1 And General Rendulic, testifying in his own behalf in that same case, drew exactly the same parallel between the killing of hostages and "air attacks" and the atomic bomb2 on the other. It is the doctrine that total war means total lawlessness. The doctrine is logically indefensible and is based upon wanton indifference to facts and the order in which certain events took place. ways tends to produce bigger guns and faster airplanes and more lethal explosives. Ultimately, the responsibility for these developments lies not with those who finish a war but with those who start it. But the question is, in any event, quite irrelevant in terms of the traditional laws of war, the laws of war have never attempted to prohibit such developments. Neither in the Hague Conventions nor in the general principles and usages of warfare have any limits ever been laid down in terms of size, speed, or destructive capacity. ordinary bombs; under the laws of war, the question is not as to the character or explosive capacity of the bomb, but how it is used. It is sad but true that the destruction of an enemy's power of resistance by air attacks against urban industrial centers has become an accepted part of modern warfare. We are constrained again to note that the responsibility for this development does not lie with any of the powers under whose authority this proceeding is conducted. The first cities to L. Final plea for List, p. 204, in United States v. List, Case No. 7 2. Case No. 7, mimeographed transcript p. 5291-92 undergo the terror of modern air raids suffered under German bombs, and Warsaw, Rotterdam, and London were badly mauled while there was still hardly a scratch on any city in Germany.
Nor can there be any suggestion that the major criminal ventures of the Third Reich -- the slave labor program, the extermination of the Jews, or any other crime of similar magnitude--were planned or committed in retaliation for Allied bombing. All of these programs were well under way and on the high road to consummation long before Allied bombing had had any appreciable effect on life in Germany.
But there are still more fundamental considerations. We may overlook for purposes of argument the question of who started all this bombing, because it is clear that in this field there is by now no question of unilateral repudiation of the laws of war. But, just as the laws of war develop by common observance, so they are not changed merely because one country breaches them, no matter how savagely and consistently. No parallel exists in modern warfare to the Einsatzgruppen and their activities. The defendant Ohlendorf justifies them on the ground that it could be expected that the Jews and party and government officials would oppose the German attack with special vigor. Even the dullest mind can imagine what would have happened in Germany had similar principles been applied during the Allied advance and occupation. that Jews were especially hostile to the Wehrmacht involves a perversion of fact and a reversal of logic so extraordinary that it would be amusing were it not so seriously advanced. After the Nazis had reviled and degraded and threatened the Jews for twenty years, it certainly might have been expected that the Russian Jews would have feared the coming of the Germans. And so now this very circumstance is put forth as a justification for slaughtering them to the last man, woman and child. We could ask for no more exact a parallel to the burglar who shoots the houseowner in self defense.
On this whole question we wish to make one final observation. The Einsatz massacres of Jews have been defended here as if it were sincerely believed that the killing of Jews was a military necessity in order to achieve military victory over the Russian Army.
But in point of fact this argument is not sincerely made. Whatever anyone may think about atom bombs or ordinary bombs, they have not been dropping here in Germany since the capitulation. But will any defendant dare to suggest to us that the execution of the Jews in Russia would have stopped if Russian military resistance had collapsed? On the contrary, the evidence is compelling that a German victory would have enormously widened the scope of operations of the Einsatzgruppen and the holocaust would have been even more staggering. Ohlendorf's own testimony makes this clear beyond a doubt. When questioned as to the necessity for the killing of Jewish children by the Einsatzgruppen he replied:1 "I believe that it is very simple to explain if one danger no smaller than that of the parents."
In short, the crimes of the Einsatzgruppen were not, fundamentally, military crimes at all. They were not committed in order to make military victory possible. On the contrary, military victory was sought in order to put the victors in a position where these crimes could be committed. These crimes were a war objective, not a military means. only because they deal with questions which are fundamental to the integrity of this proceeding, but also because they are fundamental to the very existence of the laws of war and international penal law. Not only is this 1. Mimeographed transcript p. 662 Tribunal dedicated to the enforcement of international law; it owes its very existence to international law and agreements.
