Of course, this is an opportunity which you may avail yourselves of, if you desire. You don't need to cross-examine if you have nothing to examine him about, but in view of the fact that Mr. Wartenberg will ver soon be departing for the United States, it is necessary if you intend to raise any questions at all about the manner in which the statements were taken, that you raise these questions now, so this afternoon when we reconvene after the noon recess, Mr Wartenberg will take the stand, and he will be available to all defense counsel for any questions which they desire to put to him. We will now recess for fifteen minutes.
(recess)
THE MARSHAL: Take your seats, please.
DR. ASCHENAUER: In the occupied territories, however, the merely technical junction was created in a manner corresponding to the RSHA, Consequently there exists at the headquarters of the Regional Commander of the Chief of the Security Police and the SD, the offices I-VI corresponding to those of the RSHA, and that is one of the reasons which have led to misconceptions concerning the SD. But here too nothing has changed in regard to the departmental duties of the various offices. It has to be added that office VII had branch offices neither in occupied territories nor within the Reich. And not in all occupied territories did Amt III have branch offices in operation. differently organized. The usual organizational structure of the Security Police and SD cannot be compared with them. They are not government offices which constitute branch agencies for offices III, IV, V, and VI, but militant units whose organizational structure is evolved out of their special task, which they are to execute within the executive powers of the commander-in-chief of Army groups and armies. on operational duties and subject to military law. Force, the Stapo, the Kripo (Criminal Investigation Police), the SD, of emergency inductees and volunteers from conquered territories. They are organized for the commissioner of the Chief of the Security Police and the SD at the headquarters of the officer commanding the organizations behind the lines. Their activities change with the requirements of the situation in the zone of operations and are, as a rule, therefore, not those of Offices I, II, III, IV, V, or VI.
All these problems will be clarified by hearing Dr. Spengler as witness. These problems form the basis for the question: What was Ohlendorf's position to Himmler and Heydrich the leaders of the SS? During the presentation of evidence, it will be revealed that Ohlendorfs work was in direct contrast to that of Himmler, Bormann and Ley.
Ohlendorf caused the following: dence pointing out, for example, that "the small fry gets caught, but the big fish get away," and, incidentally, attention was called to the interference of the Party into judicial matters. A further report criticized the overlapping of the system of fines which the economic associations Wintochaftsverbaende could impose and the procedure before the regular criminal courts, which had caused an intolerable discrepancy in the severity of penalties inflicted. further attacks on schools and school teachers were prohibited by Goebbels, that the importance of scientists was officially adknowledged, that interference with school life by the H.J. as discontinued, the H.J. activities reduced, the school children excused from collections of all kinds, etc. of motion pictures and succeeded in supporting the role of the motion pictures against the will of Goebbels. The seventh Kulturkammer which already had been proclaimed by Ley was stopped by appropriate SD reports. In contradiction to the political policy of coordination (Gleichschaltung), private association were sponsored. In long reports, Amman's publishing and press policies were criticized and thus a number of publishing firms and newspapers were saved from closing down or from being transferred to the Eher Publishing firm. political publications. On the other hand, the publication of good classical novels and worthwhile new novels was aided. cluded from the measures for waging total war, although a decision to that effect had already been reached. The evidence presented was so convincing that the Party Chancellery changed their opinion and, satisfied by the documentary and statistical evidence, brought forth by the SD exerted its influence for the continuation of work at the universities.
zation with reports supported by evidence. five Gaues.
