The doctrine of these legal systems on the rules governing acts of selfdefense and acts committed in a state of emergency, rules developed by Case Law, would be so alien to European legal thought, that it is bound to produce misleading results if applied to the conduct of the Defendant. According to American law, the scope of the rules governing acts of self-defense is extremely narrow, if compared with the European concept; the principles of the rules governing acts committed in assumed self defense are not even elucidated. Similar to English law, selfdefense forms part of the constituent elements of a crime and, therefore, does not carry the same comprehensive and fundamental importance as it has in European law. Therefore, the closing of gaps left in Law No. 10 with American statutary or common law, would no doubt violate the predominant principle that an act can only be completely judged if presented in its social and legal context; it would not be in conformity with the principle of material justice, as postulated in Law No. 10, if principles alien to the German and European concept of law were applied, in considering legally relevant varieties of conduct, such as acting in emergency or in presumed emergency, acting in self-defense or in presumed self-defense. supplement application of the legal code of the nation by which the Court is formed in the case. The evaluation of the Defendant's actions would differ - and this would have effects contrary to just punishment if each Court were to fall back on its own national law. For in that case it would be unavoidable that the interpretation of the concept of mental sanity, by e.g. a French court should differ from the one, say, of an English Court.
The result would he that, given identical cases the difference in age limits would also have to be considered - one Defendant would have to be acquitted, while the other would have to be sentenced, because he happened to be handed over to a Court of a different Allied nation. The supplementary application of the LEX FORI does not therefore lead to a satisfactory solution.
b) The national law of the defendant should be applied. In order to close the gaps left in Law No. 10 in the field of general regulations, the general part of the German Criminal Code would therefore have to be applied in case this doctrine is followed. the Court is A PRIORI not familiar with that law. This, however, is outweighed by considerable advantages. The general part of the German Penal Code is (as are the Austrian, Swiss, and Russian Laws) a characteristic representative of the European legal system with its tendency to lay down firm, and at the same time general rules, especially in respect to acts committed in a state of emergency and in self-defense. Furthermore, that law could in fact, and not only in hypothesis, be considered the guiding principle for the conduct of the Defendant. The Defendants are also psychologically forced to admit the validity of these law statutes against themselves to their full extent; they do not have the excuse that they are being judged according to "foreign penal law". Finally also International Law speaks in favor of applying German Criminal Law in a supplementary fashion; for, as the Defendants committed their acts in occupied enemy territory, these acts have to be considered, according to a theory popular on the Continent of Europe, as committed within the borders of Germany within the meaning of the Criminal Code.
c) The law of the place of the crime should be applied. As the offense of the Defendants is "geographically defined" within the meaning of the Moscow Declaration of 30 October 1943, that law can easily be ascertained; in the case under review, it is the Penal Code of the Soviet Union (Penal Codes of the Russian Soviet Federal Socialist Republic of 1926, of the Ukrainian Republic of 1927 and any Special All-Union Laws). The following considerations speak in favor of the supplementary application of that law.
Firstly, according to the Moscow Declaration of 30 Oct. 1943, (which according to Article I forms an integral part of Law No. 10) the law of the place of the crime (Law LOCI) rules the adjudication of crimes which can be geographically defined; the perpetrators "will be sent back to the countries in which their abominable deeds were done in order that they may be punished according to the laws of these liberated countries". Furthermore, the applicability of the LEX LOCI is explicitly stressed in the indictment itself; this must, naturally, be true not only for the arguments of the Prosecution, but also for any exonerating or justifying circumstances. Finally the application of the LAW LOCI also conforms to the idea of justice.
d) Finally: the law of the victim State should be applied - in this case again, the Penal Code of the Soviet Union. The facts which favor the principle stated in c) also apply here. That theory is further supported from the point of view of legal systems, by the principle of punishing acts committed in a certain country according to the laws of that country and for the protection of that country, a principle recognized in International Penal Law; it is supported, from the point of view of territorial applicability, by the fact that above all other solutions, it stills the justifiable desire for retribution on the part of the primarily injured state. The following will show that in the first place the Soviet Penal Law and, failing that, the German Penal Law, should be used to supplement "general regulations" in order to close the gaps in Law No. 10 and that this solution is preferable by far to any other possibility.
