If he was not charged with anything so monstrous as that, it does not seem to me necessary for him to answer the question on a moral issue, but if he was presented with an order by Hitler to dispose of his own flesh and blood, whether he would regard that as a moral issue, or not, I believe, that it is a question that is entirely relevent and is not frivolous, and the witness will be called upon to answer it.
THE WITNESS: May I please answer this question in the way it was put by the Prosecutor, and the way it was originally put. I had not finished my statement why I considered this question as frivolous,as the Prosecutor interrupted me.
MR HEATH: The Court has ruled that the question is not frivolous, and it calls for an answer. I urge the Court or respectfully request the Court to ask the witness to answer the question.
THE PRESIDENT: The ruling disposes of this, and the witness will answer the question, so that you do not need to urge or demand.
MR HEATH: I should have added Your Honor, or refuse to answer it, one way or the other.
THE PRESIDENT: I am disposed to believe that he will answer it. Let's see whether he will answer it, or not.
THE WITNESS: I consider this question as frivolous, because it brings a completely private matter into a military one; that is, it deals with two events which have nothing to do with each other.
THE PRESIDENT: Witness - -
MR. HEATH: Your Honor -
THE PRESIDENT: Let's just keep in mind this situation. You are a defendant in a trial, and very serious charges have been brought against you. Your whole life and career are before this Court for scrutiny and examination.
A question arises regarding an order which you received, and that order calls for the execution, of defenseless people. You will Admit that in normal times such proposition would be incredible, and intolerable, but you claim that the circumstances were not normal, and, therefore, what might be accepted only with terrified judgment was accepted at that time as normal discharge of duties. It is the contention of the Prosecution, that regardless of the circumstances, the killing of defenseless people involved a moral issue, and that under all the circumstances you were to refrain from doing what was done. Now by way of illustration he advances, suppose that you had in the, discharge of this duty been confronted with the necessity of deciding whether to kill among hundreds of unknown people, one whom you knew very well. It seems to me that that is relevant comparison. Now, let's direct our attention to that very question, if you will, please.
THE WITNESS: If this demand would have been made to me under the same, pre-requisites that is within the framework of an order, which is absolutely necessary militarily, then I would have executed that order.
MR HEATH: That is all, sir.
THE PRESIDENT: Witness, I would like to ask one question. Were the men in your command entitled to any increase in pay because of the nature of the operation, or were they paid regular salary which went to all soldiers?
at any time.
THE PRESIDENT: Now you were travelling in a territory which must have been very strange to you, and you had indicated that you had interpreters, but you must have been confronted with many language difficulties, because of dialects, and so on. Do you suppose that because of those language barriers that any errors might have occurred, so that even individuals under the broadest interpretation of that order were killed who should not have been killed?
A I don't think so. The interpreter whom I had, for instance, my own interpreter was from Russia himself, and he knew the language and the conditions.
THE PRESIDENT: Very well. You stated yesterday the only reason why you did not wish to leave your command was that of a fear your successor might not be so considerate ox your men, as you were. In what way did you regard that, considerate in what respect?
THE PRESIDENT: Well, you were considerate of them, but the Tribunal does not understand in what respect, was it with regard to accommodations, with regard to food, with regard to the manner in which they had discharged this unpleasant duty? in Nikelaev; that, for example, the Higher SS and Police Leader Jeckel, had organized special detachments which had to carry out nothing but executions, and it is understandable that this would ruin these people spiritually, or make then completely brutal. This is an example of what I meant.
THE PRESIDENT: Very well. How much time did you spend, generally, in each community. I presume you were travelling all the time?
A I personally, or with my staff?
THE PRESIDENT: With your staff. With your unit, the Einsatzgruppe?
A I changed my headquarters when the headquarters of the Army moved;
I always joined the Supreme Command of the Army.
THE PRESIDENT: Now you said that you tried to avoid excesses. Just what do you mean by that? his own.
THE PRESIDENT: You mentioned this morning that apropos something else, that there was a Christmas celebration in your organization. Did you have a Christmas celebration regularly every year?