These facts correspond with the description of the "SD" in the "C.I. Handbook Germany," published by the "Supreme Headquarters, Allied Expeditionary Forces, Office of Assistant Chief of Staff, G-2, Counter Intelligence Sub-division." It reads here under number IV, "The German Intelligence Service," as follows:
"Amt III, with its regional offices, is the Party Intelligence Service inside Germany. To this end, it maintains networks of agents in all walks of German life.... who are drawn from all classes and professions. The information supplied by these agents is made up into Lageberichte (Situation reports) which are sent up to RSHA by the regional offices. These reports are extremely frank, and contain a complete and unbiased picture of German opinion and morale." of Ohlendorf. The picture of a man will arise which, in purpose, intent and actual work stood in opposition to the terrible events in the East. vice since 1938, gets into the terrible situation, the effects of which are visible today, through the announcement of the mobilization. Before his assignment in Russia, he had a war assignment of the Reich Group Commerce. After he had refused twice this war assignment was cancelled upon order from Heydrich. Ohlendorf was drafted for the Reich Fuehrer SS. This fact is also proven by the Indictment, No. 3196, page 5 of the original. Ohlendorf now clearly belonged to a military, hierarchic organiza tion.
Ohlendorf did not agree with the execution order. The assembled leaders of the Einsatzgruppen protested unanimously against Streckenbach who announced the Fuehrer order in the name of Himmler and Heydrich. Streckenbach agreed with the opinion expressed through that protest, but he declared that in a similar cases in Poland he had already tried everything in order to have the order not executed.
Himmler supposedly refused flatly. At the beginning of October 1941, Ohlendorf approached Himmler at Nicolajew, with regard to the execution order, although the latter in a speech before the leaders and men of the Einsatzgruppe and of the Einsatzkommandos called together, had again repeated the strict order of the Fuehrer. Ohlendorf in speaking to the Reich Fuehrer SS emphasized the inhuman burden. He did not even receive an answer. He could not make Himmler revoke the order. There was no possibility for him to prevent the practical execution of the order, which was his endeavor. There is no possibility for him to evade the order. He is in an unheard-of conflict of duties. Ohlendorf has no possibility to make any appeal, since any attempt to get to Hitler personally always had to be made via Heydrich and Himmler, Since it is Bormann who is behind the order, any attempt to surpass Himmler and Heydrich would have failed at the latest when it got to Bormann. Bormann's actual role in that unequaled European tragedy, the story of who he was, will be recorded by some future historian. If one assumed any other possibility for Ohlendorf to gain influence, one would forget, that he was only a Standartenfuehrer, without any political powers, i.e. without any position in the Party based on political powers. He knows neither Hitler nor Bormann. No Reichsleiter or Gauleiter or any other politically influential personalities are his acquaintances, let alone on his side. All he could do was to interpret the order in as limited a way as he could possibly do and to try to execute it as humanely as possible under the given circumstances, contrary to the interpretation of the indictment not only in the interest of his men but first of all in the interest of the victims, since the protection of the men against brutalization is a protection of the victims against brutalized men.
Ohlendorf's entire life shows that in spite of all setbacks and threats his fight was not only directed against the tyranny of Nazi leaders within the Reich, but that immediately after his return from the Einsatz he starts fighting against the exponents of extermination and colonial power politics in the East, especially against Koch, Globotschnik and Einsatzgruppenfuehrer, SS-Gruppenfuehrer Thomas. Ohlendorf continues in this fight, even though Himmler treatens him not only with liquidation of his office in case he should continue with this kind of reporting, but also threatens to arrest him. In that moment it becomes evident that, as soon as there is no purely military relationship where no resistance is possible, Ohlendorf makes use of the slightest opportunity in order to actively intervene against the policies of power and extermination. by the defense. The tragedy of Ohlendorf's life will become clear to every man. taking part in the session this afternoon and tomorrow morning.
THE PRESIDENT: In order that Dr. Aschenauer may have an opportunity to prepare the defense of the defendant Ohlendorf, Ohlendorf will be excused from attendance upon the trial for the rest of the day and for all of tomorrow.
DR. ASCHENAUER: Thank you.
THE PRESIDENT: Your're very welcome.
DR. SCHWARZ: (Attorney for the Defendant Joost)
THE PRESIDENT (Interposing): Just before you begin, I presume you would want to leave, Dr. Aschenauer; you would like to leave the Court now and you would like to have the defendant Ohlendorf available from this moment?
DR. ASCHENAUER: Yes, Your Honor.
THE PRESIDENT: "Will the defendant Ohlendorf be escorted from the courtroom so that he will be available to his counsel. Just a moment please, Dr. Schwarz.
