That Hitler considerably abused the power of the State and the discipline of the State is not relevant in this connection because this abuse was not clearly recognizable within Germany and partly because no criticism of any kind was tolerated. I shall come back to this problem in the next paragraph.
Considering the otherwise high standard of German culture and morals it can be said that only within the framework of this special discipline of the German people and State could such actions as are at issue here be ordered and executed by the State-Government.
c) In the third place, the point of view of the so-called mass-psychology must be mentioned. Here again this brief plea cannot possibly deal with this point of view exhaustively. I only went to stress one fact: it is a fact in mass-psychology that every people wants to have its heroes. These heroes are glorified, sometimes even idolized by propaganda, no matter whether or not they actually merit adoration to such extent or any adoration at all.
Such a hero e.g. for the majority of the Germans was formerly Fieldmarshal v. Hindenburg and for the majority of the French Marshal Petain. A popular hero of that type is e.g. General Eisenhower; no loyal American would permit anybody to talk disrespectfully about him.
And during the years following 1933 Adolf Hitler too gradually became such a hero for the overwhelming majority of the German people. In this connection it is of no importance, that Hitler, as it appears to-day, had a Janus-head, i.e. on the one hand he showed the ideal characteristics of a hero and almost infallible leader of the German people as contended by the German propaganda and on the other hand, at any rate during the last years, the characteristics of a criminal or maniac carefully concealed by the propaganda. The mysteries about Hitler's personality have not been solved up to this day. The only relevant fact in this connection is that the bulk of the German people in the years following 1933, more and more considered Hitler as stateman whose qualities of leadership and conduct were almost those of a superman and of whom only the very best could be expected.
He solved the big problem of unemployment (whether this was done through the rearmament which in the beginning was strictly secret has been contested and was not known to the bulk of the people or at least they were not conscious of it). And there was no event in the later years which consolidated Hitler's position with the bulk of the German people as much as the Anscluss of Austria in the Spring of 1936. It must be borne in mind that the reunion of the Germans living in Austria and German-Bohemia with the rest of Germany had been a unanimous demand of all Germans, German Austrians and German-Bohemians in 1919, that, however, the peace treaties of Versailles and St. German had forbidden such a reunion, in flagrant violation of the right of self-determination of peoples which constituted one of the most important points of President Wilson's program. The tremendous support for the Anschluss of Austria within the German people is shown by document Blume No. 9: One must imagine what it meant if at that time a.o. the Austrian cardinals and bishops welcomed the Anschluss of Austria to Germany with the words "Heil Hitler".
It was this ideal side of Hitler's Janus-Head in which the bulk of the German people had unlimited confidence and to which it was definitely obedient.
Three circumstances played a particular part in this connection?
1) The recognition granted to the Third Reich and Hitler personally by foreign countries. I should like to refer e.g. to the glorification of Hitler in Eiscount Rothermere's book "Warnings and Prophecies" published in 1939.
2) The extraordinary effectiveness of the propaganda within Germany.
15) The judgment of the IMT states: -------------------------15) - Official Edition, vol. I, p. 182.
"Through the effective control of the radio and the press, the German people, during the years which followed 1938, were subjected to the most intensive propaganda in further ance of the regime.
Hostile criticism, indeed criticism of any kind, was forbidden, and the severest penalties were imposed on those who indulged in it.
Independent judgment, based on freedom of thought, was rendered quite impossible.
3) Hitler's contention which he already presented in his book "Mein Kampf" was: "Terror can only be broken by terror".16)This sentence meant that the red and communist terror could only be broken by strict force on the part of the State. Many people in Germany acquiesced in various terror-measures under the Nazi-regime of which they heard because they considered such dictatorial measures indispensable as defense against and for avoidance of the red terror, even though on principle they did not approve of them. The following words of the Austrian bishops were to be similarly understood:17) "We are also convinced that the danger of the all-destroying and godless Bolschevism was averted through the efforts of the National-Socialist movement."
A similar attitude can be found at the present time among many Frenchmen and foreigners who maintain that in case the moderate parties in France should not be able to remain in power a dictatorship by de Gaulle would still be preferable to a communist dictatorship. A similar attitude can be found in many instances with regard to the dictators Franco and Salazar.
For many Germans, however, Hitler's abuse of the command-power of the State became obvious at the outbreak of World War No. II. But at this moment it was too late. For actually at that time nobody in Germany could offer resistance to the development which led to the catastrophe. Moreover every campaign was explained and presented to the German people by its Government as a purely defensive war, and this was also true of the Russian campaign, I refer to Blume document No. 14 end the borderlines between an ----------------------16) - Cf. e.g. pp. 44-46 in "Mein Kampf", 489-493, Ed., 1939. 17) - Blume document No. 9, p. 4 (Doc. Book I, p. 98) aggressive and a defensive war are not fixed.