THE PRESIDENT: Yesterday, you stated that you had attended three executions, and in each one of those executions the subjects were singing the International and that they were shouting their allegiance to Stalin, and you took from that their solidarity to the Bolshevist Cause, and, as I understood your answer, you drew from that a justification for the order, namely, that these individuals had in effect declared their hostility to Germany, and, that, therefore, as a matter of security and self-defense, or as a war measure in itself, it was justifiable to dispose of them in the way they were disposed of?
THE PRESIDENT: I see.
THE WITNESS: I was asked whether I saw any signs that the Fuehrer Order really was based on objective facts, and I meant these facts as one example to show that in these cases the victims actually expressed this attitude. This was not a basis for my action, only an example of what I saw myself.
THE PRESIDENT: Did you take from their singing and from their shouts at that moment, that this reflected an attitude on the part of all that race, which called for aggressive measures on the part of the Reich? visits always were attended by the same demonstrations on the part of the victims. It was not a cause for me to act in any way. It was merely an It was merely an illustration of the actual situation.
THE PRESIDENT: Now just one more question on this incident. When you observed this demonstration, did you feel any sense of relief that here indeed were enemies of your country, and, therefore, the order which you were executing did have some justification in fact? Your Honor, because in any situation it is difficult to comment on this. I said that I watched this demonstration with respect, for I resepcted even this attitude, and I never hated an opponent, or an enemy, and I still do not do so today.
THE PRESIDENT: Any further questions, Dr Aschenauer? BY DR ASCHENAUER:
Q Your Honor, I only have two more questions. Thye concern the document which was submitted by the Prosecution. I believe it is Exhibit No. 167 - - 174. On page 4 of the German copy. In the original it is on page 3. There are two sentences "we received your directives from the Chief of the Security Police and the SD, and we are informed that we are under your command as far as restricting our mission on the part of the Army is concerned." I want to ask one question. Did you ever have any responsibility of your own about these missions, including the executions, which went higher in responsibility than that of the Supreme Army Commander, as the executor of Supreme command and which would have excluded the responsibility of the Army commander-in-chief over life and death?
A No. This activity was carried out under the responsibility of the Supreme Commander. He alone had the execution power of command, and therefore he disposed over life and death. This responsibility was never limited. your responsibility refers to the manner and type of the execution of the order?
DR. ASCHENAUER: I have no further questions.
THE PRESIDENT: The defendant may now be returned to the defendant's box.
(Witness excused. )
DR. ASCHENAUER: I call Dr. Reinhard Maurach.
DR. REINHARD MAURACH, a witness, took the stand and testified as follows:
JUDGE DIXON: Witness, hold up your right hand and repeat after me: will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE DIXON: You may be seated. BY DR. ASCHENAUER: your person.
A My name is Reinhard Maurach, M-a-u-r-a-c-h. I was born on the 25th of March, 1902, in Simferopol, Professor of Criminal Law, now in Munich. I have no connection with the defendant.
Q I ask you my first question. What is the position of the Soviet Union to international law?
MR. FERENCZ: If your Honors please, I must object to that question; the international law of the Soviet Union is certainly not an issue here. It has no relevance in this case.
THE PRESIDENT: Dr. Aschenauer, the question itself very obviously is irrelevant. If you can show the Tribunal how the attitude of the Soviet Government in any way sheds any light on this issue before us, we will be glad to hear you.
DR. ASCHENAUER: Your Honor, the Prosecution in its indictment refers to The Hague Convention, to the various agreements which were concluded between the various states. It also mentions the general customs of war. This opinion represented by the Prosecution forces me to the conclusion that these conventions and agreements are also valid for the Soviet Union. The Hague Convention, the international usages of war, are bases for the indictment. In this indictment we are concerned with a part of the war history. Therefore, this trial must also examine the principles of international law and the various conventions and what the position of the Soviet Union is to these conventions. It is the thesis of the Defense that a war emergency existed. For that reason we must produce a basis for the practice and theory of international law and the various conventions. It must be shown by the Defense that in reference to the Eastern area, inasfar as it is being dominated by the Soviet Union, a special legal situation existed. For this reason I must ask this basic introductory question, in order to show what the relationship is as far as the belligerency is concerned, from the point of view of the High Command of the Soviet Union, what the relationship is of this High Command to the various uses of war, and what its position is to the various conventions, For this reason I ask that this question be admitted.
