DR. ASCHENAUER: No, your Honor, it is this way, I describe the presumed emergency state in which the defendants found themselves and which can be explained from the international law in existence. I must prove how the defendants reached the conviction that the Fuehrer order had to be executed, and one part of this proof is the practical attitude toward international law in existence, I must prove how the defendants reached the conviction that the Fuehrer order had to be executed, and one part of this proof is the practical attitude toward international law represented by the Russian war leadership.
THE PRESIDENT: Then you are going behind the Fuehrer order itself. You are going one step further than the defendant himself did in his defense, is that correct?
DR. ASCHENAUER: No, I don't go any further than the defendant himself did. The defendant said that the execution of the order can only be explained for the existing special circumstances, and the special conditions then existing were a result of the war emergency state then existing.
THE PRESIDENT: But he did say that he protested this order.
Mr. Ferencz.
MR. FERENCZ: I would like to point out to Dr. Aschenauer that this question was raised before the International Military Tribunal and it was held, by the. Tribunal there that regardless whether Russia was bound by The Hague Convention or not, Germany was so bound. So to raise the question here again is completely irrelevant to any of the issues we have brought and outside the jurisdiction of this case.
DR. ASCHENAUER: Your Honor, may I state my attitude towards this objection? This is one of the basic problems in Case 9. In Case 9 it isn't a matter of any facts, but of activities of persons in Russia, one cannot legally evaluate these activities by examining the actual overall situation if one does riot look into the circumstances, the knowledge and the experiences of the defendants, which induced them to commit those deeds. The Prosecution argues that the question of an emergency, and of a presumed emergency is superfluous since the IMT verdict established a state of aggressive war against Russia.
In such case there would be no state of emergency for the attacker. Whether the IMT verdict about the aggressive war against Russia did justice to the actual historical situation in 1941, I leave outside of this trial. This IMT verdict does not touch upon the legal situation of the 23 defendants here in Case 9. self-defense cannot be denied to them in face of the situation in which the citizens of the State found themselves after the speeck of their Chief of State of the 22nd of June '41, except if it were proved to them that they knew, contrary to the speech of Hitler, that, it was a purely aggressive war, that they wanted it, and that they were preparing for it. of the Defendant Ohlendorf with all clarity. Here at the latest the Prosecution should have brought up its objections. Nothing of the kind happened. This evidence admitted without the slightest objection, and now that this line of thought is to be pursued and confirmed by an expert opinion, and since this is being objected to by the Prosecution, it can have only one reason, that after the defense of the Defendant Ohlendorf, the great importance of these points have become clear to them. Furthermore, it is doubtlessly true that international law and international customs of war have been established for cases of war only because the one partner always will plead an emergency and unrestricted warfare would be the result. International emergency and international self-defense are independent of the fact whether anyone is the attacker or the one being attacked and is independent of any such subsequent findings. Finally it happens that one of the war partners, apart from the cause of the war, declares himself not bound by international law or by the established customs of war. Maurach's testimony is to show that this situation applies to Germany, and especially the intentions, motives, and aims of the defendants in reference to the Russian conduct which was to be expected from the theory and practice applied before 1941.
As far as the intensity of the criminal will of the defendants is concerned, it is legally relevant and necessary to find out for what motives they acted. The clarification of this psychological question plays an important part at least as far as the sentence is concerned. The cutting off of any evidence which tries to explain the motives of the perpetrator is therefore equivalent to an inadmissible restriction of the defense. Evidence such as this cannot be rejected with statements which belong only in the judgment of the Tribunal. If this evidence was such that on examining it one would have to see chat it was neither relevant for deciding guilt or the sentence, the Tribunal could refuse the evidence. In this case the evidence belongs to the usual Subject matter of the trial which the Tribunal may only evaluate at the end of the trial. Convention and the customs of war as bases for the legal evaluation of the actions. Therefore it is justifiable to examine the Russian side of this war in order to find where these bases were actually present. The partisan warfare was claimed even by the Prosecution. Why should it not and care it not be proved that this partisan warfare, Which originally was responsible for many executions was outside of international law? Likewise it is important that, beginning with the Stalin call for partisan warfare of 3 July 1941, the defendants found the previously assumed emergency confirmed as the war continued. The indictment claims that there is no emergency state when there is an aggressive war. When the Prosecution claims this it basically confirms the standard for all criminal laws, namely that a national emergency exists. It doubts merely that in the special case of the belligerent state between the Reich and the Soviet Union, which was declared, unfavorably for Germany, as an aggressive war, a National emergency was to be applied. This decision of the Prosecution is to be clarified since Ohlendorf and the others base themselves on this national emergency.