President Roosevelt in his radio speech on 11 September, 1941, in giving the reasons for his order to shoot at German and Italian submarines, said very strikingly:18) "If one sees a rattlesnake rising one does not wait for it to jerk but smashes it before."
Summarizing I might say: At least until about the middle of 1943 the bulk of the German people believed in Adolf Hitler as an eminent statesman and General and German hero in a manner which in the last analysis can only be explained by making use of the experiences in mass-psychology and psychology of nations.
THE PRESIDENT:Dr. Lummert, do you agree this might be a good point at which to suspend for lunch?
DR. LUMMERT:Yes, certainly.
THE PRESIDENT:Then we will be in recess until :45.
I hope that sufficient defense counsel will be here to continue with summations after we reconvene.
AFTERNOON SESSION (The Tribunal reconvened at 1345 hours, 9 February 1948)
THE MARSHAL:The Tribunal is again in session.
DR. KOESSL:Dr. Koessl for the defendant Braune. The defense counsel for the defendant Braune asked me to request from the High Tribunal that the defendant Braune be excused from attendance in Court this afternoon, because of a few changes in the final plea which are to be discussed.
In view of the fact that his final plea is to be ready tomorrow, I would like to ask the Tribunal to grant the request.
THE PRESIDENT:Do you want him taken into Room 57?
DR. KOESSL:Yes, please.
THE PRESIDENT:Dr. Braune will be excused and taken to Room 57 so he may confer with his counsel.
Proceed Dr. Lummert.
DR. LUMMERT:It is on page 20, Your Honor.
In the fourth place, as regards the "unexpectability" as set forth by me, mention must be made of the special conditions prevailing in the East.
In order to avoid repetitions I should like to refer to the detailed expert opinion of Professor Dr. Maurach (Document Ohlendorf No. 38) and I should like briefly to call attention to the Soviet partisan warfare which is contrary to International Law and to the fact which was set forth by Prof.
Maurach in detail that at that time in Germany the Jews in Russia were considered as bearers of the Bolshevist system.
In this connection I should only like to add that the so-called anti-Semitism was never so widespread in Germany as it formerly was e.g. in Poland and in Russia.
Everybody in Russia and Poland knew and still knows what the word "horpom" or "pogrom" means.
In Germany on the other hand this word is so little known that many people pronounce or spell it with an "r" in the wrong place, namely "program" (as if the word contains the Latin prefix "pro"). Without the compel ling orders of the State Government the regrettable measures of the persecution of the Jews would never have taken place in Germany.
Last but not least, in connection with the "unexpectability", the Fuehrer Order to the Einsatzgruppen in the East and the direct orders of the superiors, e.g. of Brigadefuehrer Nebe to the defendant Blume, and the urgent character of these orders must be taken into consideration. Here "unexpectability" and the legal aspects of necessity, in particular necessity caused by orders issued, overlap. Since these questions are dealt with in some detail by my colleagues Dr. Aschenauer and Dr. Gawlik I take the liberty of referring to their statements.
Summarizing I may say: If the Tribunal is to pass a fair judgment in this phenomenal trial, all the special conditions with regard to the legal problem of "unexpectability" with which the defendants were faced in 1941 have to be considered, from the point of view of the defendants at that time. In effect J u s t i c e - without any feelings of hatred or revenge and without any prejudice - can only be administered in that way.
I now turn to the case of the defendant Dr. Blume who is represented by me before this Tribunal.
I am in the fortunate position that as far as the facts are concerned i.e. the actions of the defendant Blume in his position as temporary commander of Sonderkommando 7 a in the East in the summer of 1941, from the beginning of July until 15 August, 1941, the Prosecution and I as defense counsel are fundamentally in agreement as far as I can see. This is the reason why neither the Prosecution, as I was told by Mr. Ferencz, nor I myself drafted a closing brief for the defendant Blume.
The actions of the defendant Blume as commander of Sonderkommando 7a can clearly be seen 20)
a) from his own examination and the two supplementary affidavits he gave (Blume documents nos. 4 and 13). ------ - - - - - - - - - - - - - - - - - 20) Cf. Transcript pp. 1764-1846, 1858 - 1863, 1867 - 1875, 1881 1898, 1900 - 1901, and 1904 - 1915.
b) from the reports of events for the time in question (see Blume Document nos. 5 and 6).21)
c) from his affidavit NO-4145, Prosecution's Exhibit No. 10, in connection with the letter written by the defendant Blume to Mr. Wartenberg on 29 June 1947, to complete this affidavit (Blume Document No. 8);
d) from the affidavit of the witness Radl (Blume Document No. 11);
e) from the affidavit of the witness Krueckemeier (Blume Document No. 12);
f) and finally from the excerpts from the newspaper (Voelkischer Beobachter) offered as a supplement (Blume Document No. 7) and some additional evidence, i.e. the two affidavits of the defendant Steimle (Prosecution's Exhibits nos. 119 and 61) and the examinations of the witnesses Naumann, Schulz, Six and Steimle by me as counsel for the defendant Blume.