In the final analysis it is nothing but an introductory question. After it I shall go into the specific questions which concern the indictment more specifically and more practically.
THE PRESIDENT: Are you prepared to show, Dr.Aschenauer, that by international law there is a defense to the charges as outlined by the Prosecution in the indictment?
DR. ASCHENAUER: As far is this is concerned, I have already gone into it in my opening statement, I have explained here that international law is not valid for the East
THE PRESIDENT: I don't want you to give me your opening statement again because I think that lasted three hours and a half. Dr. Aschenauer, the trouble is that your question is a little too general. I think you will have to admit that. The question which you have put to the witness is entirely too broad. Now, if you can get it down directly to the indictment and to the specific charges we will gladly hear you and see how much of this we may permit under our rules of procedure.
DR. ASCHENAUER: Then I shall formulate my question differently.
Q (By Dr. Aschenauer) What is the position of the Soviet Union, in its attitude toward international law, to The Hague Convention?
THE PRESIDENT: Well, that is the same thing.
Q (By Dr. Aschenauer) Was the Hague Convention valid for the Soviet Union?
THE PRESIDENT: Dr. Aschenauer, as we understand the defense, especially as brought out by the first defendant, the defendants were compelled to execute an order which come to them from higher authority.
Not once did the Defendant Ohlendorf speak about Russia and what its attitude was toward the Hague Convention. Their defense is not predicated, as we understand it, upon what Russia did, So wherein is the relevancy of this type of testimony?
DR. ASCHENAUER: The relevance of this testimony lies in the fact that on the basis of the Russian conduct in carrying on the war, the defendants had to count on the fact that a war would be carried on in the fast which would have to be waged outside of the normal limitations imposed by international law, and I want to prove this on the basis of the attitude of the Russian war leadership toward international law. The partisan warfare mentioned by the Prosecution is likewise to be traced back to the attitude about international law held by the Supreme Command of the Russian Army.
THE PRESIDENT: As We understand it, Dr. Aschenauer, you will attempt to establish by this witness that the Fuehrer order was justified because of Russia's attitude toward Germany and toward all those involved in the war. If you establish that, then you must, perforce, concede, and the Tribunal will ask you now whether you are willing to concede this, that the order was a justifiable order and that, therefore, the respective defendants had no reason to complain about the order because it was in accordance with international law. Are you ready to concede that?
DR. ASCHENAUER: I want to designate the Fuehrer order as a preventive measure of the German war leadership. For this reason I must cone back to the war rules as they were valid for the Eastern campaign, that is to the attitude which prevailed before the year 1941, for the Fuehrer order is in the final analysis only a consequence of this Russian attitude.
THE PRESIDENT: It would appear that you are in this position at this very moment, Dr. Aschenauer, of defending Hitler or defending Ohlendorf. If you prove that Hitler had every right to issue this order, then you are establishing that everything that was done was done in accordance with international law, which would in itself be a refutation of what Ohlendorf himself stated, that he objected to the order.
DR. ASCHENAUER: No, your Honor, it is this way, I describe the presumed emergency state in which the defendants found themselves and which can be explained from the international law in existence. I must prove how the defendants reached the conviction that the Fuehrer order had to be executed, and one part of this proof is the practical attitude toward international law in existence, I must prove how the defendants reached the conviction that the Fuehrer order had to be executed, and one part of this proof is the practical attitude toward international law represented by the Russian war leadership.
THE PRESIDENT: Then you are going behind the Fuehrer order itself. You are going one step further than the defendant himself did in his defense, is that correct?
DR. ASCHENAUER: No, I don't go any further than the defendant himself did. The defendant said that the execution of the order can only be explained for the existing special circumstances, and the special conditions then existing were a result of the war emergency state then existing.
THE PRESIDENT: But he did say that he protested this order.