Dr. Aschenauer, may I suggest to you that if you wish to put any questions to the interrogator, Mr. Wartenburg, that Mr. Wartenburg will be available this afternoon; and, any time you care to come in, we will make him available to you so that you may not lose any time in getting back to your client.
DR. ASCHENAUER: I have no questions to address to Mr. Wartenburg.
THE PRESIDENT: Very well, Dr. Schwarz, you may proceed.
DR. SCHWARZ: If Court please, -A and in violation of the provisions of Law No. 10 of the Allied Control Council of 20 December 1945, committed the following:
1. Crimes against humanity by participating in the murder of 2. War crimes by atrocities or assault on body, life or property 3. With having been a member after 1 September 1939 of an orga litary Tribunal and by par.
1, Article II of the Law No. 10 prove the following points in answer to the charge of having committed crimes against humanity and war crimes, both of which, since they are essentially based on the same facts, will be treated under figure 1 as follows:
1. a) Jost was appointed Chief of Einsatzgruppe A by command on 29 March 1942.
His personal dislike of this order and the of the authoritative effect of this order.
As far as this effectively binding orders.
The problem of "order and ne such excluding guilt", need not be discussed at this point, ing this resp.
has already made a statement to that effect.
Montgomery's views on the nature of the concept "command".
the following (Excerpt from The Times, London, of 27 July 1946): "It must be clearly established that the army is a its discipline.
The army would fail the nation if it were them with three principles:
3. It is the duty of the soldier to obey all orders given questions."
b) When Jost entered upon his service, he looked at the tasks a military point of view.
For Einsatzgruppe A was subordi nated primarily to the Chief of the Army Group North.
Its Nort.
Lituania, Latvia, Estionia, and White Ruthenia did regions.
In these regions, which were under civilian ad at the time of Jost's entry upon his appointment.
These The Prosecution submitted an essay on basic conditions within the SS, the SD, the Gestapo, the Reich Security Main Office, and the Einsatzgruppen, dated 29 September 1947, which assumed, especially with respect to the enclosed photostatic copies of the drawings, the presence of certain actual conditions, which, at the time of JOST's entry upon his appointment, were already obsolete.
with partisan reconnaissance and the combatting of partisan troops in collaboration with the army, counter intelligence against espionage and sabotage, searching for parachutists, and the reconnaissance by agents of the region towards Petersburg. vocally the chain-of-command relationship of the Einsatzgruppe to the Wehrmacht and to the Chief of the Security Police. ment of the Defense. We shall refer to it later.
c) The joint statement of the Defense will also deal with the problem of how far the measures taken by the Einsatzgruppe A in the course of their military duties can be thought justified from the point of view of international law in view of Russia's behavior.
d) The occurrences, with which JOST was charged in the indictment under I S and T, were not initiated by units of the Einsatzgruppe A. submitted by the Prosecution in the course of this proceeding.
e) Apart from his appointment as Chief of Einsatzgruppe A, JOST also was Commander-in-Chief of the Security Police and the SD Ostland in the Reich Kommissariat Ostland. In this capacity, his activities were restricted by HEYDRICH, since his duties chiefly concerned the organizational structure of the offices of the commander-in-chief within the sphere of the Reich Kommissariat Ostland and within the framework of the civil administration, and because matters of an executive nature and those dealing with the Einsatzgruppe were to be excluded.