The defendant Blume always represented the facts in the same thoroughly credible way. They are borne out by the entire evidence. I believe I can say that the Tribunal in examining the defendant Blume gained the impression of a frank, upright and truthful character.
These personal qualities are confirmed by all character testimonies (Blume documents no.s 15 - 29 and 31 - 35).
As concerns the figure of 996 alleged liquidations carried out by Sonderkommando 7 a during the period of time up to 20 August, 1941, in the report of events no. 73 (Blume document No. 6, 0. 25) there is such a bulk of material in evidence before the Tribunal concerning the exaggerated figures of liquidations usually reported by Brigadefuehrer Nebe, who was Chief of Einsatzgruppe B, that this alone is sufficient to consider this figure as refuted.22) - - - - - - - - - - - - - - - - - - - - 21) Cf. transcript pp. 1805 - 1822. 22) Cf. examination of witness Blume, transcript pp. 18-3, 1807-1808, and 1818; affidavit Radl (Blume doc.
No. 11), p. 5; furthermore the examinations of the Witnesses Ohlendorf, Naumann, Sandberger, and Ott in this respect (transcript pp.
535, 825, 2234, 3768) as well as the affidavit of the witness.
Fumy (Ohlendorf document no, 32) First of all it has been proved that the defendant Blume did not approve of the Fuehrer -Order concerning the liquidations and-that as far as at all possible he evaded its execution.
but when executing it he acted because of extreme emergency 23) and finally, as early as in the middle of August 1941, he was relieved as being too "soft and burocratic" and was ordered back to Berlin.
Concerning this latter fact I also refer to the testimonies of the witnesses Naumann, Schulz, Six, and Steimle and Steimle's two affidavits.
24) The few cases where Sonderkommando 7a could not totally avoid compliance with the Fuehrer Order while the defendant Blume was in charge of it, are the following:
1.) On 7 July, 1941, in the morning the shooting of 50-60 persons from Minsk.
This liquidation had been categorically ordered the preceding evening by Nebe, who was Chief of Einstatzgruppe B, despite the reluctance of the defendant Blume.
Nebe had directly ordered Hauptsturmfuehrer Foltis to carry out the execution, by-passing the defendant Blume because of his obvious aversion to it.
For this latter reason alone the defendant Blume cannot be charged with this liquidation.
In view of the order issued by Nebe to Foltis, Blume could not prevent it.
2.) On 19 or 20 July, 1941, the liquidation of about 80 persons in Witebsk.
The defendant Blume himself ordered Hauptsturmfuehrer Foltis to carry out this execution after Nebe had forced him - Blume directly, by a very harshly-worded radio order, to carry out a liquida tion of Jews in Witebsk according to the Fuehrer Order before he left Witebsk.
The defendant Blume on the witness stand, testified as to details of that order of his superior Nebe and the carrying out of the liquidation; I should like to refer to this testimony.
25)This is the only case where the defendant Blume ordered the killing of Jews, on direct order of his superior Nebe and according to the Fuehrer Order - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -23) Cf. trans.
pp. 1768-1770, 1777-1779-1790, and 1837-1840; affidavit Radl (Blume document No. 11), pp.
3-5 24) See trans.
pp. 847, 1025, 1378, and 2024 as well as Pros. Exh.
nos. 119 and 61 (cf. trans. p. 1823) 25) Cf. transcript pp.
1787-1790; furthermore aff. Radl. p. 5) On the other hand the defendant Blume had nothing to do with the shooting of 27 Jews in Witebsk who refused to come to work and which took place a short time before, because Foltis carried out this execution under the Fuehrer Order on his own initiative without the defendant Blume having issued such an order or having any knowledge of it.
While Sonderkommando 7 A stayed at Lake Loswida - about the end of July and beginning of August 1941 - Hauptsturmfuehrer Foltis was ordered to Welish to fight partisans. There Foltis independently and on his own initiative carried out the liquidation of 50 - 60 people. The defendant Blume did not issue an order in this case either, on the contrary, this liquidation was in contradiction to the firm resolution Blume had made in Witebsk after the liquidation there to avoid any similar situation by all means. The defendant Blume only learned about it when Foltis returned from Welish. He therefore had no chance to prevent the execution. Foltis acted within the framework of the Fuehrer Order.