Mr. Ferencz.
MR. FERENCZ: I would like to point out to Dr. Aschenauer that this question was raised before the International Military Tribunal and it was held, by the. Tribunal there that regardless whether Russia was bound by The Hague Convention or not, Germany was so bound. So to raise the question here again is completely irrelevant to any of the issues we have brought and outside the jurisdiction of this case.
DR. ASCHENAUER: Your Honor, may I state my attitude towards this objection? This is one of the basic problems in Case 9. In Case 9 it isn't a matter of any facts, but of activities of persons in Russia, one cannot legally evaluate these activities by examining the actual overall situation if one does riot look into the circumstances, the knowledge and the experiences of the defendants, which induced them to commit those deeds. The Prosecution argues that the question of an emergency, and of a presumed emergency is superfluous since the IMT verdict established a state of aggressive war against Russia.
In such case there would be no state of emergency for the attacker. Whether the IMT verdict about the aggressive war against Russia did justice to the actual historical situation in 1941, I leave outside of this trial. This IMT verdict does not touch upon the legal situation of the 23 defendants here in Case 9. self-defense cannot be denied to them in face of the situation in which the citizens of the State found themselves after the speeck of their Chief of State of the 22nd of June '41, except if it were proved to them that they knew, contrary to the speech of Hitler, that, it was a purely aggressive war, that they wanted it, and that they were preparing for it. of the Defendant Ohlendorf with all clarity. Here at the latest the Prosecution should have brought up its objections. Nothing of the kind happened. This evidence admitted without the slightest objection, and now that this line of thought is to be pursued and confirmed by an expert opinion, and since this is being objected to by the Prosecution, it can have only one reason, that after the defense of the Defendant Ohlendorf, the great importance of these points have become clear to them. Furthermore, it is doubtlessly true that international law and international customs of war have been established for cases of war only because the one partner always will plead an emergency and unrestricted warfare would be the result. International emergency and international self-defense are independent of the fact whether anyone is the attacker or the one being attacked and is independent of any such subsequent findings. Finally it happens that one of the war partners, apart from the cause of the war, declares himself not bound by international law or by the established customs of war. Maurach's testimony is to show that this situation applies to Germany, and especially the intentions, motives, and aims of the defendants in reference to the Russian conduct which was to be expected from the theory and practice applied before 1941.
As far as the intensity of the criminal will of the defendants is concerned, it is legally relevant and necessary to find out for what motives they acted. The clarification of this psychological question plays an important part at least as far as the sentence is concerned. The cutting off of any evidence which tries to explain the motives of the perpetrator is therefore equivalent to an inadmissible restriction of the defense. Evidence such as this cannot be rejected with statements which belong only in the judgment of the Tribunal. If this evidence was such that on examining it one would have to see chat it was neither relevant for deciding guilt or the sentence, the Tribunal could refuse the evidence. In this case the evidence belongs to the usual Subject matter of the trial which the Tribunal may only evaluate at the end of the trial. Convention and the customs of war as bases for the legal evaluation of the actions. Therefore it is justifiable to examine the Russian side of this war in order to find where these bases were actually present. The partisan warfare was claimed even by the Prosecution. Why should it not and care it not be proved that this partisan warfare, Which originally was responsible for many executions was outside of international law? Likewise it is important that, beginning with the Stalin call for partisan warfare of 3 July 1941, the defendants found the previously assumed emergency confirmed as the war continued. The indictment claims that there is no emergency state when there is an aggressive war. When the Prosecution claims this it basically confirms the standard for all criminal laws, namely that a national emergency exists. It doubts merely that in the special case of the belligerent state between the Reich and the Soviet Union, which was declared, unfavorably for Germany, as an aggressive war, a National emergency was to be applied. This decision of the Prosecution is to be clarified since Ohlendorf and the others base themselves on this national emergency.
to enable the Tribunal to determine the subjective side the intentions, the goals, and the motives of the defendants. The claim of the Prosecution is erroneous for two reasons.
