He asked, at least, for postponement of the executions. The Lieutenant in charge of the battalion refused to wait. The report continues:
"For the rest, as regards the executions of the action, bordered already on sadism.
The town itself offered a picture of horror during the action.
With indescribable out of their dwellings and herded together.
Everywhere the corpses of shot Jews accumulated.
... In conclusion same in those of the White Ruthenians.
Anything of use has been taken away.
On the basis of statements of the "A major of the Finance Department reported that a Jewish rubels to have her father released.
This girl is said to have actually gone everywhere to obtain the money."
tion reach the soldiers holding the fighting frontiers. Yet, many vehicles loaded with ammunition for the armed forces were left standing in the streets of Sluzk because the Jewish drivers, already illegally forced into this service, had been liquidated by the Execution Battalion. Although the very life of the nation depended on the continued operation of every type of food-producing establishment, 15 of the 26 specialists at a cannery were shot. The Commissioner General inquired of the Reich Minister of Occupied Eastern Territories if the liquidation of Jews in the East was to take place without regard to the economic interests of the Wehrmacht and specialists in the armament industry. The Reich Minister replied:
"Clarification of the Jewish question has most likely unconsidered in the settlement of the problem."
investigation into the Jewish Liquidation Program, reported to General of the Infantry, Thomas, Chief of the Industrial Armament Department, that the project was a big mistake from the German point of view. In the Ukraine he found that the Jews represented almost the entire trade and even a substantial part of the manpower.
"The elimination, therefore, necessarily had far D U S T R Y (Production for sypplying the troops)."The report goes on:
"The attitude of the Jewish population was anxious obliging from the beginning.
They tried to avoid tion.
That they hated the German administration and surprising.
However, there is no proof that Jewry acts of sabotage.
Surely, there were some terrorists a danger to the German armed forces.
The output produced German administration."
the executions invariably took place not during the stress and turmoil of fighting or defense action, but after the fighting had ceased:
"The Jewish population remained temporarily unmolested shortly after the fighting.
Only weeks sometimes months executed a planned shooting of Jews.
... The way these children of all ages were carried out was horrible.
The Union.
So far about 150,000 to 200,000 Jews may have to the Reichskommissariat (RK); no consideration was given to the interests of economy."
In a final appeal to reason this German inspector cries out:
"If we shoot the Jews, let the prisoners of war perish, remains unanswered:
W H O I N A L L T H E W O R L D E C O N O M I C V A L U E S H E R E?" No one answered the question of the inspector; Nor did any one answer the question of Humanity as to why those oceans of blood and this burning of a continent.
Reason, with its partner Conscience, had been lost long ago in the jungle of Nazi greed and arrogance, and so Madness ruled, Hate marched, the sky reddened with the flames of destruction and the World wept - and still weeps. treaty for the Renunciation of War, more generally known as the Kellogg-Eriand Pact, wherein sixty-eight nations agreed:
"Article I. The High Contracting Parties solemnly "Article II.
The High Contracting Parties agree that pacific means."
fifth decade of the twentieth century witnessed a conflict at arms of global proportions which wrought such devastation on land and sea and so convulsed organized society that, for many decades yet to come, men, women and children in every land will feel and suffer its consequences. and the United States met in London and entered into an agreement for the trial of war criminals ascertained to be such. Nineteen other nations expressed their adherence to this agreement. by the London Agreement, after a trial which lasted ten months, rendered a decision which proclaimed that Germany had precipitated World War II and, by violating international commitments and obliga tions, had waged aggressive war.
The International Military Tribunal, in addition to rendering judgment against specific individuals, declared certain organizations, which were outstanding instruments of Nazism, to be criminal. representatives of the same four above-mentioned nations and constituting the highest legislative authority for Germany, enacted Law No. 10, concerning "Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity". This Tribunal came into being under the provisions of that Law, but while the Tribunal derives its existence from the authority indicated, its jurisdiction over the subject matter results from International Law valid long prior to World War II. to this case. In view of their representations and the gravity of the case itself, the various phases of the law will be discussed with more detail than perhaps ordinarily the situation might require. and impartial trial, which the Tribunal has endeavored throughout the long proceedings to guarantee to than in every way. The precept that every man is presumed innocent until proved guilty has held and holds true as to each and every defendant. The other equally sanctified rule that the Prosecution has the burden of proof and must prove the guilt of the accused beyond a reasonable doubt has been, and is, assured. began on September 29. The Prosecution required but two days to present its case in chief because its evidence was entirely documentary. It introduced in all 253 documents. 136 days transpired in the presentation of evidence in behalf of the defendants, and they introduced, in addition to oral testimony, 731 documents. The trial itself was conducted in both English and German and was recorded steno graphically and in both languages.