Though constituted by the United States, its jurisdiction is established and defined by international agreements and declarations. One of the things for which we fought was to put an end to international anarchy, and the need for establishing international law on a practical and enforcible footing has never been clearer than it is today. ing with us on questions of international law, and what they did was not only a crime against humanity under international penal law; it was a heinous crime under all civilized legal systems. It is for this Tribunal, not for the prosecution, to determine what punishment the deep guilt of these defendants merits. But it is within the legitimate prerogatives of the prosecution to state the nature of the crime. The crime involved in this case is murder -- deliberate, premeditated murder; murder on a gigantic scale; murder committed for the worst of all possible motives. Some of these defendants still believe that what they did was not murder because the victims were Jews. No system of domestic or international penal law could possibly survive under which the determination of guilt for murder is governed by the political or religious creed or racial origin of the victim. It is vitally important to the peace of the world that no such doctrine gain currency among nations. We earnestly suggest to the court that true judicial, wisdom in this case counsels firmness rather than leniency to those adjudged guilty of this terrible crime against humanity.
THE PRESIDENT: Dr. Hoffmann:
DR. HOFFMANN(Attorney for the Defendant Nosske): I have a request, Your Honor, that the defense will be permitted a brief recess in order to determine how and who will reply to the prosecution's statement.
THE PRESIDENT: Just a moment please. We could combine the time required for defense counsel deliberations with the regular morning recess.
In that way both ends will be served. The Tribunal will therefore be in recess until eleven o'clock this morning.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. ASCHENAUER: Your Honor, the defense, apart from my colleagues Dr. Hoffmann and Dr. Gawlik, are of the opinion that General Taylor's speech did not bring anything new. With the exception of Dr. Gawlik and Dr. Hoffmann, the defense waives the right of an oral reply but reserves the right to reply to the Prosecution's closing briefs.
THE PRESIDENT: Well, Dr. Aschenauer, I thought that defense counsel had already submitted closing trial briefs. You don't mean that you are going to submit still another trial brief, do you?
DR. ASCHENAUER: Your Honor, a number of colleagues have not yet received the closing brief of the prosecution. General Taylor has emphasized the fact that there are a number which are yet to be submitted to the defense. Therefore, I think it would be a good thing if the Prosecution was told, how much time they will be given to submit these closing briefs, and that the colleagues concerned who have not yet received these closing briefs should also have a deadline up to when they can reply to these closing briefs.
THE PRESIDENT: Ordinarily the function of today should terminate definitively all proceedings in this case, but we will allow still a short further time in connection with these trial briefs, but we will now specify that one week from today will be the absolute deadline on the receipt of any type of document or evidence from either side. What ever arrangements must be made with regard to the mechanics of producing these trial briefs will need to be taken care of immediately, and we urgently request counsel on both sides to cooperate so that the Tribunal will have whatever is outstanding no later than within the week from today. briefs, the Prosecution trial briefs will have to be submitted first and we assume that prosecution will have those briefs ready, if, in fact, they are not all ready now.
DR. ASCHENAUER: Thank you.
THE PRESIDENT: Yes, Now we understand that Dr. Gawlik and Dr. Hoffmann would like to make some comment on the presentation of the prosecution this morning.
DR. HOFFMANN: ATTORNEY Hoffmann for the defendant Nosske. fendants who have declared from the very beginning that they objected to the Fuehrer Order and did not carry it out.
General Taylor in his speech put all these defendants in one group, and he stated that, if these defendants were punished under Count I, for carrying out the Fuehrer Order, then they had to be punished under Count II of the indictment because of their activity in the Security Police in Russia, and their shooting of partisans and hostages. conducted this trial as one in which the Fuehrer Order was the main count. Concerning the question whether the shooting hostages and partisans or was not a legal act was not mentioned by the prosecution in this trial. I remind Your Honors that this particular point, the question of the shooting of hostages and partisans was one of the cardinal points in the generals' trial, which has been concluded just now, and where this question was discussed for six or seven months. If the prosecution puts these points into the foreground now concerning a few defendants, then in my opinion a number of details are not mentioned, and especailly those points which are regarded as illegal by the prosecution. These cases were not examined and especially, and that is the main thing, they did not point out to the defense that these facts had become the main points against some of the defendants. not been examined sufficiently by the prosecution and not enought documents have been submitted concerning this subject as to now accuse them because of their police activities.