That choice brings with it another very important advantage. For the problems under discussion in the present case, namely evaluation of acts of self-defense end pets of emergency, the two legal systems show striking similarities, as both are exponents of the characteristic European concept of Penal Law, with its tendency to systematic generalization and adversity towards Case Law.
This can be easily explained on historical grounds. For the Penal Code of the Russian Soviet Federal Socialist Republic of 1926 is largely based on the old Russian Penal Code of 1903; the latter's origin, however, was decisively influenced by the German doctrine prevalent in about 1900. When we compare the German and Soviet rules governing acts of self-defense and acts committed in an emergency, we can arrive at that "cross-section", that "average rule", a result unobtainable by comparing the Continental European and the Anglo-Saxon Penal Laws, owing to the difference between these two legal systems. A Court called on to decide a specified case is only then able fully to evaluate the arguments of a defendant, if their evaluation is based on the so-called European "cross-section" of the rules governing acts of self-defense and acts committed in en emergency. The rules have to be discussed in the following, and the arguments brought forward for the defendant have to be judged according to these rules. and in presumed self-defense. according to European legal conception. The prerequisites of these two legal concepts first have to be examined separately, according to German and according to Soviet Law; subsequently it has to be ascertained which prerequisites are common to both legal systems; the result will form the above-mentioned "cross-section", on which the actual evaluation of the defendant's actions has to be based. I. Self-Defense 1) According to German Law.
a) Self-defense is considered (Article 53 of the Penal Code) a so called justification; where self-defense is established there can be no question of an act being unlawful:
the act is not only excused but even approved by the law. The prerequisite for self-defense is an unlawful attack, i.e., an attack which the attacked person does not have to tolerate. The attack need not yet have started. Self-defense is also admissible in the face of an imminently threatening attack. Acts in defense of all protected interests come under self-defense which is not limited to acts in protection of life and limb. Therefore, also the state as such, the existence of a nation, the endangered vital interests of a nation, can be defended in self-defense. The protected interests are thus much more numerous then in Anglo-Saxon Law.
b) Not only the person attacked, but any third person, is allowed to act in self-defense. This is important, particularly with respect to the so-called self-defense on behalf of the State. For selfdefense in favor of the State always constitutes an act for the protection of a third party, can therefore only be carried out by a third person. No comparison in the value of the protected interests is being drawn in the case of self-defense, neither does it exist, therefore, in the case of defense of the State. The only measure for the defensive action always is the intensity of the attack.
c) Presumed self-defense and acts for the presumed protection of a third party. Although these concepts are not formulated in the law, they are generally recognized in theory and jurisdiction. They exist where the perpetrator erroneously presumed an "unlawful attack". If the error was unavoidable, the presumed state of self-defense serves as justification; if, however, the error could have been avoided. the legal importance of such self-defense is contested; according to one opinion, the defendant cannot be sentenced for having acted with intent; while according to another less widespread opinion it constituted a factor mitigating the guilt, while accountability for intent remains.
According to both opinions, it is, however, impossible to hold the Defend and responsible to the full extent for this criminal guilt, if, owing to a factual error, he believed his act to be justified. 2. According to Soviet Law.
a) According to Soviet Law (Art. 13, par. 1 of the Penal code of the Russian Society Federal Socialist Republic and the other Republics of the Union of the year 1926) the concept of self-defense conforms essentially to the German concept. Self-defense can apply to the State too, and particularly to the Soviet organization as such. In contrast to German law, the Soviet law even states VERBIS EXPRESSIS that selfdefense may be also exercised in favor of the State (compare for details Maurach, Systematic Treatise on the RUSSIAN PENAL LAW of 1928, p. 101). As in the German law, there is no provision for fixed proportions between the clashing interests. It is not clarified in professional publications whether an act committed in aid of a third person constitutes justification or only an excuse.
b) Presumed self-defense and acts for the presumed protection of a third person. As in the German law, this is not laid down by law, but is recognized in jurisdiction and literature. It is treated in the same manner as a factual error. It excludes intent, the guilt is at least considered as mitigated; it is immaterial whether or not the error was avoidable. II. State of Emergency 1) According to German Law The regulations concerning the state of emergency (Notstand) found in the existing laws are insufficient, not codified and given for individual cases and situations.