The transcript of the oral testimony consists of more than 6,500 pages. An electric recording of all proceedings was also made. Copies of documents introduced by the Prosecution in evidence were served on the defendants in the German language. tely in the latter part of the Opinion, but since many items of defense, especially in argumentation, are common to more than one of the defendants they will be discussed collectively to avoid repitition during the individual treatments. It is to be emphasized that the general discussion and collective description of acts or defenses of defendants need not apply to each and every defendant in the box. Any general reference will necessarily apply to a majority of them but that majority need not always consist of the same persons. As already stated, the individual treatments will appear at the end.
THE PRESIDENT: The Tribunal will now be in recess until 1:45.
(A recess was taken until 1345 hours.)
(The Tribunal reconvened at 1345 hours.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Judge Dixon will continue with the reading of the Judgment.
JUDGE DIXON: different headings and will be discussed in that order by the Tribunal: Jurisdiction, Self Defense and Necessity, Superior Orders and Non-Involvement.
The substantive provisions of Control Council Law No. 10 which are pertinent in this case, read as follows:
Art. II, 1. (b) War Crimes. Atrocities or of (c) Crimes against Humanity.
(d) Membership in categories of a 2. Any person without regard to nation of this Article, ifhe was (a) a principle or (b) was an accessory same or (c) took a consenting part therein or (d) was connected with commission or (e) was a member of crime or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (in cluding General Staff) position in such country."
Control Council Law No. 10 was attacked by Defense Counsel at the beginning of the trial, at the end of the trial, and even after all evidence and documentation had been received and arguments closed. In a motion filed February 20, 1948, counsel renewed their representations that this law was inapplicable to the instant case because of the fact that Russia, on August 23, 1939. signed a secret treaty with Germany agreeing to a division of Poland. In the argument supporting their motion, Counsel do not dwell on the fact that in signing the agreement with in Russia, Germany naturally became a party to the very transaction involved. However, in spite of this very definite concurrence by Germany in Russia's acts, insofar as they arose out of the so called secret agreement, Defense Counsel submitted that Russia disqualified herself from membership in the Allied Control Council and that, therefore, any agreement reached with her as one of the signatory powers must necessarily be void. The argument is wholly lacking in merit. was fully considered and decided by the International Military Tribunal in its decision of September 30,1946:
" The Tribunal is fully satisfied by the humanity."
precipiatated, as the International Military Tribunal pointed out, a global war whose effects are visible today throughout the world. The legal consequences drawn from the International Military Tribunal *** *** *** *** may not be altered by the assertion that someone else may also have been at fault.
At the final argument* in the case various Defense counsel spoke of international events which followed the ending of the war. It is intended as no offense to Defense Counsel to say that is would seem they are seeking to fish in troubled waters, or what they assume to be an agitated sea. Nonetheless, the Tribunal must refuse representations and arguments upon that subject. The defendants in this case stand accused of crimes which occured during the war. History's footsteps since the termination of World War II can not obliterate the blood marks of that collossal and tragic conflict. Counsel's representations, as in justice it should not, it does not follow that everything was relevant to the issue in the case. It is only by hearing an argument that one can conclusively determine its materiality or lack of materiality. However, the Tribunal now decides, after hearing and analyzing all the evidence, that discussions in this case on the ante-war relationship between Germany and Russia are Immaterial. It further decide* that representations on the post-war relationship Russia and the rest of the world are equally irrelevant. treaty with Germany prior to the Polish war, the Defense said or presented nothing in the way of evidence to overcome the well considered conclusion of the International Military Tribunal that Germany started an aggressive war against Russia.
On the basis of this finding alone, Russia's participation in the Allied Council which formulated Law No. 10 was legal and correct and in entire accordance with International Law.