THE PRESIDENT: Well, Dr. Hoffmann, war crimes are part of the case. You admit that, don't you?
DR. HOFFMANN: Yes.
THE PRESIDENT: Now the prosecution presented many documents and in those documents references are made to various types of executions. Many of the defendants explain that executions in which they participated were in accordance with the laws of war, and where that has been established and proved, then natureally the charge of the prosecution of the particular instance cannot be sustained. If an execution is proved to have taken place in accordance with the laws of war, then there is no crime. So we fail to see, where the prosecution summation advanced anything, which you did not have the opportunity to reply to in the presentation of the defense, and if it is your conclusion that the prosecution has not proved these particular crimes, well then, naturally you haven't in any way been offended.
DR. HOFFMANN: Your Honor, then in agreement with this point of view of Your Honor, I would like you to rule that in all the individual cases where it was not explicitly clear whether there was a violation of the laws of war or not, the defense as far as I myself am concerned, is of the opinion that the Prosecution did not prove that, apart from the Fuehrer Order, any laws of war have been violated.
THE PRESIDENT: Well, the Tribunal certainly is not going to make any ruling of that character. The indictment has been filed, the prosecution has presented its case and the defense has presented its case completely. The issues are now before the Tribunal for eventual and definitive decision. Closing arguments are helpful and interesting but are not evidence.
DR. GAWLIK: Dr. Gawlik for the defendants Naumann and Seibert. however, did not add that two judges of the Supreme Court, the Judges Murphy and Ruthledge, objected to this decision. They objected to this decision with very strong words, I am not in the position to quote verbatim at the moment, but there is one sentence which goes as follows:
"Wherever the American flag is waving the principles of American law must be adhered to" and these principles of Americal law in this particular case, the Yamashita case, it was said, had not been adhered to, and these two judges advised number of reasons, I think, as far as I remember there were five or six reasons, why these two judges of the Supreme Court, Murphy and Ruthledge, objected. fendants. He gave as an example the cook in the kitchen of a boat. Far be it from me to compare these defendants to cooks, but I want to take up his paralled, in order to deal with the basis of the legal thoughts concerned her. The chief prosecutor did not add that according to a decision of the Supreme Count this cook cannot be punished if he acted in execution of the orders of the chief. In this decision it is mentioned explicitly that on a boat it is only the captain who has the power of command and that his crew has to comply even with illegal orders. When taking up this particular example of the boat, then in this case, in my client's ease, it is Hitler who is the captain. Deputy captain is Himmler and the vice-deputy captain is Heydrich, and those people were the only ones responsible, and not the defendants who are my clients. courts. I am very much surprised that the prosecution, in order to prove that higher order does not exclude punishment, of all things cited the opinion of a German law court. I conclude from this and any decisions made by an American or British law courts before the Second World War are not mentioned and can not be mentioned. The prosecution always held the opinion that in this procedure the German legal principles are to be disregarded because, according to these laws the defendants could not be punished, because one of the German laws which was valid at that times was the Fuehrer Order which, and I am now referring to the statements of Professor Jareis, is a law which was then in force.
Either you apply German law or international law, but you cannot apply international law once and then again German law just as the case may be. IV the defendant cannot refer to an order by his government or his superiors. I draw the attention of the High Tribunal to the face that the chief of state is not mentioned here. In this decree it is only government or superior Government and chief of state are entirely different matters and different terms according to international law. Therefore, if we invert this decision then it follows that a subordinate can refer to an order of the chief of state.
which mitigating circumstances would be justified. I am not in agreement with these three prerequisites but I want to draw your attention to one of them. The chief prosecutor spoke about the circumstances or positions, which might have put the defendants in the position to resists, but the chief prosecutor could not give an answer and could not made any statements as to whether the defendants I am representing here actually were able to resist and what they could have done in their positions. Tribunal was to put an end to international anarchy. I agree with this statement of the chief prosecutor as far as anarchy should be done away with, but anarchy cannot be eliminated by building up a huge building, but if you want to do away with anarchy you have to start with the root, and the root for this procedure is the superior order which excludes the punishability.