to enable the Tribunal to determine the subjective side the intentions, the goals, and the motives of the defendants. The claim of the Prosecution is erroneous for two reasons.
THE PRESIDENT: Dr. Aschenauer, may I interrupt, please. You stated in your argument up to this point that you might interpret our refusla to hear this evidence as a constriction upon the opportunity of the defense to present its case. We would look with great regret upon any interpretation by you or your brother defense counsel that this Tribunal in any way prevented the defense from presenting its case, regardless of what it may be. It appears to us at this juncture that what you are attempting to show by this witness is irrelevant. However, we will permit some questions just to see how you develop your theme. If it appears, after a few questions, that the testimony of the witness is entirely immaterial to the issue, then we will once more examine the relevancy of it. If we allow the witness to testify to the full extent of his knowledge on this particular issue, we will allow the prosecution to make any motion that it sees fit after the testimony is in as to whether this still is irrelevant, if it turns out to be irrelevant and it should not be excluded. Q (BY DR. ASCHENAUER) Then please answer my first question.
THE PRESIDENT: Now may I just say this in addition, Dr. Aschenauer and to the witness also: Let us try to be very specific with questions and with answers. The field of International Law is limitless and boundless and if we have a professor on the witness stand and he takes us as students in his classroom, he could talk for hours on any given subject and, undoubtedly interestingly. Let us try to confine it to the actual issue before the Tribunal. of 1907 cannot have any application to the Soviet Union. This is a decision which is not connected with legal theory and general questions, but in my opinion it is to be examined positivistically whether these regulations of this international convention of 1907 are binding for the Soviet Union, either because it was a signatory or because of continued validity. I don't think I am wrong in assuming that an express adherence of the Soviet Union to the treaty has not been registered and therefore it cannot be determined whether the Soviet Union signed it or not.
Of course, this still does not mean anything. One would have to go on and examine perhaps, whether the Hague Convention is valid for the Soviet Union because it was signed by the Czarist government and because the Soviet Union is the legal successor of the Czarist Government. But I would like to deny this question also, for the following reasons: successor of the Czarist Government has been very variously answered in legal theory, and the Soviet Union has-unfortunately, I might say - not taken an unequivocal position on this issue. Once in 1924 it stated to the Institute Intermediary in answer to the question whether a treaty concluded in 1917, a treaty concluded before the Soviet Union existed, whether such an agreement is binding to the Soviet Union that this cannot be answered generally, but that it would have to be interpreted from case to case. In all political treaties the Soviet Union has taken the attitude that such treaties which represent a certain limitation on its sovereignty, do not automatically continue to be valid, but that it was different with its practice on economic agreements, world postal agreements, which were not political agreements, but when political treaties were involved, the Soviet Union reserved the right to sign it. Therefore, it always represented the attitude that these political treaties were only valid for the Soviet Union if an express renewal or a new signature takes place. As I said, an express signing did not take place, a silent agreement -
THE PRESIDENT: Professor, just a moment.
MR. FERENCZ: If Your Honors please, I don't want to hinder the defense in any way, but in order to save time, we will concede whatever the Professor states as his opinion; either the Hague Convention does apply to Russia or does not apply to Russia and we will concede, if he will just state what his opinion is -- that is, we will concede that it is his opinion.
THE PRESIDENT: Yes. That's quite a concession, Dr. Aschenauer. He is willing to agree with you on either side and then let you draw from that statement whatever you feel is logical in your defense, because it must be very clear even to you, Dr. Aschenauer, that the way the professor has begun his dissertation -- that it may be a rather long one, because he is more or less trained to go into a Question with the greatest of minutiae and with the blackboard, We might be here much longer than even you expect, if we don't put a limit on his testimony.