Furthermore, Defense Counsel's representations in this respect have no bearing on the charges in this Indictment. They are not defending Germany as a nation in this trial. They are representing individuals accused of specific crimes under Law No. 10, which, like the Charter of the International Military Tribunal, was not an arbitrary exercise of power of the victorious nations but the expression of Internation Law existing at the time of its creation. Control Council Law No. 10 is but the codification and systemization of already existing legal principles, rules and customs. Under the title of Crimes against Humanity, these rules and customs are the common heritage of civilized peoples, and, in so far as War Crimes are concerned, they have been recognized in various International Conventions, to which Germany was a party, and they have been International Law for decades if not centuries. As far back as 1631, Grotius, in his De Jure Belle ac Pacis, wrote:
"But.....far must we be from admitting the all Right ceases in war; nor when under Bounds of Justice and Fidelity."
The German author Schaetzel, in his book "Bestrafungen nach Kriegsgebrauch, published in 1920, stated:
".....The Laws and Customs of Warfare are International Law.
The Imperial Decree (of 1899) speaks ofpunishment 'in accord authorities' (Art.
2). This shows clearly a source of law.
They are binding on in "The customs of war are substantive penal law as good as the State's penal legislation."
Law No. 10 with Latin maxim Nullem crimen sine lege, nulla peona sine lege. It is indeed fundamental in every system of civilized jurisprudence that no one may be punished for an act which was not prohibited at the time of its commission. But it must be understood that the "lex" referred to is not restricted to statutory law. Law does, in fact, come into being as the result of formal written enactment and thus we have codes, treaties, conventions, and the like, but it may also develop effectively through custom and usageand through the application of Common Law. The latter methods are no less binding than the former. The International Military Tribunal, in its decision of September 30, 1946, declared:
"International Law is not the product of a changing world."
a substantial degree and one such subject is the law of Land Warfare which includes the Law of Belligerent Occupation because belligerent occupation is incidental to warfare. The Hague Regulations, for instance, represent such a codification. Article 46 of those Regulations provides with regard to invading and occupying armies that:
"Family honor and rights, the lives of must be respected."
This provision imposed obligations on Germany not only because Germany signed signed the Hague Convention on Land Warfare, but because it had become International Law binding on all nations. before it does not depend alone on this specific pronouncement of International Law. As already indicated, all nations have held themselves bound to the rules or laws of war which came into being through common recognition and acknowledgement.
Without exception these rules universally condemn the wanton killing of non-combatants. In the main, the defendants in this case are charged with murder. Certainly no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder. a question which will be determined later, but it cannot be said that prior to Control Council Law No. 10 there existed no law against murder. The killing of a human being has always been a potential crime which called for explanation. The person standing with drawn dagger over afresh corpse must, by the very nature of justice, exonerate himself. This he may well do, advancing self defense or legal authorization for the deed, or he may establish that the perpetrator of the homicide was one other than himself. killings to be called upon for an explanation -- and to whom are they to render explanation so that their innocence or guilt may be determined? Is the matter of some one million non-military deaths to be denied judicial inquiry because a Tribunal was not standing by, waiting for the apprehension of the suspects? governed the Nuremberg trials, have only provided a machinery for the actual application of international law theretofore existing. In the comparatively recent Saboteurs Case (Ex parte Quirin 317 U.S., 1, 1942) the Supreme Court of the United States affirmed that individual offenders against the rules and customs of war are amenable to punishment under the common law of nations without any prior designation of tribunal or procedure. In this connection reference may also be made to trials for piracy where, going back centuries, the offenders, regardless of nationality, were always tried in the arresting state without any previous designation of tribunal.
of the rules of land warfare outlined in the Hague Convention, even though the Convention is silent on the subject of courts. The International Military Tribunal speaking to this subject said:
"The law of war is to be found not ticed by military courts."
All civilized nations have at times used military courts. Who questions that Prussia during the Franco-Prussian war and Germany during World War I and World War II utilized military courts to try subjects of other nations charged with violating the rules and laws of war? diction over individuals in its actual custody charged with violation of international law. And if a single nation may legally take jurisdiction in such instances, with what more reason may a number of nations agree, in the interest of justice, to try alleged violations of the international code of war? one would be so bold as to suggest that what occurred between Germany and Russia from June 1941 to May 1945 was anything but war, and, being war, that Russia would not have the right to try the alleged violators of the rules of war on her territory and against her people. And if Russia may do this alone, certainly she may concur with other nations who affirm that right.