THE PRESIDENT: Dr. Gawlik, what you have presented is entirely in the nature of argument. You have already spoken to the issues, and the prosecution has presented its summation. Now you have replied to the prosecution's summation with argument and not with anything dis None the less, we can't help but call attention to your statement about the Yamashita case.
Has it ever come to your attention that in a European court that there has been less than unanimity in a court deciding upon a certain issue? Has a German court or a French court or a British court or any other court in Europe ever endered a decision in which all the judges did not agree? Is it possible to have a decision without unanimity, is that Possible?
DR. GAWLIK: No, not at all, Your Honor.
THE PRESIDENT: Well, perhaps the question wasn't put very clearly. The majority of a court rules, that is true, is it not?
DR. GAWLIK: Yes
THE PRESIDENT: That is true in Europe?
DR. GAWLIK: Yes.
THE PRESIDENT: It is true all over the world?
DR. GAWLIK: Yes.
THE PRESIDENT: Why should it be any less true in the Yamashita case? You were quoting from the minority, not the majority opinion.
DR. GAWLIK: Yes.
THE PRESIDENT: And you seem to take great objection and you felt it rather sensitively that perhaps the defendants were referred to as cooks. I think you will agree with me that a cook is a very important individual?
DR. GAWLIK: I agree.
THE PRESIDENT: The human race could not exist without cooks, could we?
DR. GAWLIK: I quite agree, Your Honor.
THE PRESIDENT: Yes, Now you say that only the captain of a ship is responsible; Hitler was the captain of the ship?
DR. GAWLIK: Yes.
THE PRESIDENT: Well, if Hitler was the captain, what were Himmler and Heydrich, cooks?
DR. GAWLIK: Not at all, Your Honor.
THE PRESIDENT: What were they?
DR. GAWLIK: I stated, this clearly, they were the deputy captains, if you want to choose this comparison.
THE PRESIDENT: Would you say going right down the line that the defendants were deputy captains? Were are you going to stop with the deputy captains? Where are you going to stop with the deputy captains? How about Goering? Was he a deputy captain?
DR. GAWLIK: One could call him that, yes.
THE PRESIDENT: Ribbentrop, was he a deputy captain?
DR. GAWLIK: Well, Ribbentrop has nothing to do with this particular case, Your Honor.
THE PRESIDENT: Neither has Himmler nor Heydrich. Do Himmler and Heydrich have anything to do with this case?
DR. GAWLIK: Certainly, yes, very much.
THE PRESIDENT: Does Yamashita have anything to do with this case?
DR. GAWLIK: No, it has nothing to do with this case.
THE PRESIDENT: You brought it in though, didn't you?
DR. GAWLIK: I only cited this case to the Tribunal in order to point out that there a disagreeing opinion. I consider it my duty as a defense counsel to point out that the principles of international law which are laid down in the decision of the Yamashita case are dubious, especially as two judges, two well known judges, the Judges Murphy and Ruthledge, were of another opinion.
THE PRESIDENT: Very well, Dr. Gawlik, we understand your point of view.
DR. GAWLIK: I regarded this as my duty, Your Honor, to remind the Tribunal of the different opinion of two judges in the Yamashita case.
THE PRESIDENT: Very well, your remarks will be a part of the record.
Does any other defense counsel intend to comment at this time?
(No response).
THE PRESIDENT: The procedure calls for final statements from the individual defendants. We are informed by the translation section that all the statements which were presented have not yet been translated, but we have every reason to believe that they will be translated before the court reconvenes this afternoon so that, therefore, in order to avoid any pause in the proceedings once we get started with the defendants final statements, the Tribunal will now recess until 1:45.
( A recess was taken until 1345 hours.)
(The hearing reconvened at 1345 hours, 13 February 1948)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal will now hear the final statements of the individual defendants. The page will operate the movable microphone so that each defendant will have an opportunity to speak his statement to the Tribunal. We will begin with the defendant Ohlendorf.
THE DEFENDANT OHLENDORF: May it please the Tribunal, all serious literature published in the last two years on the problems of National Socialism, and particularly, religious literature, is agreed that National Socialism is not the cause, but the effect of a spiritual crisis. That crisis which unfolded itself in the last centuries, and particularly, in the last decardes, is twinfold: it is a religious and a spiritual one, and it is a political and social one. Catholic and Protestant literature, both maintain that at least since the application of Gallican freedoms, Christian religion as the final aim of humanity was increasingly eliminated from the spheres of the state which form the core of historical development. The end of the Christian idea as a binding goal for humanity in its social systems and of the individual turning to the beyond, to life in God, had a double effect.