The fundamental decisionof the Reich Supreme Court clarified the position. According to this the following applies:
a) A distinction is made between a state of emergency as justifica tion for an act end a state of emergency merely precluding guilt.
A feet com on to both is that an interest protected by law must be in imminent danger, which danger can only be averted by the violation of another interest protected by the law, having no connection with the first one. If the threatened interest is found to be of greater value, then the state of emergency constitutes grounds for justification; if the interests cannot be weighed and if there is a threat of danger of life or limb of the perpetrator or a relative then the state of emergency constitutes a reason precluding guilt.
b) National Emergency is in principle recognized within the same limits as assistance to the State in case of emergency ( Staatsnothilfe). According to the decision of the Reich SupremeCourt of 3 April 1922 File II, 791122, a situation of acute danger is constituted particularly by underground activities of resisting elements of the population of an area and the increasing insecurity of that area resulting therefrom". Furthermore, the Reich Supreme court has in No. 60, 318. recognized the so-called permanent state of emergency and has stated that the permanent danger which a particular person presents to the community could, in certain circumstances, justify his elimination by killing as an act of emergency. The question of whether national emergency allows the killing of a man was, on the other hand, left open by the Reich Supreme Court. The question has been widely discussed, especially in the period following the first war, but was never definitely decided.
c. Presumed state of emergency. The law gives no definite ruling on this, but it is recognized according to common law in doctrine and jurisprudence. In principle it is treated in the same Way as presumed self-defense.
2. According to Soviet law: More modern than German law, Soviet Penal Law gives, in Section 13, paragraph 2 of the Criminal Code, a ruling on the state of emergency. It has thus achieved the aim for which the German reform legislation has been striving for a long time. Acts of emergency are unrestrictedly admissible if they are necessary for the protection of higher interests insofar as the danger could not be averted by any other means. Whether this constitutes a justification or merely a legal excuse is not clear. There is no legal ruling on a presumed state of emergency but it is treated as an error and thus comes in the same category as presumed self-defense.
3. Results of comparison of both legal systems. If the elements common to both legal systems are examined, a wide similarity will be found in the conceptions of these legal terms:
a. Self-defense. All protected interests may be the subject of self-defense, particularly the survival of the state and the vital interests of the nation represented by the state. If the existence of the state or of the nation is directly threatened, any citizen -- and not only those appointed for this purpose by the state -- may act for their protection. The extent of the self-defense or of the act for the protection of the third party (Nothilfe) varies according to the severity of the attack and does not exclude killing. An error concerning the prerequisites of self-defense or of an act for the protection of a third party is to be treated as an error about facts and constitutes, according to the avoidability and also the degree of gravity of the individual error, a legal excuse or, at the very least, a mitigating circumstance.
b. State of emergency. In accordance to both legal systems, a state of emergency is always of a subsidiary character - thus it is a so-called last resort.
All legal interests can be in a state of emergency, especially also the state and its institutions as well as the welfare of the nation. A state of emergency is recognized where the threatened legal interest is of considerably greater value than the interest attacked by the perpetrator. A presumed state of emergency is, on principle, treated as a grave error - that is, it is treated in the same manner as presumed self-defense. of a legal clause. On the basis of the examination of the European "cross-section" of the legal position assumed by the defendant Ohlendorf, it must be established to what extent the actual circumstances under which the defendant acted correspond to the prerequisites of a criminal case as described above. Before, however, reference must be made to the method to be applied. the real conditions were given for a case of action in defense of the endangered nation (Staatsnothilfe) or participation in the self-defense of the state (Staatsnotwehr). But they do submit that in view of the special situation in which they found themselves and in which they were called upon to act, they assumed that the conditions were given for the above-mentioned legal concepts. There is no need to examine the questions whether there actually existed a situation calling for an act of self-defense or of emergency. and which discusses the objective conditions for an act of self-defense and in a state of emergency. Such an examination is necessary in order to find out where, precisely, the defendant Ohlendorf committed the error concerning the permissibility of his action; because the greater the extent to which the objective situation corresponded to the defendant's conception, the weightier his defense that by mistake he considered his action justified or necessary.