DR. ASCHENAUER: Yes.
THE PRESIDENT: Why don't you ask him directly whether Russia is or is not bound by the Hague and Geneva Conventions. Then, at least, we'll have briefly his answer. Then, if he wants to explain why, he can in a few brief sentences fortify his conclusion.
DR. ASCHENAUER: Yes, I shall try to be precise.
Q (BY Dr. Aschenauer): Witness, was the Soviet Union bound by the Geneva Prisoner of War Convention? to the Soviet Union and for this reason: Because this Convention was concluded in 1929, that is, at a time when the Soviet Union already exited, and the Soviet Union was not a signatory to this convention. would make considerable differences, all according to whether the prisoners of war are proletarians or class enemies? statement nor is any statement of the War Ministry existent, but there are other explanations by the leading representatives of the Soviet International Law: Professor Korovin, Professor Pashukanis, Sabanjn, and others, and here, as a rule, they stated that the Soviet Union would draw a difference in the treatment of its prisoners, all according to whether these are proletarians or non-proletarians, that is, class enemies.
The proletarians can be educated in a prisoner-of-war camp but the class enemies have to be isolated and have to be made harmless. ered admissible, if they represent a danger to the leadership of the Red Army?
A This question is to be confirmed basically, principally. Examples for this are the evacuations of elements of populations, even before the war, from border territories, and, above all, during the War, after 1941, the evacuations of even greater groups of people from the war areas, first of all, of the Tartars from the Crimea, of the Germans from the Crimea, and of all the Volga Germans form the Volga area.
Q Would this danger have to exist more concretely? evidence of any treasonous attitude of these people. It was sort of a general preventive measure.
MR. FERENCZ: If Your Honors please, all the questions presented by the Defense thus far have had no bearing whatsoever on the charges brought against the Defendant Ohlendorf or any other defendant in this case. We, therefore, ask that this line of questioning be discontinued and that everything stated by the witness be stricken from the record as irrelevant.
THE PRESIDENT: Certainly, Dr. Aschenauer, the Conventions with regard to prisoners of war aren't applicable here, because we are not discussing prisoners of war. We are discussing the civilian population.
DR. ASCHENAUER: Your Honor, the Hague Convention, on the other hand, is a matter of this case and -
THE PRESIDENT: Let me interrupt, Dr. Aschenauer, please. You have heard the prosecution's objections and the Tribunal has attempted to indicate also how it looks upon this particular issue. Now, as we said before, in no way will we restrict the defense in presenting what to them seems the logical defense in this case, always within the bounds of reason.
Now we will recess at the present time and I would suggest that you talk with the professor after court adjourns and the professor has heard this discussion back and forth and perhaps you can crystallize a few precise questions which will bring from the witness precisely what you want and then we'll make the ruling on the prosecution's objections tomorrow morning. Is that clear?
DR. ASCRENAUER: Yes.
THE PRESIDENT: Yes. The Tribunal will now be in recess until tomorrow morning at 9:30 o'clock.
(The Tribunal adjourned until 16 October 1947, at 0930 hours.)
of America, against Otto Ohlendorf, et al.,
THE MARSHAL: The Honorable, the Judges of Military Tribunal. No. II-A.
Military Tribunal No. II-A is now in session, God save the United States of America, and this Honorable Tribunal.
MR. WALTON: May it please the Tribunal, one short motion this morning before we get down to the business of the Court. The Prosecution this time moves the Tribunal for an admission of the Document which was introduced yesterday during the cross examination of the Defendant Ohlendorf. That document is No. NOKW-256, which has been given the identification number of Prosecution's Exhibit No. 174. We respectively move the Tribunal at this time that this document be admitted into evidence as part of the Prosecution's case.
THE PRESIDENT: Prosecution's Exhibit No. 194 will be admitted into evidence as part of the Prosecution's case. Dr, Aschenauer.
DR. GAWLIK: Dr. Gawlik for the defendant Naumann. Your Honor, I ask that the defendant Neumann be excused immediately because his defense has to be prepared, and that he be led to Room No. 57 to discuss it with me. I make this motion now because Professor Maurach is to be examined as an expert, and, therefore, it was my intention to have Herr Naumann excused in the afternoon, but I just heard Professor Maurach will not appear, and that Herr Spengler will be examined immediately, and for this reason I would like now to make this motion.
