The objection is overruled.
A Mr. Prosecutor, I have already replied to that question during my direct examination by stating that I considered the order wrong, but I was under military coercion and carried it out under military coercion knowing that it was given in a state of emergency and the measures were ordered as emergency measures in self-defense. The order, as such, even now, I consider to have been wrong, but there is no question for me whether it was moral or amoral, because a leader who has to deal with such serious questions decides from his own responsibility and this is his responsibility and I cannot examine and not judge. I am not entitled to do so.
MR. HEATH: If Your Honors please, that is exactly the state of the record and I respectfully submit that we yet have no answer. For this reason: the witness has said he thought it was a wrong order, because it was difficult or impossible of execution, when he was told -
THE WITNESS: I didn't say that.
MR. HEATH: When he was told about it at Pretzsch, he thought it was impossible of execution. I think the very issue which he seeks to avoid is the crux of this question, namely, not whether it was a difficult order, or a wise order, from the standpoint of his, but whether it was right or wrong. The issue is a morale one. The coercion of superior orders goes to the moral coercion and not to the wisdom of the order.
THE PRESIDENT: But, Mr. Heath, hasn't he answered your question?
MR. HEATH: He has said -- he said it was a wrong order.
THE PRESIDENT: Now, what more do you want. Put another specific question and we will see if he hasn't answered. It appeared to the Tribunal that he has answered, but put the question to him.
Q You have said it was a wrong order. I want you only to tell me whether it was morally wrong or morally right.
THE WITNESS: May I correct beforehand that in my reply I never said whether it was a difficult or not a difficult order. That is an ssumption which I don't want to have in the record.
THE PRESIDENT: Then it must have been an error in transmission, because the Tribunal is under the impression that yesterday you stated in your original protest against the order that it was impossible of fullfilment or very difficult of fullfilment. Are we in error in that impression?
THE WITNESS: I said, "inhuman", Your Honor.
THE PRESIDENT: I see, very well. The record indicates just what was said. Now do you want to put another question?
Q I put the same question. Was the order a moral one: was it morally right, or was it morally wrong? to decide on the moral issue, but I considered it to be wrong because such factors are able to bring such results which may mave immoral affects and, in my opinion are bound to have immoral effects. But I fo not think I am in a position to jusge the responsibility of a statesman who, as shown in history, rightly, saw his people before the question of being or not being, to jusge whether a measure in such a fight against fate, for which this leader is responsible, is moral or immoral.
THE PRESIDENT: Do we extract from all that you have said, this thought@ That you are not prepared to pass upon whether the order was morally right or morally wrong, but you do say that the order could only lead to very bad circumstances which would be injurious to Germany
WITNESS: Not only to Germany itself, your Honor. I consider this to be much more serious, even. I see the order which Hitler gave, not as a first cause for this order, but I already consider it as a result of logical developments which may have started - or at least became very obvious - when in 1935 in our opinion Germany was encircled. Such measures must further such developments -- for example, to the effect that instead of an understanding, - hatred, revenge and an exaggereated effort to gain security will become very strong and, therefore, the general insecurity of the word will be increased. For example, causing effects - as can be described with the name "Morgenthau Plan" or requests, as such that Germany is be weakened in its greatness and strength so that this people will no longer endanger the security of any one. That is what I meant by "effect" which might result from such factors, because they are intended for this: while I mean that throughout historical development at some time a chain of hatred or mistrust has to be broken in order to start anew somewhere, and that, for example, I hoped would be achieve through national individual people, but here the chain is continued, a sequence is continued, which instead of reconcialiation breeds more hatred, and increase the feeling for security.
That is my opinion on this.
MR. HEATH: May I put the question once more, if Your Honor please?
THE PRESIDENT: Yes, you may put the question and then the witness may answer it directly, or, if he feels he has already answered it, he may so indicate, or he may refuse to answer it.
We will see what happens. BY MR. HEATH:
Q I do not ask you for a judgment of Hitler's morale; I ask you for an expression of your own moral conception.
The question is not whether Hitler was moral; but what, in your moral judgment, was the character of this order: Was it a moral order, or an immoral order? abstractly for a moral estimation or nothing - but a moral estimation and judgment about a deed of Hitler. And for that reason the judgment which I may make is judgment on the deed of Hitler. Your Honor. You surrendered your moral conscience to Adolf Hitler, did you not?
A No. But I surrendered my moral conscience to the fact that I was a soldier, and, therefore, w wheel in a low position, relatively, in a great machinery; and what I did there is the same as is done in any other army, and I am convinced that in spite of facts and comparisons which I do not want to mention again, the persons receiving the orders and all armies are in the same position- until today, until this very day.
your moral scruple. It was the fact that you had surrendered to Hitler the power to decide moral questions for you -- is that right?
A That is an argumentation from you which I never said. No, it is not correct. But as a soldier I got an order, and I obeyed this order as a soldier. required - I suppose you did -- if you had a moral conscience you had to judge the orders that came to you. You got an order from Adolf Hitler, and you tell us you accepted his moral judgment absolutely, whether right or wrong, - is that right? I think my answer will not be changed by the fact that you want me to make a certain reply.
Q Let us put it in the negative, then. You refuted to make any moral judgment, and you refuse now to make any moral judgment then, and you refuse now to make any moral judgment on this matter?
Q I am not asking you the reason. I am asking whether you refuse to express a moral judgment as to that time, or as of today. BY THE PRESIDENT:
Q Yesterday Mr. Heath put a question to you which perhaps we did not allow to be answered - but in view of what has now been stated perhaps we might go back just a moment. He asked you whether, when you received this order, any question arose in your mind as to its authencity namely, was the order of such a nature that it caused you to hesitate as to whether there could have been an error in it and would cause you to go higher than the officer who had given you this mission, in order to determine, positively, whether it was uathentic or not. You remember that discussion?