After this introduction, and on the basis of the defendant's statement, the examination may be arranged according to the following points of view:
1. Objective conditions, i. e., conditions which existed not merely in the defendant's mind but were actual facts: the nature of the war against the Soviet Union.
2. Subjective conditions. i. e., conditions Which were not actual facts, the assumption of which could, however, have brought about the defendant's error about what would constitute the conditions for action in defense of the endangered nation or in a state of national emergency; the East European Jewish problem as part of the problem of Bolshevism; origin and import of the defendant's obsession that a solution of the problem - Bolshevism versus Europe - could only be brought about by a "solution" of the Jewish problem, and, in their particular sphere, only by unreserved execution of the Fuehrer order. tions, - that is, the question of the cause for the above-mentioned obsession, I call upon the expert witness Professor Dr. Reinhart Maurach. does not justify extraordinary actions prohibited by written and common international law from the point of view of self-defense, and a state of emergeny. If this were the case, international law would be a mere illusion, for at least one of the parties waging wax would be able to claim to have acted in self-defense - whereas both parties would be at liberty to plead the existence of a state of emergency. or state of emergency. But a preliminary condition is that there is really war in the strict sense of international law, an armed clash between two states; but if the armed clash has from the outset an aspect considerably exceeding the measure of war and its limits, if, in other words, the war aims and war methods to be definitely expected from one of the opponents are so "total" that, in relation to them, the tradi tional conceptions and limits of international law cannot be applied, it will not be possible to refuse resort to self-defense and to a state of emergency - even within the war - to the opponent of such a state.
given the qualification of such an enemy - proper enemy in the sense of international law. The character of the Soviet Union as a state, and, consequently, as a potential belligerent can, it is true, not be denied. But the question is Whether the Soviet Union, according to her own ideology and to the ideas which are its basis, has not to be considered as such a belligerent who, considering the war aims and methods of the Soviet Union, puts the presumptive adversary ipso facto into the position of war self-defense admissible in international law.
II. In addition, the defendants refer to the orders given and the state of emergency caused by these orders. As to this question Dr. Gawlik is going to give detailed explanations. Concerning this problem of superior orders contested by the statute here, and by Law No. 10 of the Control Council, I only want to give some quotations of passages from English - not German, works:
Professor Oppenheim has stated in his book, "The Law of Nations":
"Violations of the rules of warfare are war crimes only if they are committed without order of the belligerent government in question, If members of the armed forces commit such violations by order of their governments, such violations are no war crimes and cannot be punished by the opponent; the latter can, however, take reprisals. If members of armed forces are ordered by their military commanders to commit violations - the members cannot be punished - for the commanders alone are responsible and the latter can, therefore, be punished as war criminals after being captured by the enemy." writes in the article, "The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War";
"The principle that members of the armed forces of a country are not personally responsible and can, therefore, not be punished for acts contrary to the rules of warfare and committed by them by order, or with approval, of their governmental or military superiors, is not part of the codified law on warfare.