Thus, Russia'a participation in the formulation of Control Council Law No. 10 is in accordance with every recognized principle of international law, and any attack on that participation is without legal support. The Tribunal also inds and concludes that Control Council Law No. 10 is not only in conformity with International Law but is in itself a highly significant contribution to written International Law.
from International Law do not apply to individuals. It is a fallacy of no small proportion that international obligations can apply only to the abstract legal entities called States. Nations can act only through human beings, and when Germany signed, ratified and promulgated the Hague and Geneva Conventions, she bound each one of her subjects to their observance. Many German publications made frequent reference to these international pledges. The 1942 edition of the military manual edited by a military judge of the Luftwaffe, Dr. Waltzog, carried the following preface:
"Officers and noncoms have, before taking Law.
Every troop leader has been con questions such as the following:
Am I entitled to take hostages; How do I have to behave if bearing a flag of truce;with a franctireur; What may I do as a permitted ruse of war; What may I requisition; What is, in turn, already looting and, therefore, forbidden;lays down his arms; How should enemy and after they have landed?"
An authoritative collection of German Military Law ("Das gesamte Deutsche Wehrrecht"), published since 1936 by two high government officials, with an introduction by Fieldmarshal von Blomberg, then Reich War Minister and Supreme Commander of the Armed Forces, carried in a 1940 supplement this important statement:
"The present war has shown, even more tries to cause confusion; this is are binding on the German conduct of war."
imposed by International Law in his very paybook which carried on the first page what was known as "The Ten Commandments for Warfare of the German Soldier". Article 7 of these rules provided specifically:
"The civilian populations should not be "The soldier is not allowed to loot or to destroy."
for their clients, several defense counsel have submitted that this trial in effect represents a trial of the victors over the vanquished. This objection dissolves so quickly under a serious glance that one wonders if it was presented reflectively. In the first place, the defendants are not being tried in any sense as "vanquished individuals" any more than it is to be assumed that a person taken into custory by police authorities is to be regarded as a "vanquished person". Wars are fought between nations as such and not between individuals as such. In war there is no legal entity such as a "defeated individual" just as there is no judicial concept of a "victorious individual". The defendants are in court not as members of a defeated nation but because they are charged with crime. They are being tried because they are accused of having offended against society itself, and society, as represented by international law, has summoned them for explanation. The doctrine that no member of a wronged community may try an accused would for all practical spell the end of justice in every country. It is the essence of criminal justice that the offended community inquires into the offense involved. the Tribunal in this particular phase of the case, as in all phases, reference is made to the speech by Mr. Justice Jackson in the International Military Tribunal trial in which he said:
"We must summon such detachment and to posterity as fulfilling humanity's aspirations to do justice."
Tribunal says at the termination of the current trial.
Dr. Aschenauer, speaking for the defendant Ohlendorf and such others whose cases fall within the general pattern of the Ohlendorf defense, declared that the majority of the defendants committed the acts with which they are charged -
"(a) In presumed self defense on behalf of a third party.
(Putativnothilfe is the language).(b) Under conditions of presumed necessity danger, (so-called 'Putativnotstand')." committing the acts charged to them, acted in self defense for the benefit of a third party, the third party being Germany.
In developing this theme of defense for Germany, Dr. Aschenauer insisted that this Tribunal apply his interpretation of Soviet Law. One can not avoid noting the paradox of the defendant's invoking the law of a country whose jurisprudence, ideologies, government and social system were all declared antagonistic to Germany, and which very laws, ideologies, government and social system the defendants, with the rest of the German armed forces, had set out to destroy. However, it is the prerogative of Defense Counsel to advance any argument whichhe deems appropriate in behalf of his client and the fact that Dr. Aschenauer considers Soviet Law more modern than German Law cannot fail to be interesting.
"It has thus achieved the aim which the at for a long time.
Acts of necessity are not he averted by any other means."
be allowed unilaterally to abrogate the laws and customs of war. And it takes no great amount of foresight to see that with such facile disregarding of restrictions, the rules of war would quickly disappear. Every belligerent could find a reason to assume that it had higher interests to protect. As untenable as is such a proposition, Dr. Aschenauer goes even further:
"If the existence of the State or of may act for their protection."
Norway and there kill a Norwegian on the basis that he, the Abyssinian, was motivated only by the desire to protect his country from an assumed aggression by the Norwegian.