Hitler, that is, it was Hitler's, it did not give it to you, but it came from Streckenbach.
Q Yes, very well. And his rank was not so high that an incredible statement by him could be questioned? to such extent that you wanted to inquire whether it truly was an order given by Hitler or not; or not, or were you so satified that Hitler knew what to do, and the circumstances were such that even that order could be a logical one, that you accepted it without misgivings, without questioning, without doubts, and without investigation? dispersed, as I explained yesterday, through reaction-to wards Streckenbach, and Streckenbach argumented on all those questions which your Honor just mentioned. So that during this discussion all the questions have been worked on already, and finally. No other solution was loft to us, than according to Streckenbach's experience through his discussion with Hitler it is quite obvious that there is a Fuehrer Order here which under no circumstances can be taken back, or can be cancelled.
Q You indicated a lack of desire to answer Mr. Heath's question on the moral issue. You indicated that it wans't for you to decide the moral question at all. But with every order, with every demand, or request, there instinctively goes a moral appraisement -- you may agree whith it or not --; so when this order was given to you to go out to kill, you had to appraise it, instinctively. The soldier who goes into battle knows that he must kill. But he understands that it is a question of a battle with an equally armed enemy. But you were going out to shoot down defenseless.
Now, didn't the question of the morality of that enter you mind? Let us suppose that the order had been -- and I don't mean any offense in this question -- suppose the order had been that you should kill your sister. Would you not have instinctively morally appraised that, order as to whether it was right or wrong -- morally, not politically, or military but as a matter of humanity, conscience, and justice between man and man?
from the others. I believe during my direct examination plenty of questions of this kind have been dealt with. Probably with the occurences of 1943, 1944, and 1945 which I had - where with my own hands I took children and women out of the burning asphalt myself, with my own hands, and with my own hands I took big blocks of stone from their stomachs, of pregnant women; and with my own eyes I saw 60,000 people die within 24 hours -- that I am not prepared, or in a position to give today a moral judgment about that order, because in the cause if this connection these factors seem to me to be above a moral standard. These years are for me a unit separate from the rest. Full of ruthlessnot in position to take one occurence or rather a small event, of what I experienced and to isolate it, and to value it morally in this connection. I ask, you to understand that from a human point of view.
Q Your answer gave a certain date. You mention the years 1943, 1944, 1945. Naturally, these were years following 1941, when you were confronted with that issue.
MR. WALTON: One thing further, Your Honor.
THE PRESIDENT: Well, let's wait until the recess is over and determine whether you gave anything else.
DR. HEIM: Your Honor, I ask you to permit defendant Blobel to be absent from the Tribunal tomorrow forenoon and afternoon so that I can prepare with him his own examination.
THE PRESIDENT: The request wilt be granted.
THE MARSHAL: The Tribunal will be in recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Does the Prosecution have any further questions?
MR. HEATH: Your Honor, please, is this Court going to pursue the question which it asked before the recess, or is the Court through questioning the witness?
THE PRESIDENT: Oh, I thought we had exhausted that inquiry, unless-
MR HEATH: The Court made inquiry on which it got no response from the witness, which was, I think, the ultimate question which Your Honor was putting to him, namely, if you get an order from Hitler to kill your sisten, would you have acted on the order, or would you have had any conflicting moral judgment about the nature of the order? There was no response, and I don't know whether the Court thinks we have gone far enough with the questioning, or, whether we may ask for a response to that question?
THE PRESIDENT: The Court would not insist on the question being answered because of its very nature, but it seems to me that it is a relevant question, but the witness may or may not answer, as he sees fit.
MR. HEATH: May we then put the question to him, if Your Honor, please? BY MR HEATH: and blood, would you have executed that order, or not?
A I consider this question frivolous. The question which is being put to me here by the Prosecution, it deals with people - - with life and death of people, and of millions of people who are near starvation even today, therefore, I can only designate and state that the question is frivolous. killing order, a moral question arises, but if thousands of human beings are involved in it, you can see no moral questions; it is a matter of numbers?
A Mr. Prosecutor, I think you are the only one to understand my answer in this way, that it is not a matter of one single person, but from the point of departure events have happened in history which among other things have led to deeds committed in Russia, and such an historical process you want me to analyze in a moral way. In fact, I do, however, refuse moral valuation with good reasons as outlined sofar as my own conscience is concerned. I don't refuse answering this last question because of just one person; it is, in order to bring morality on the basis of numbers, but because the Prosecutor now addresses me personally....
Q I shall not address you personally. Suppose you found your sister in Soviet Russia, and your sister were included in that category of gypsies, not a Jewish - - but in, gypsy band, and she was brought before you for slaughter because of her presence in the gypsy baud; what would have been your action? She is there in the process of history, which you have described?
DR. ASCHENAUER: I object to this question and I ask that question not to be admitted. I think the subject has been dealt with sufficiently so that no other questions are necessary. This is no question for cross examination.
MR. HEATH: Your Honor I believe we have met tests which we applied by putting one of his own flesh and blood in exactly the alleged historical stream in which he can form no judgment. I asked him now whether if he found his own flesh and blood within the Hitler order in Russia, what would have been his judgment, would it have been moral to kill his own flesh and blood, or immoral.
DR. ASCHENAUER: I ask for a ruling of the Tribunal upon my objection.
THE PRESIDENT: The question indubitably is extraordinary one, and ordinarily would not be, tolerated, in any trial, outside of a trial like this, which is certainly an extraordinary and a phenominal one. We are dealing her with a charge, which to the knowledge of this Tribunal has never been presented in the history of the human race of a man who is here charged with the responsibility for the snuffing out of lives by the hundreds of thousands - - not hundreds of thousands, but ninetythousand.
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.