The problem of executive orders became acute when JOST at the end of April 1942 received instructions by HEUDRICH to the effect that all Jews with the exception of the age groups from 16 to 32 should be subjected to "special treatment". In this connection, it is necessary that the relationship between JOST and HEUDRICH is clearly outlined. After having been active since 1934 in the SD for seven years, JOST left the Reich Security Main Office at the end of August 1941, after having had most serious disagreements of a professional, political, and personal nature with HEYDRICH. From the beginning JOST tried with every means at his disposal to make HEYDRICH revoke his appointment as Chief of Einsatzgruppe A. Up to then, HEYDRICH had been considerate of JOST's attitude by not having issued executive orders to him. the above mentioned order or taking the consequences of insubordination, JOST decided not to relay this order but to have it rescinded, and to make the attempt to talk to HEYDRICH and see that this order would be annulled. At the same time, JOST again handed in his resignation. them act more in line with his way of thinking, and by this saved the lives of approximately 40,000 Jews. view with regard to the shooting of Jews against SS Obergruppenfuehrer JECKELN, with special emphasis on the fact that his men could not be expected to carry out such orders. novardeisk command to the effect that the inmates of the insane asylum in Krasnovardeisk be liquidated since the asylum was needed for billets. of freeing Ostland from Jews, and thereby contributed toward saving these people.
During Jost's command from March until August 1942, no executions were carried out upon his order or with his sanction.
g) This attitude that JOST displayed merits emphasis even more because he is as such not one of the most robust of men, and besides because of illness he never was in possession of his full strength and natural resistance, either physically nor psychologically. He suffered and still suffers from thyroid disease, from disturbances of the vegetative nervous system, and from an artrosis deformans of the spine. This is the reason for his frequent disability, and especially after Easter 1942, he was 1 me and confined to bed for 12 days. more than he could possibly have been expected to do. was phrased in the judgment of the IMT as the question of whether or not a choice corresponding to a code of morality was possible at all. (Chapter 5 at the end). The American Military Tribunal II in their judgment against Erhard MILCH said the following on page 96 of its opinion: "It was never our intention, and it has never been suggested by us, that he (MILCH) should have chosen any course of action which could have culminated in the loss of his life." And this was the great danger in JOST's case.
h) With this attitude that JOST exhibited it was inevitable that he was taken to task for it by the people then in power. After JOST's efforts towards being recalled from his post as Chief of Einsatzgruppe A were finally successful in August 1942, HIMMLER, at the beginning of March 1944, caused him to be inducted as Unterscharfuehrer into the Waffen-SS, without regard to age, health or previous training. HIMMLER wanted to get him out of the way.
2a) JOST's duties at the SD after 1 September 1939 as Chief of the Office VI, SD Ausland, at the Reich Security Main Office, consisted in getting information from foreign countries for the respective competent Reich authorities. Office VI never had anything directly to do with either the persecution and liquidation of the Jews, atrocities and murders in concentration camps, excesses in the Administration of occupied territories, the execution of the forced-labor program, nor with ill-treatment and murders of prisoners of war.
b) JOST's membership in the SS was forcibly dependent upon his job in the SD. He was not an SS-Fuehrer in the main office. He was on the payroll of the Police as Brigadier General (Generalmajor).
DR. GAWLIK: Dr. Gawlik for the Defendant Naumann. defendant Naumann who is represented here by me, are very severe. thoroughly the facts and their juridical implications. evidence submitted by the prosecution, it becomes already apparent that this evidence is not sufficient to establish Naumann's criminal responsibility for the actions with which he has been charged.
The incorrectness of the prosecution's assertions already arises in part out of the submitted indictment. I shall make further corrections in my submission of evidence. Naumann's character which is different from the interpretation as presented by the prosecution in the Opening Statement and throughout its submission of evidence. beginning of its activities in Russia. Until the end of November 1941 the leader of Einsatzgruppe B was the then commanding SS Gruppenfuehrer Nebe, chief of Amt V of RSHA. already were at the Einsat and Special commandos, because they already had been issued in June 1941 at the beginning of the war against Russia.
whatsoever for all executions which occurred before his taking command of Einsatzgruppe B. This concerns the following documents submitted by the Prosecution:
NO-2934, Exh. 78, Vol. II C, P. 52 NO-2844, Exh.
61, Vol. II B, P. 44 NO-3156, Exh.
60, Vol. II B, P. 15 NO-3160, Exh.
65, Vol. II B, P. 48 NO-3403, Exh.
63, Vol. II B, P. 39 reports (Ereignisberichte) which originated between July and October 1941. But the same is also true of documents NO-2825, Exh.