Nevertheless, this seems to be a recognized principle of this law, at least, this principle has been drawn up in the war manuals of the powers as a rule of the common law on warfare since 1914." the supervision of the Judge Advocate General published by the U. S. War Department in 1940, and today still in force, states - after enumerating the possible war crimes:
"Individuals of the armed forces are not to be punished for these war crimes if the latter were committed by order, or with the approval, of their government or commanders. The superiors who ordered such acts or under whose authority such acts were committed by their troops, can be punished by the belligerents in whose hands they fall." British authorities in the British Manual of Military Law. Its Article 443 went on, after enumerating possible war crimes:
"It is, however, important to note that members of the armed forces who commit such violations of the recognized rules of warfare that have been ordered by their governments or commanders are not war crimes and can, therefore, not be punished by the enemy. He can punish the officials or commanders responsible for such orders if they fall into his hands, otherwise he can only take the other measures dealt with in this chapter." published in the English Year Book for International Law 1944:
"Although Chapter XIV of the Military Manual was not given statutory powers it contains, in general, a statement of the rules of written and common international law as they are understood by Great Britain."
man was to disobey the order of the Fuehrer, if is necessary to illustrate the situation in its historical development by a written expert opinion.
III. When Fieldmarshal Keitel defended himself and the OKW at the trial before the IMT, he tried to convey a picture of the distribution of power in the National Socialist regime, according to which the SS represented the will which governed the state - whereas the Wehrmacht and its leaders were in a state of unqualified subjection to this "fact". Wehrmacht and any leading institutions and supreme representatives of the State and Party, we must always remain conscious of the fact that the Wehrmacht enjoyed at all times a privileged position which was unique. claimed a central position in a comprehensive sphere of activities, was at the beginning of the war excluded from the Wehrmacht and from the occupied territories under the command of the Wehrmacht. (Example: The first groups of the Chief of the Security Police and of the SD (Security Service) marched into France camouflaged and under a false designation,) It was only before the Russian campaign that an agreement was concluded, after difficult negotiations, which regulated the tasks of the State Police and of the SD outside the troops. High Command of the Army and the Chief of the Security Police and of the SD which led to a written agreement which was signed by Quartermaster General, General Wagner, and by the then Chief of the Security Police and of the SD, Heydrich. Schellenberg kept the minutes. The agreement contained the basic order of the Fuehrer, that the Security of the fighting troops must be guaranteed by all means and that units of the Security Police and of the SD must be employed in support of the Army units.
The Chief of the Security Police and of the SD was given immediate authority to issue pertinent instructions to these units and an independent channel for receiving and transmitting reports which was outside the jurisdiction of the Wehrmacht. These units by no means formed a special "political theater of operations" hut they were attached to the Army units - this was laid down in the second part of the agreement - and generally had to carry out tasks for the Army units within their areas, which had hitherto been handled by the Army units themselves. The second part contained an exact regulation of commands and subordinations. "In the Front or combat areas the Einsatzkommandos of the SIPO and of the SD were in all tactical and service questions that is completely - put under the command of the Army." In the operational areas they were under the command of the Army as far as service matters were concerned; orders resulting from tactical considerations had precedence over all other orders. If it was required by the military situation, the Einsatzgruppen and Einsatzkommandos could be used for military tasks regardless of other orders. The third part of the agreement explained the concepts "tactical" and "service".
In accordance with this agreement and the "Barbarossa-Order" to the Army units, which was based on it, mobile units designated "Einsatzgruppen" and "Einsatzkommandos" were attached to the Army Groups and Armies in the East, Army Group North got Einsatzgruppe A. Army Group Center got Einsatzgruppe B, and Army Group South got Einsatzgruppen C and D. (Einsatzgruppe D was originally intended to serve with an Army Group which was to operate in the Caucasus.) In spite of the intended official designation of the leaders of these units as "Representative of the Chief of the Security Police and of the SD with the commander of the Rear Area of Army Group......, Einsatzgruppe....", what happened in practice was that at once, at the beginning of the Eastern campaign whole Einsatzgruppen or the larger part of such groups were attached to Armies by order of the Army Group in question. Einsatzgruppe D was, from the first day and for the entire period which is of importance for this trial, attached only to the 11th Army and had no connection with the Commander of the Rear Area of the Army.
(Kommandos) each to the Commanders of the Rear Area of the Army and to three individual Armies, the detachments (Kommandos) of Einsatzgruppe C were at the disposal of the Armies only. That the Commanding Generals of Armies themselves attached great value to having the detachments in their operational area is proved by the subsequent alteration of the order for Sonderkommando 4a. This Kommando was assigned to the Commander of the Rear Area of the Army, but was attached to the 6th Army on the personal order of Field Marshal von Reichenau.