THE PRESIDENT: The motion of course, will be granted. You understand that you will be the next in order?
DR. GAWLIK: Yes, Your Honor.
THE PRESIDENT: Very well, all right. The defendant Naumann will be excused and will be taken toRoom No. 47 where he may be in conference with his attorney, Dr. Gawlik.
DR. GAWLIK: Yes, your Honor.
DR. KOHR: Dr. Kohr for the defendant Blobel, as representative for Dr. Heim. I make a motion to have the defendant Blobel excused also, and that he be brought to Room 57 also. There seems to be a mistake here. The motion was already made yesterday afternoon, but the defendant Blobel was brought in here erroneously. It is necessary that in order to prepare the defense he be brought to Room No.57 to discuss the defense.
THE PRESIDENT: You would like to do that immediately, would you?
DR. KOHR: Yes, Your Honor. Yes, I would like to have it done immediately.
THE PRESIDENT: The defendant ---
DR. KOHR: It was a mistake, He was already excused for today, but he had to appear anyhow.
THE PRESIDENT: Yes. Well, we will rectify the mistake. Immediately the defendant Blobel will be excused, and taken to Room No. 57 so as to be in conference with his attorney.
DR. KOHR: I thank you, Your Honor.
THE PRESIDENT: You are welcome.
DR. RIEDIGER: Dr. Riediger for the defendant Haensch. Your Honor, the situation with Haensch is similar, on the basis of the decision of the Tribunal yesterday Haensch has been excused for the proceedings of today, and, tomorrow, but he was never brought in anyway, and I ask that he be dismissed, and that he be brought back for a discussion on his defense.
THE PRESIDENT: You also want him taken to this Room No. 57?
DR. RIEDIGER: No, if it is possible, to his cell, because he has to work himself.
THE PRESIDENT: And you want that done immediately?
DR. RIEDIGER: If possible, yes. If this does not create any special difficulties.
THE PRESIDENT: I see no difficulty whatsoever. The defendant Haensch will be excused so that he may be interrogated by his counsel, and will be taken from the defendants box, immediately.
DR. RIEDIGER: Thank you.
THE PRESIDENT: I understand we are having some mechanical difficulties which are very brief in duration, we hope so, and we will suspend for two or three minutes. We are ready Dr. Aschenauer,
DR. ASCHENAUER: Your Honor, Dr. Reinhard Maurach was to testify yesterday in Court, and was to give an expert opinion founded on the subject of what were the results from the attitude and the war practices of the Soviet Union sofar as International Law is concerned, and, what in his opinion this has to do with the war emergency state -- war with the presumed emergency state, Your Honor, I have come to the conviction that the Tribunal would get a better and a clearer picture of this if this man would give in writing an expert opinion in the form of an affidavit. Therefore, I ask that this expert opinion be admitted as an exhibit.
MR. FERENCZ: If Your Honor, please, we have not as yet received any copy of the exhibit offered by the Defense ... However, if it pertains solely to questions of the Russian attitude towards International Law, and, is not more closely connected with the charges in this cass, we object to it as not being relevent.
THE PRESIDENT: This is a repetition of the objection made bythe Prosecution yesterday, and the Tribunal indicated yesterday that we were disposed to hear the Professor in order to ascertain that his testimony would be relevent. The Tribunal is further disposed now to receive the Professor's opinion in a written form, so, therefore, the objection of the Prosecution is overruled, and you may have the Professor prepare his expert opinion in writing, and to submit to the Tribunal as an exhibit on behalf of the defendant Otto Ohlendorf, and at the same time we will entertain a motion on the part of the Prosecution if itsees fit to have it excluded, if the Prosecution at that time again insist that the evidence as adduced by the exhibit it irrelevant.
MR. FERENCZ: One mere point, Your Honor. As concerns this exhibit we waive our objection to net having received it in advance, but request the defense counsel be instructed that as regards the calling of witnesses to the stand, and the introduction of additional. exhibits, the Prosecution be notified twenty-four hours in advance.