And that is not all:
"An error concerning the prerequisites very least -- a mitigating circumstance."
of assumed necessity to protect his nation's interest, but it developed later that he killed the wrong person, he would be absolved because he had simply made a mistake. The fact that this astounding proposition is advanced in all seriousness demonstrates how desperate is the need for a further revaluation of the sacredness of life and for emphasizing the difference between patriotism and murder.
Dr. Aschenauer does not claim that the actual circumstances supported Staatsnothilfe (defense of endangered State), but he submits that this state of affairs does not render the deeds of the defendants any less legal provided the defendants assumed that conditions existed for the application of the above-mentioned legal concepts. In support of this argument he points out what he regards the objective conditions and the subjective conditions of the German-Russian war:
"The cast European Jewish problem as part of the problem of Bolshevism;origin and import of the defendants' lem 'Bolshevism versus Europe' could only be brought about by a 'solution' execution of the Fuehrer-Order."
this theory.
Dr. Aschenauer's legal position on assumed self defense has been discussed not because it corresponds with any accepted tenets of international law but only for the purpose of demonstrating that under any law the acts of his client and others falling in that category cannot by the widest stretch of the imagination be justified as an act of self defense in behalf of German. cordance with well-established rules. And there is nothing in the most elementary rules of warfare to permit the killing of enemy civilians simply because they are deemed "dangerous". But in killing, e.g., Jews, the defendants did not succor Germany from any real danger, or assumed danger. Although they declared that the Jews were bearers of Bolshevism, it was not explained how they carried that flag. Nor did any one attempt to show how, assuming the Jews to be disposed towards Bolshevism, this per so translated itself into an attack on Germany. The mere adherence to the political doctrine of Bolshevism did not of itself constitute an aggression or potential aggression against Germany.
circumstances of the German-Russian War, but in point of fact Jews were oppressed in Germany and German-occupied territory long prior to that war. The treatment of Jews by Germany and those representing the Third Reich did not depend on the German-Russian at all. The circumstance that Jews were living in Russia when the German forces invaded Russia was simply a coincidence which did not call for their annihilation. If merely being an inhabitant of Russia made that inhabitant a threat to Germany then the Einsatzgruppen would have had to kill every Russian, regardless of race.
considered as mortal enemies and subject to exeuction only those Russians who were members of the Communist party, then even according to this theory those Jews who were not members of the Communist Party should have been spared, as were those Russians who were not members of the Communist Party. The record shows, however, that when it came to a Jew, it did not matter whether he was a member of the Communist Party or not. He was killed simply because he was a Jew.
THE PRESIDENT: The presiding Judge continues with the reading of the judgment.
THE PRESIDENT: Mass killings for Ideological Reasons Dr. Reinhard Maurach, Professor Criminal Law and Eastern European Law was called by the defendant Ohlendorf to expound the international law underlying the position of the various defendants maintaining Ohlendorf's view.
Some sections o his treatise, submitted as Ohlendorf Document No. 38, supported the prosecution rather than the defense. On three occasions he condemned mass killings for ideological reasons:
"This is the place to say with special by any 'collective suspicion', of any "It has already been emphasized that "General extermination measures cannot be matter how exceptional."
First he stated that a state of war as such does not vindicae extraordinary actions, but then in a superb demonstration of legal acrobatics he declared that if the war aims of one of the opponents are total, then the opponent is vindicated in claiming self defense and state of necessity, and therefore may introduce the mass killings he had previously condemned.
fact that Germany waged an undeclared war against Russia, that Germany adduced to support the theme that, after being invaded, Russia's actions were such as to call for the executions of which the Prosecution complains. introduced. Among them were documents on the Soviet Foreign Policy, statements emanating from the Kremlin, articles from the Russian Encyclopedia, and speeches made by Stalin. All these exhibits are strictly irrelevant and might well be regarded as a red herring drawn across the trail. But the Tribunal's policy throughout the trial has been to admit everything which might conceivably elucidate the reasoning of the defense. Thus, the excerpt from Stalin's speech of July 3, 1941, quoted in Ohlendorf's document book, will be cited here:
"In the areas occupied by the enemy, trains.
Unbearable conditions must be Germany as an ordinary war.
It is not only a war between two armies.
It is at Troops."
the execution of German prisoners of war or the shooting of wounded persons, or the mass killing of Germans in German territory occupied by Russia, or anything which would justify the allegedly retaliatory killing of non-combatant Jews.