For "Marches" and "Rations" the Einsatzgruppe was subordinate to the Command Headquarters, which means that the Army units were competent for 1. Determining the location of the staff of the Einsatzgruppen and of the Kommandos, which included fixing the strength of the staffs and kommandos as well as the length of time to be spent in one location.
2. Billeting.
3. Rations including PX goods.
4. Gasoline.
5. Repair of motor vehicles and spare parts.
6. Ammunition.
7. Maps.
8. Field post.
9. Telecommunications. carried out in practice in the East we may form the following picture of the actual and. legal situation, which is typical for the manner in which orders were given:
1. The Einsatzgruppen and their subordinate units were fully motorized mobile units which were militarily equipped and organized.
Members of the State Police, of the Criminal Police, of the SD and units of the Ordnungspolizei and of the Waffen-SS were assigned to the Einsatzgruppen. They were thus units composed of a minority of specialists of the Security Police and of the SD and of units of the Ordnungspolizei and of the Waffen-SS. This unit was at the disposal of the Representative of the Chief of the Sipo and of the SD for his tasks in the operational area of the Command headquarters, to which he was attached. The special position of the Einsatzgruppen and Einsatzkommandos manifested itself also in the fact that they were not called Einsatzgruppen and Einsatzkommandos of the Sipo and of the SD, but simply Einsatzgruppe A to D, or Kommandos 1 to 12. Their primary task being of the kind normally handled by the Security Police and by the SD, the Einsatzgruppen and Einsatzkommandos were led by leaders of the Sipo or of the SD who were specially assigned this task.
2. The Representatives of the Chief of the Sipo and of the SD with the Army groups and with the Armies were attached to the Commanding Generals and subordinate to them in the functions which were most important for their work.
3. As regards technical instructions the powers of command of the Commanding Generals and of the Chiefs of the Security Police and of the SD were not clearly separated. The question had been deliberately left open and left to practice. But it was certain - and expressly mentioned in the Barbarossa order - that every order of the Army Group or of the Army, "for reasons of operational necessity" had precedence over the orders of the Chief of the Sipo and of the SD. Whenever it was necessary in the military situation, the Army units could on their own responsibility and at their own discretion make the Einsatzgruppen and the subunits subordinate to themselves for military tasks.
Defense Law of 4 September 1938. In Article 2 we read: "Once an operational area has been determined, the declaration of the state of defense confers on the Commander-in-Chief of the Army and the Commanding Generals of Armies without special order the right to exercise executive power in this operational area. This right to give orders has precedence over instructions given by other superior agencies..."
Concerning, "competencies to issue orders in the operational area of the Army" the OKW moreover issued an order on 11 April 1940 which states under No. 3 with reference to the Reich Defense Law: "... in their exercise of executive powers the Commanders-in-Chief of the Army and the Commanding Generals of the Armies are entitled to issue directives, to set up special courts and to issue instructions to the authorities and agencies in charge of the operational area, with the exception of the highest authorities of the Reich, the highest authorities of the Prussian State and the Reichsleigung of the NSDAP. This right to issue instructions has precedence over instructions of other superior agencies." and by an order of the LKW shows, that the right of issuing instructions to the higher SS-and Police Chief and the SS-and Police units under his command is gradually more firmly established. Thus on 7 September 1943 the OKW issued a "service instruction for the higher SS-and Police Chief in Greece", in which it is laid down among other things: "The Higher SS-and Police Chief is an agency of the Reich Fuehrer-SS and Chief of the German Police, which for the duration of its service in Greece is under the command of the Military Commander Greece"..... The Higher SS-and Police Chief receives directives and instructions for the field of activity assigned to him from the Reich Fuehrer-SS and Chief of the German Police and carries them out independently while making current and punctual reports to the Military Commander Greece, as far as he gets no restricting orders from the latter. The Military Commander must be informed in time of the reports submitted by the Higher SS-and Police Chief to the Reich Fuehrer-SS and Chief of the German Police". gypsies prima facie as elements of insecurity in accordance with the order of the Fuehrer at the beginning of the Russian campaign.