THE PRESIDENT: Well, Dr. Aschenauer, I am presuming you are familiar with the rule, and in announcing it to you I would like the defense counsel to be reminded that the rules require that the Prosecution be informed twenty-four hours previously with the presentation of witnesses, or of an exhibit, with the nature of the testimony to be presented by that witness, or in the exhibit.
DR. ASCHENAUER: Before I call the witness Spengler, I would like to make a statement that I renounce the witness, Justus Baier. I want to use the witness Spengler completely. The witness Spengler is a character witness, and an export witness, but in order not to take the time of the Tribunal unnecessarily, I will do without the witness Herr Baier, and I shall be satisfied with submitting the affidavit.
THE PRESIDENT: Very well, we will accept the procedure.
DR. ASCHENAUER: I call Dr. Wilhelm Spengler as a witness.
DR. WILHELM SPENGLER, a witness, took the stand and testified as follows:
JUDGE SPEIGHT: Witness, raise your right hand and repeat after me: speak the pure truth, and will withhold and add nothing.
(The witness repeated the oath)
JUDGE SPEIGHT: You may be seated. BY DR. ASCHENAUER. draw your attention to the translation difficulties, and I want to ask you to speak slowly, and to watch the lights, as these mean interruptions and slowing down. The first question. First give the Tribunal information about your person, and about your education and your profession.
A My name is Dr. Wilhelm Spengler, and I was born on 19 March 1907 in Ratholz in the Allgaeu. I am the son of a teacher, Wilhelm Spengler, and his wife. I attended public school in Buchsheim, near Memmingen, in Suebia. The High School in Memmingen, I graduated from High School in 1925 in Augsburg. Having grown up among the confusion of the First World War, and in view of the chaos and the spiritual and ideological world dissolution of the war epoch, and on the relative construction of values -- (interruption) A (continuing) It was up to me to look out for myself, and to find my own spiritual basis for my life.
For this reason I studied European cultural history for six years, and literature and philosophy at the Universities of Munich and Leipzig.
I got a Ph.D. and in 1932 in Leipzig also I passed the State examination for teaching at a High School on the subject of German, History and Philosophy, with the aim of a scholastic career.
Q Witness, did you reach your goal?
A No. This shows the desperate situation of the scholastic German youth in these years. The Commissar State Examination in Saxony for teachers, Professor Hoehn told me that despite my good examinations, I could not be employed because of an oversupply of teachers. That is, I could not get a definite position for fifteen years, that is 1948. This situation as assistant teacher jobs, did not provide enough for my life and too much for death. I could not do any more as young man, than my graudation with honors and my PhD, and my state examination was excellent, qualified me, and nevertheless I was on the street without any employment. Just to show you this general situation I mention these results of my examinations.
Q From where did help finally come to you?
Q Now, Witness, we come to your political career. Did you belong to the Nazi Party?
A No, I did not belong to the Nazi Party at that time. If in my whole student years there was something which could not arouse my interest, then this was politics. The confusion and the talks of the dozens of parties was for me so much more of a reason for me to concentrate only on my studies. how did you come to this contact? instructor at a university. I became the aid of Professor Hoehn in Jena. I heard from him for the first time that such a thing as an SD was to be formed, and he told me that leading agencies of the Party in Berlin, to which he had connections, had in mind to form an objective information about spiritual life, about sciences, about the situation at universities, and that they wanted to have a picture of how these various cultural groups thought about the formation of the National Socialist State.
He asked me whether I would be prepared to give him such information.
Q How did you decide that? by the State, and since I could not count on any definite position until 1948, but since here I saw a possibility that I might find work and work objectively, and express my feeling, even critically, that I could be useful in this job, and since I could work at a central agency and could occupy a policy-making position, I said to myself -
THE PRESIDENT: Just a moment, please. Now, you have been telling us what you had been doing. Now you tell us the conversation you had with yourself. Now, in this very interesting dialogue between you and yourself, what are we to gain from that which will help us in deciding the case of Otto Ohlendorf? In other words, Dr. Aschenauer, I am afraid that you are allowing this witness to go into too much detail with regard to his own life. What is the relevancy of this?