THE PRESIDENT: Dr. Aschenauer, may I interrupt, please. You stated in your argument up to this point that you might interpret our refusla to hear this evidence as a constriction upon the opportunity of the defense to present its case. We would look with great regret upon any interpretation by you or your brother defense counsel that this Tribunal in any way prevented the defense from presenting its case, regardless of what it may be. It appears to us at this juncture that what you are attempting to show by this witness is irrelevant. However, we will permit some questions just to see how you develop your theme. If it appears, after a few questions, that the testimony of the witness is entirely immaterial to the issue, then we will once more examine the relevancy of it. If we allow the witness to testify to the full extent of his knowledge on this particular issue, we will allow the prosecution to make any motion that it sees fit after the testimony is in as to whether this still is irrelevant, if it turns out to be irrelevant and it should not be excluded. Q (BY DR. ASCHENAUER) Then please answer my first question.
THE PRESIDENT: Now may I just say this in addition, Dr. Aschenauer and to the witness also: Let us try to be very specific with questions and with answers. The field of International Law is limitless and boundless and if we have a professor on the witness stand and he takes us as students in his classroom, he could talk for hours on any given subject and, undoubtedly interestingly. Let us try to confine it to the actual issue before the Tribunal. of 1907 cannot have any application to the Soviet Union. This is a decision which is not connected with legal theory and general questions, but in my opinion it is to be examined positivistically whether these regulations of this international convention of 1907 are binding for the Soviet Union, either because it was a signatory or because of continued validity. I don't think I am wrong in assuming that an express adherence of the Soviet Union to the treaty has not been registered and therefore it cannot be determined whether the Soviet Union signed it or not.
Of course, this still does not mean anything. One would have to go on and examine perhaps, whether the Hague Convention is valid for the Soviet Union because it was signed by the Czarist government and because the Soviet Union is the legal successor of the Czarist Government. But I would like to deny this question also, for the following reasons: successor of the Czarist Government has been very variously answered in legal theory, and the Soviet Union has-unfortunately, I might say - not taken an unequivocal position on this issue. Once in 1924 it stated to the Institute Intermediary in answer to the question whether a treaty concluded in 1917, a treaty concluded before the Soviet Union existed, whether such an agreement is binding to the Soviet Union that this cannot be answered generally, but that it would have to be interpreted from case to case. In all political treaties the Soviet Union has taken the attitude that such treaties which represent a certain limitation on its sovereignty, do not automatically continue to be valid, but that it was different with its practice on economic agreements, world postal agreements, which were not political agreements, but when political treaties were involved, the Soviet Union reserved the right to sign it. Therefore, it always represented the attitude that these political treaties were only valid for the Soviet Union if an express renewal or a new signature takes place. As I said, an express signing did not take place, a silent agreement -
THE PRESIDENT: Professor, just a moment.
MR. FERENCZ: If Your Honors please, I don't want to hinder the defense in any way, but in order to save time, we will concede whatever the Professor states as his opinion; either the Hague Convention does apply to Russia or does not apply to Russia and we will concede, if he will just state what his opinion is -- that is, we will concede that it is his opinion.
THE PRESIDENT: Yes. That's quite a concession, Dr. Aschenauer. He is willing to agree with you on either side and then let you draw from that statement whatever you feel is logical in your defense, because it must be very clear even to you, Dr. Aschenauer, that the way the professor has begun his dissertation -- that it may be a rather long one, because he is more or less trained to go into a Question with the greatest of minutiae and with the blackboard, We might be here much longer than even you expect, if we don't put a limit on his testimony.
DR. ASCHENAUER: Yes.
THE PRESIDENT: Why don't you ask him directly whether Russia is or is not bound by the Hague and Geneva Conventions. Then, at least, we'll have briefly his answer. Then, if he wants to explain why, he can in a few brief sentences fortify his conclusion.
DR. ASCHENAUER: Yes, I shall try to be precise.