59, Vol. II B, P. 10 and NO-2656, Exh.
39, Vol. II A, P. 45.
The latter document contains a situation report (Lagerbericht) of 25 November 1941, in which the period of the report is specifically mentioned as 1 to 31 October 1941. In the other document we find that various executions which occurred on different days in October were mentioned in an operational situation report on events dated 14 November 1941. the executions mentioned in the operational situation reports of 19 and 22 December 1941 (Document NO-2824, Exh. 62, Vol. II B, P. 31 and Document NO-2833, Exh. 114, Vol. III B, P. 17). I shall prove that the executions mentioned in these operational situation reports have been performed by the Einsatz- and Special Commandos at a time when Naumann was not yet in command of Einsatzgruppe B. This Einsatzgruppe was then still under the command of the then SSGruppenfuehrer Nebe. The operational situation reports have been compiled by Amt IV, Al of the RSHA in Berlin and, consequently, bear the date of the day when they were drafted and compiled in Berlin. They were compiled on the basis of written reports which were transmitted to Berlin by the individual Einsatz- and Sonderkommandos through the Einsatzgruppe.
The transmission of these written reports from the locations in the heart of Russia to Berlin took several weeks, particularly in view of the great transportation difficulties. This also explains why the operational situation report of 22 December 1941 (Doc. NO-2833, Exh. 114) relates events of 18 and 21 November 1941. The executions mentioned in the operational situation report of 19 November 1941 (Doc. NO-2824, Exh. 62) must, therefore, refer to an even earlier date. can thus not be the responsibility of the defendant Naumann for the simple reason that they date from a time when he was not the Commanding Officer of Einsetzgruppe B.
By submitting Document NO-2830, Exh. 72, Vol. II C, Page 23, the Prosecution wants to prove that Naumann was Commanding Officer of Einsatzgruppe B as early as 12 November 1941. This document constitutes an operational situation report of the same day which does not contain reports of Einsatzgruppe B, which, however, names the defendant Naumann as Commanding Officer of Einsatzgruppe B in the beginning under the list of location and lines of communication. In this connection I point once more to the fact that these operational situation reports were compiled at the RSHA (Reich Main Security Office) in Berlin where also the decisions concerning the assignment of personnel were made and where also the latest reports of the assignment of personnel were known. On 12 November 1941 it was known at the RSHA (Reich Main Security Office) that Naumann was assigned as Commanding Officer of Einsatzgruppe B.
But at that time Naumann had not yet assumed duty. At that period he even was not yet in Russia. deduced for the executions carried out in November 1941 in the area of Einsatzgruppe B.During the time of Naumann's activity as Chief of Einsatzgruppe B we have, therefore, only the operational situation report of 21 April 1942, which has been submitted by the Prosecution as document NO3276, Exh.
66, and which contains data on executions in the period from 6 to 30 March 1942. for the executions mentioned there. I shall base my argument on the legal principles laid down already by Tribunal II in its judgment in the Milch Case and also by the Supreme Court in the Yamashita Case. the following questions can be answered in the affirmative beyond any reasonable doubt:
1. Did the defendant Naumann personally take part in executions?
2. Were these executions carried out under his direction or under his command?
3. Had he any knowledge of the executions before they were carried out?
4. If so, did he have the power or the opportunity to prevent them or stop them?
5. If this is the case, did he fail to act, and did he, in this way, become particeps criminis and accessory to the crime?
I shall prove: As to 1 1. The defendant Naumann personally did not take part in any executions. He himself did not kill any of the persons named in Document No-3276, Exh. 66, Vol. II B, p. 66. 2. The defendant Naumann did not give any instructions or orders for the carrying out of these executions either. Nor did he pass on any orders to the Einsatz- and Sonderkommandos under his command for the carrying out of these executions. The orders given by Hitler for these measures were already in the possession of the Einsatz- and Sonder kommandos when Neumann took over.