DR. ASCHENAUER: Your Honor, I want to clarify the following questions by means of this witness: According to what points of view did Ohlendorf carry on his activity in the SD: secondly, what was the effect of the opposition of Ohlendorf; thirdly, by means of the SD and in the SD, Ohlendorf had humanitarian goals, and he defended these goals against anyone without any regard of his own person so that therefore he made enemies and incurred serious threats.
THE PRESIDENT: But, Dr. Aschenauer, this witness is giving us the story of his life, not of Ohlendorf's life.
DR. ASCHENAUER: Your Honor, I had to come back to the time which this witness himself lived through in order to show the Tribunal what this man lived through and what his own opinion is. Your Honor, I had to go into these things because in the cross-examination, it is up to the Prosecution to also examine the character of the witness. Therefore, I have asked these introductory questions, and I shall not come back to these questions. My next theme will be the SD work, which was Ohlendorf's aim, and I must, by describing this SD work, form the basis for Ohlendorf's opposition against the totalitarian state.
THE PRESIDENT: A rapid outline of conditions at any given time is acceptable, but a long detailed account of the witness's life is really superfluous, so let's try, Dr. Aschenauer, to get immediately to the situation insofar as involved your client.
Q (By Dr. Aschanauer) Then, Witness, I shall ask you some questions about the SD. What was your first concrete job in the SD to which Ohlendorf belonged? entire German literature since 1913 and therefore had attremendous source material of cultural life and contained data about persons and organizations and corporations of all kinds, I developed an SD library. I gave a picture of the present-day literary editions, new books, and this Professor Hoehn whom I had mentioned who worked in the young SD Main Office in Berlin, and was in charge of cultural affairs there, asked questions about cultural life and information about general problems to this library service. This library center pictured cultural development of the persons and organizations. Among my student friends I had gathered around me a small circle of collaborators and specialists. Professor Hoehn at that time, did you know him? in 1936 as an economic expert in the cultural office in the Central Department II/2, and he struck me very quickly.
Q Now, why? the wearer of a golden party badge, never did I hear from such a man such polished and critical remarks about the development of National Socialism. He made this criticism about the various economic fields, and he showed that the actual activity of these economic departments in the life of the German citizen is not the realization of National Socialist aims, but that it is a decadence from the original idea, a divergence from the original idea.
It is not the realization of a national organized life in the nation, but the culmination of the old capitalistic economic forms, but now by means of the authority of the Party. He also gave me concrete examples for this criticism out of the daily work for the justification of this criticism. ask you to speak more slowly. Witness, what was the effect of this criticism in the office, how was his attitude judged in the rest of the office?
A The effects were various. Some of these people saw in him a man who had a very clear philosophical picture of things which to him meant National Socialism, and who from this picture had criticized actual conditions, and who had the belief that by this criticism he could reform these actual conditions, but the others saw in him, even at that time, an intellectual pessimist and one who only sees things in a very dim light.
Q: Witness, what connections do you know of which caused Ohlendorf to become Chief of the Domestic Service of the SD?
A: These connections took place in the first half of the year 1939. No clear picture of what this SD was to be and was to become, had as yet been developed, for in the beginning, in its embryonic beginnings, immediately after the so-called assumption of power, a part of this SD, the so-called Central Department II/1. was the legitimate enemy information service of the Party and was to inform about the status of enemy tendencies and ideologies within the total structure but already in 1934, '35, Hoehn began to build his cultural department into a reflection of the spiritual and cultural life, of the life of law and administration and of economics, and his successor. Six, also strove to develop a general information service about these matters. developed as the latter Office IV of the RSHA and had achieved complete independence. From the beginning on, as far as the enemy information service and observation was concerned, the Gestapo had available its own investigation offices and its own information service. That means that the concept "enemy" in the SD which was developing became smaller from year to year, and in 1938 the development was given a final coup de grace in the sense that the enemy observation disappears even as an informational task. This was finally completely excluded from the SD and was given to the competence of the Gestapo alone. This was decided in the so-called decree of separation of functions. From this period of time on the SD, and this is true for the entire Office III of Ohlendorf, on the SD has had nothing to do whatever with concrete enemy information.