Q (BY Dr. Aschenauer): Witness, was the Soviet Union bound by the Geneva Prisoner of War Convention? to the Soviet Union and for this reason: Because this Convention was concluded in 1929, that is, at a time when the Soviet Union already exited, and the Soviet Union was not a signatory to this convention. would make considerable differences, all according to whether the prisoners of war are proletarians or class enemies? statement nor is any statement of the War Ministry existent, but there are other explanations by the leading representatives of the Soviet International Law: Professor Korovin, Professor Pashukanis, Sabanjn, and others, and here, as a rule, they stated that the Soviet Union would draw a difference in the treatment of its prisoners, all according to whether these are proletarians or non-proletarians, that is, class enemies.
The proletarians can be educated in a prisoner-of-war camp but the class enemies have to be isolated and have to be made harmless. ered admissible, if they represent a danger to the leadership of the Red Army?
A This question is to be confirmed basically, principally. Examples for this are the evacuations of elements of populations, even before the war, from border territories, and, above all, during the War, after 1941, the evacuations of even greater groups of people from the war areas, first of all, of the Tartars from the Crimea, of the Germans from the Crimea, and of all the Volga Germans form the Volga area.
Q Would this danger have to exist more concretely? evidence of any treasonous attitude of these people. It was sort of a general preventive measure.
MR. FERENCZ: If Your Honors please, all the questions presented by the Defense thus far have had no bearing whatsoever on the charges brought against the Defendant Ohlendorf or any other defendant in this case. We, therefore, ask that this line of questioning be discontinued and that everything stated by the witness be stricken from the record as irrelevant.
THE PRESIDENT: Certainly, Dr. Aschenauer, the Conventions with regard to prisoners of war aren't applicable here, because we are not discussing prisoners of war. We are discussing the civilian population.
DR. ASCHENAUER: Your Honor, the Hague Convention, on the other hand, is a matter of this case and -
THE PRESIDENT: Let me interrupt, Dr. Aschenauer, please. You have heard the prosecution's objections and the Tribunal has attempted to indicate also how it looks upon this particular issue. Now, as we said before, in no way will we restrict the defense in presenting what to them seems the logical defense in this case, always within the bounds of reason.
Now we will recess at the present time and I would suggest that you talk with the professor after court adjourns and the professor has heard this discussion back and forth and perhaps you can crystallize a few precise questions which will bring from the witness precisely what you want and then we'll make the ruling on the prosecution's objections tomorrow morning. Is that clear?
DR. ASCRENAUER: Yes.
THE PRESIDENT: Yes. The Tribunal will now be in recess until tomorrow morning at 9:30 o'clock.
(The Tribunal adjourned until 16 October 1947, at 0930 hours.)
of America, against Otto Ohlendorf, et al.,
THE MARSHAL: The Honorable, the Judges of Military Tribunal. No. II-A.
Military Tribunal No. II-A is now in session, God save the United States of America, and this Honorable Tribunal.
MR. WALTON: May it please the Tribunal, one short motion this morning before we get down to the business of the Court. The Prosecution this time moves the Tribunal for an admission of the Document which was introduced yesterday during the cross examination of the Defendant Ohlendorf. That document is No. NOKW-256, which has been given the identification number of Prosecution's Exhibit No. 174. We respectively move the Tribunal at this time that this document be admitted into evidence as part of the Prosecution's case.
THE PRESIDENT: Prosecution's Exhibit No. 194 will be admitted into evidence as part of the Prosecution's case. Dr, Aschenauer.
DR. GAWLIK: Dr. Gawlik for the defendant Naumann. Your Honor, I ask that the defendant Neumann be excused immediately because his defense has to be prepared, and that he be led to Room No. 57 to discuss it with me. I make this motion now because Professor Maurach is to be examined as an expert, and, therefore, it was my intention to have Herr Naumann excused in the afternoon, but I just heard Professor Maurach will not appear, and that Herr Spengler will be examined immediately, and for this reason I would like now to make this motion.
THE PRESIDENT: The motion of course, will be granted. You understand that you will be the next in order?
DR. GAWLIK: Yes, Your Honor.
THE PRESIDENT: Very well, all right. The defendant Naumann will be excused and will be taken toRoom No. 47 where he may be in conference with his attorney, Dr. Gawlik.