of such traits or tendencies in his nature which pointed like the needle of a magnet to events which later occurred in the Sk4a? Did he have political interests, or what sort of interests or motives did he have? Did he have a bent for public activity, and along what lines?
Young RADETZKY's inclination were in for different fields from those of politics: he had to rebuild an economic existence for himself and his old mother and wanted to regain his lost property as a businessman. To be sure, he also had a deeprooted social sense and took over the direction of an office for vocational guildance and assitance with the German People's Community, the organization of the German minority of the country, recognized by state and international law; he founded homes for the families of white-collar workers and officials and a company-aid fund, and no one can claim that as a German he would not have stayed within the limits of legal and normal activity of his patriotism. autumn of 1939 came the resettlement of the Baltic Germans from their old homeland by the Baltic Sea to the region of Posnan. It was not the sort of emigration which takes place when the homeland has become top small for its population and now on its own initiative it seeks a new homeland in the hope of bettering its personal condition: it was an emigration determined upon by the government over the heads of those concerned. In reality it was a mass flight before the advancing Bolshevist armies which were on the verge of occupying the Baltic countries. In all reason one cannot speak of a voluntary impulse. It was nothing short of a tragedy involving 60,000 people who had to leave their homeland, their dwellings and houses, and at best could wretchedly take some furniture and a few cattle with them. to hold v. RADETZKY responsible for what happened to the former inhabitants in the new area of settlement. The Resettlement Center was solely responsible for the emigration of the settlers.
v. RADETZKY, a businessman and economic expert, took part in this portenteous transferring of his compatriots from their homeland as an economic counsel both in the appraisal of the property left behind in the homeland and in their economic care at their destination in Poznan.