1. Man lacked absolute and uniform values in his life. In his mind and impulses he no longer found a uniform and firm guiding point which could have supplied him with the motives for his actions. Religious values and laws took an ever smaller space in his emotions, thinking, and acting. The Christian values, if they remained at all important, actually could not prevent man from being split into a "Sunday" and "week-day" individual. Week-day supplied him with different motives to an even temporary meditation on God's will. Life this side of the grave had not only acquired a significance of its own, but indeed ruled him independently with its concepts of autonomy, wealth, social position, and so forth.
2. Society, organized into separate states, found in this development no uniform values either which might have been the constant objective of society or the state. As individuals and majority groups were in a position to make their separate aims the objects of society and politics, the inviolate metaphysical relatedness of politics was lost, and in consequence such social and political order as existed at a given time had to be disputed by the differing concepts of other individuals and other groups. The endeavors to preserve the status quo within the state and the nations was replaced by the will to eliminate the status quo by means of war or revolution. found this spiritual, religious, political, and social decay having a deep effect. There were no values for them which were not immediately attacked and opposed by different groups. Thirty or more parties fought for power in the state. They represented a number of opposing interests. This generation was not given the opportunity of living as humans and nothing else, nor was that idea taught to them as an uncontested concept. Socially their future was without hope. It is understandable that under those conditions this generation did not regard wealth as their aim, for material wealth had become a questionable asset after inflation, financial crisis, and years of economic stress, during which century-old properties, dissolved into nothing. They were longing for spiritual support, for a goal behind the social order into which they were born, a goal which promised them true human dignity, firm human objectives, and a spiritual and religious center for their developing into human beings. This generation had become too realistic in their suffering to believe that by fixing their eyes at the beyond they would find the moral and social basis for their existence as human beings at this period in history, They found denifite daily conditions socially and they were far too clear-cut for anyone to underrate their significance for human existence. Indeed the split into a "Sunday" and "week-day" man appeared as one of the deeper causes for spiritual and material suffering.
Thus, it becomes understandable that this generation searched for new religious values. the constitution and condition of the society, national, and state in which he lived for this generation not to look for ways and means to replace the changing rule of group interests by an order which was based on the conception of totality in relation to every single individual irrespective of his social statutes. We regarded National Socialism in that light and expected it to furnish the basis of a new order. It was not in the spirit of frivolity that we spoke of "The Thousand Years Reich" because we knew that the great development of humanity takes centuries, nay, thousands of years, until it matures and gives rise to yet newer developments. Our minds were not impatient, but we looked at the history of mankind, including their religious history, and that of the ups and downs of states and nations in order to find the guiding ideas in the growing and declining of the peoples in order to find the indications which would make it possible for us to fulfill justly the requirements of our time for the experiences and sufferings of history. From our search in history, we acquired the certainty that always it is the great religious aims, the great moral and ethical issues which flank the actual historical events. repeatedly pointed to the great religious and moral law contained in the Ten Commandments of Moses. Nobody will deny their binding character and no one can escape the sacred earnest of the Commandments, but it would amount to misjudging reality if one would, in the Books of Moses, ignore the descriptions of real history which in all its frightfulness is said to have been ordered by the same God who transmitted the Ten Commandments through Moses. It is not an empty religious phrase to say that to God a thousand years are but a moment. Anyone familiar with history will note that it is the outward customs and means that change in the course of the centuries, but that in 1948 no ideas are conceived or discussed which were not the living contents of Indian religious and philosophical systems, the Persian and Egyptian mysteries, Greek philosophy, the political systems and battles of the Greek city-states, of neo-platonic philosophy, of the large emotions of early Christians, the Roman concepts of law, and the state, of the great impulses of the Catholic Church and of Protestantism.