These orders had been transmitted to the Einsatz-and Sonderkommandos by Naumann's predecessor, the then SS-Gruppenfuehrer Nebe. As to the legal significance of these orders I shall give detailed explanations in my Closing plea. 3. It is not contested that it was known to the defendant Naumann when he assumed duty as Chief of the Einsatzgruppe B, that the Einsatz- and Sonderkommandos under his command had been given orders for the carrying out of executions. Neumann's criminal responsibility. This has already been decided by Military Tribunal II in the trial against Milch and by the Supreme Court in the Yamashita Case. opportunity to prevent the carrying out of these orders and to stop them, and have failed to do so. the opportunity to prevent the carrying out of the orders given by Hitler and passed on by Himmler and Heydrich, which were in the hands of the Einsatz- and Sonderkommandos. Naumann would not have failed to prevent the carrying out of the execution orders if he had had only a vestige of power to do so. This is proved by his conduct when he was Chief of the Security Police and of the SD in Holland. If Neumann were the type of person as described by the Prosecution, Neumann would have rendered himself guilty of some sort of war crimes or crimes against humanity also in Holland. However, the opposite is the case. The defendant Neumann endeavored in Holland to lighten the burden of occupation whenever he had a chance to do so. He took steps to have Dutch hostages released, to have a number of Dutchmen discharged from concentration camps where they had been put for suspected acts of sabotage against the German occupying power; he saw to it that the Dutchmen confined in prisons for political reasons were provided with sufficient food so that their distress was relieved.
All this Naumann did though he was not competent to do so, and though he exceeded his competence by these actions and acted contrary to existing orders. execution orders issued by his predecessor to the Einsatz- and Sonderdommandos, if he had had the power to do so. But to do so was outside Naumann's sphere of power - for these were orders of Hitler, Himmler and Heydrich - three persons - who concentrated all power in Germany in their hands and ruthlessly saw to it that the orders issued by them were carried out.
I shall prove that Naumann's activity during his service in Russia. did by no means consist of carrying into effect Himmler's and Frank's ideas in their speeches cited by the Prosecution, on the extermination of inferior races, Naumann was, first of all, a soldier - and his main activity as Chief of an Einsatzgruppe consisted in the safeguarding of the zone of communications in the East against the numerous raids by Partisans. I shall prove in my argument, that this activity claimed his entire strength, so that he was in no position to supervise the work of the Einsatz- and Sonderkommandos in the carrying out of the execution orders given by Hitler, Himmler and Heydrich. This explains also why Naumann never took part in any execution.
THE PRESIDENT: Dr. Gawlik, while you are here we want to call your attention to a motion made by Dr. Schwarz asking that the order in the presentation of his case he delayed because of the fact that he was not engaged as counsel until September 17th. His request does not seem to be - Oh, I did not have my key up - shall I repeat what I said: Yes, you may wonder what this has to do with you but you will see in a minute. Dr. Schwarz, who represents, Jost, the defendant who precedes your client in the order in which they are seated in the box has asked.
that he be allowed to present his case in a later order because of the fact that he was only engaged as counsel on September 17th. He would appreciate therefore, if you would present your case immediately following the case of Ohlendorf, so that Dr. Schwarz will have, let us say, approximately thirty days from the time that he was appointed for the presentation of his case, so if it is agreeable with you when Ohlendorf's case is finished, you will proceed with Neumann's?
DR. GAWLIK: Very well.
THE PRESIDENT: Thank you very much.
DR. SCHWARZ: Will you pardon me, Your Honors, may I ask the Tribunal in order to have more time to prepare the defense of Jost that you excuse him from being present in the Courtroom?
THE PRESIDENT: From this moment you would like to have him excused, from this moment?
DR. SCHWARZ: Certainly.
THE PRESIDENT: Very well. In order that the defendant Jost may be available to his counsel he will be excused from, attendance on this proceeding for the rest of the day and for tomorrow al so?
DR. SCHWARZ: I would like to ask that he do so.
THE PRESIDENT: Very well, the request is granted. Will the Marshal escort the defendant Jost from the Courtroom?
(The defendant Jost is escorted from the Courtroom).