be noted that it was carried on under the jurisdiction of the Commanding Generals to whom these groups were attached. Therefore, in all tasks, including these which belonged in a stricter sense to the Security Police and the SD, this jurisdiction had to be respected, which means that these tasks could be carried out only with the express will or with the tacit consent of the commanding generals. This applies especially to the commanding general's capacity as supreme judicial authority for the population in his area of jurisdiction. It is true that the use made by the commanding generals of this capacity varied considerably in their dealings with the Einsatzgruppen and Einsatzkommandos; in certain areas the organs of the Army invariably gave their consent to all executive acts affecting the population. In other operational areas the fact that the command authorities occasionally interferred in pending proceedings or gave orders for special measures concerning the population, showed that the commanding generals were not only conscious of their superior jurisdiction and position, but also made use of it.
It is with deep regret that we clarify these points. For the Defense, however, they are of great importance with respect to the possibility of disobeying given orders. The leaders of the Einsatzgruppen and Kommandos were executive officers with instructions. Their authority as to decisions started only with the very execution of their orders. For them there was no real possibility at all to prohibit the execution of orders themselves. Actually, there was merely the theoretical possibility for the Army Commanders to examine at their discretion - an account of their authority and their task concerning the security of their operational area, on account of their responsibility for safeguarding the front-line operations - the question of whether the actual killing of the people selected endangered their tasks.
If they had come to this conclusion they would have "been authorized to give instructions to prohibit liquidations. Likewise it is clear that, again theoretically, only intervention of the Commanders-in-Chief with the Fuehrer was possible. Defense is going to prove: 1.) the continuous close cooperation of the Army groups with the Einsatzgruppen and Kommandos. Orders of the Army Commanders to secure objectives, to carry out inspections, etc., and also other military tasks, e.g. investigations concerning anti-partisan measures, recruitment of Tartars for front-line service, will show the close connection between the Commanding General and Einsatzgruppe or Kommandos.
Finally, evidence will be submitted for the following: quently, also Supreme Military Judiciary authorities. (Oberste Gerichtsherren) for their areas, i.e., they made decisions affecting liberty, life and death. That they were conscious of this fact in relation to the civilian population is clearly shown by individual facts already mentioned or still to be mentioned. mentioned by the Prosecution were known to the responsible Commanding Generals. Written or oral reports were given in many cases about such executions by Einsatzgruppen and Kommandos to the Commanding Generals. executions, or took part in them, or gave special orders in individual cases.
IV. The prosecution has charged the defendants not only with crimes against humanity and with war crimes but also with membership in an organization that has been declared criminal.
Under Count 3, Mr. Ferencz stated:
"The judgment of the International Military Tribunal established the fact that the SS, the Gestapo, and the SD are criminal organizations." In reaching its decision, the Tribunal made frequent reference to the acts of the Einsatzgruppen. In the face of this, the Defense, will demonstrate the following: "SD", even by official authorities of the NSDAF and of the State, by all military authorities up to Adolf Hitler himself, a completely false conception as to the Actual meaning of "SD" arose among wide circles of the German people, especially during this war, above all, however, abroad, and especially among the occur, occupation authorities.
The error is based on the fact that the term "SD" had the two following meanings:
A. It is the term for a special news service organization, which collected, evaluated, and Submitted. reports to the appropriate authorities of the State and of the Party. This news organization which did not have any executive police powers either before or during the war, exercised its functions within the SS, that is within the Party its members were employees of the The party and were paid by the latter, just as in general, the entire budget was met not by the State but by the Party, that is, the Reich Treasurer.
THE PRESIDENT: May I interrupt, please, If you say that Hitler himself mis-used the term SD --
DR. ASCHENAUER: I would like Your Honor to repeat what he said. The system was out of order.
THE PRESIDENT: Yes. I understood you to say that Hitler himself misused the term "SD"?
DR. ASCHENAUER: Yes, that is so.