Middle Ages in the belief that in its wars the so-called modern age had become more humane that the Middle Ages, or the distant times, of what is known as barbarism. create martyrs for its ideals, but, independent of these aims and forces, every age has its human history, where individuals and nations engaged in contest for their existence, for great or small aims, for individual or collective objectives, the outward shape of which in its degree of frightfulness essentially depended on inner and outer suffering, and the degree of sincerity in these contests. As subject and object of history man stands in the middle of the development formed by sincere or insincere impulses. Man will take one or the other side or will be driven on by one or the other motive. In meditating on the character of man, he comes perhaps closest to the concept of man who is animated by religious ethic, and moral impulses which he tries to understand in himself in order then to apply them to living history. But as this aim and its practical fulfillment will never coincide, there always will be a tragic tension in the individual life between the religious and moral impulses and their application to real life, not only because individual man is limited in his power, but also because he lives in a worls of powerful groups and social conditions which can wholly ignore his intentions and dispose over him.
That tension, extends and becomes cruder in the history of the nations, both in the living body of the nations themselves, as well as in the relations between the nations. And yet all religions, especially the Christian religion teach that God becomes manifest in history. Experiences in the last years have often shaken that conception, and yet no one with a spark of religion in himself can escape that knowledge.
in God and historic reality as the outward manifestation of human ability and inability, human wisdom and human error, has grown into a general crisis in the human existence as such, since the elements of creations have shown themselves to man, and since human beings were not bound together by common ideals, Bolschevism appeared as the idol, equipped not only with power and force, but even with martyrs. Socialism, the spiritual, religious, political, and social crisis still persists. A link between East and West has been eliminated and this perhaps has made the crisis yet more apparent. In analysing our present time we will always find that ultimate values are still lacking from the feeling, thinking, and acting of human beings and nations. The meta-physical standards are lacking. We must never forget that the basic laws of Christianity in its relatedness to God and individualism with man as its center and its outward expression in the constitutions of states, are diametrically and irreconsilably opposed to one another. To Christianity this will always be true of any social order or political constitution which has made man the sole measure for its moties, the objects of its policies. If the ideas and concepts of democracy, the ideas of human dignity and liberty are to be made the sole yard-stick for the measuring of the recent period in history, it must not be forgotten that the idea of democracy is no substitute for the metaphysical obligation of the Christian or any other religious idea. The democratic idea is a formal one. It lacks all certitude which would comprehend the totality of human life; it assigns duties and privileges to people and social organizations; it grants individual liberties, but it does not give the reason why. Nor is this intended because this would contradict the objectives of democracy. To equip that idea with judicial authority by bestowing on its representatives a legitimacy from a binding religious and moral principle amounts to an entirely unjustified assumption that an idea or a law, which does not exist, is generally binding. As all metaphysical motivation is lacking, this usurpation will always be regarded as an effort by one group to maintain the status quo which will not serve to lessen the tension between the nations.
Nothing can grow from this which would substitute force by an idea binding for all and from which there could come comprehensive motives for a human conception of law and for the shaping of a common history of the nations. period simply because a fight has taken place for moral and ethical principles and, through certain historic conditions, for the survival of nations, even if appearances seem different at a superficial glance. I regard myself as one of those who have become aware of the contrast of those two forces in history. I have myself sensed that tension and endeavored to find a solution. I have said time and again that I was tortured by the fear of the punishment which those in Germany who were responsible for the historic development seemed to invite by their words and deeds. Their frank ignoring of human lives, and of the basic ideas of their own religious and moral conceptions of the people made this fear grow in me, but today my fear of future punishment invited by presentday events is greater still.
I have been now in the Palace of Justice in Nurnberg for 2 1/2 years. What I have seen here of life as a spiritual force in these 2 1/2 years in Nurnberg has increased my fear. Human beings who under normal conditions were decent citizens of their country were deprived of their basis and conception of law, custom, and morals by the power of the victors. The fact that they were deprived of their conceptions which in the place of the lost religious values had given to the majority of human beings moral and ethical support, and the fact that the life which they led justified by those conceptions was now called criminal, made them give up their human dignity, which they should never have done. While they waited for the verdict which was really announced beforehand, when the victorious powers had condemned their basic conception of life, the march of history did not stop, which in its concequences for the peoples concerned put the powers on the judges bench in the wrong before their own verdicts.