Moreover, up to the middle of August 1941, Sonderkommando 7 a shot armed partisans or saboteurs in very rare cases only, altogether about 10 - 15 persons within 6 weeks. On the witness stand the defendant Blume testified that in such cases careful interrogations used to take place, and that executions which were ordered according to the Fuehrer Order concerning such cases were carried out only if the guilt of the partisans or saboteurs had been clearly proved. I believe I need not go into further details in this connection.
The above mentioned enumeration is complete (paragraphs 1-4). This has been confirmed by the defendant Blume on the witness stand under 26) oath.
As to the individual responsibility of the defendant Blume then there only remains the shooting of about 80 Jews in Witebsk on 19 or 20 July - - - - - - - - - - - - - - - - - - 26) Cf. transcript p. 1805 (on this page the translation unfortunate ly is incorrect and incomplete.)
1941, carried out by the defendant Blume by strict order of his superior Nebe. I want to call Your Honor's attention to the fact that the defendant Blume, from the beginning, admitted this case voluntarily and on his own. There is no report of events and no other evidence concerning this case. The defendant Blume in this connection is incriminated only by his own testimony which he gave voluntarily.
I should like to request the Court, in deciding the defendant Blume's guilt or innnocence in this case - Witebsk - to take into consideration all statements which I made in the first part of my plea concerning "unexpectability", and which the defendant Blume made on the witness stand about the details of the state of emergency in which he found himself at that time. The conclusion can only be as follows:
The defendant Blume could not be "expected" to act differently in the Witebsk case.
He had no other choice at that time. If he had refused to obey Nebe's order, a court martial proceeding would certainly have been started against him which would have resulted in a death sentence. This alternative, however, left no moral choice for him.
In this connection it is important that the defendant Blume - as far as his good character is concerned - was and is the very contrary of what the Prosecution has contended at the beginning of this trial. The Prosecution stated in its opening statement:
"Each of the defendants in the dock held a position of responsibility or command in an extermination unit. Each assumed the right to decide the fate of men, and death was the intended result of his power and contempt."
None of this has been proved against the defendant Blume. On the contrary, it is proved that the defendant Blume never wanted the killing of Jews, that he ordered it in a single case - Witebsk - only under extreme compulsion limiting it to able-bodied men and sparing women and children, that from Witebsk he sent a courageous report to his superior Nebe with the aim of preventing the liquidation of the Jews and of having the Fuehrer Order revoked ,27) that in his conversation with the local commander at Wilna he did not intend the killing of Jews, but recommended very limited measures under the necessity of the Fuehrer Order.
28) In accordance with this, all character testimonials offered on behalf of the defendant Blume give the picture of a splendid and good character (Blume documents nos.
15-29 and 31-34, also 11 and 12).29) I need not go into details. If I may summarize the most important facts in these affidavits, I may say that all these affiants always emphasized the following characteristics as the salient characteristics of the defendant Blume, namely, his open and sincere manner, his honesty and love of truth, his pleasant and kind manner which made him popular wherever he went, and his fairness in sports and his tolerance of other people's opinions.
As far as the affidavits refer to the professional activity of the defendant Blume, they confirm his absolutely correct and decent attitude and - briefly put - the fact that in his whole professional career he only served law and justice.
In conclusion I ask the Tribunal to acquit the defendant Blume on Count I and II of the Indictment.
Under Count III the defendant Blume has been charged with membership after 1 September 1939, in various organizations which have been declared criminal by the International Military Tribunal. I can be brief in discussing this Count.
a.) Count III, B of the Indictment charges the defendant Blume with having been a "member of Offices III, VI and VII of the Reich Security Main Office which constituted part of the SD. This, however, is a mistake. The defendant Blume was never a member of these offices of the RSHA.30) - - - - - - - - - - - - - - - - - - - - 27) Transcript pp. 1786-1787 and 1820. 28) Transcript pp. 1884 - 1888 29) Cf. transcript pp. 5234-5237 and transcript of 2 February, 1948, afternoon session, and transcript pp.
5232-5233 30) Cf. transcript pp. 1851 and 1877 - 1879.
b.) Count III, C of the Indictment charges the defendant Blume with having been a "member of Office IV of the Reich Security Main Office", which constituted part of the so-called Gestapo. This again is a mistake. The defendant Blume was never a member of Office OV of the RSHA.31)
c.) Count III, A of the Indictment charges the defendant Blume with membership in the Schutzstaffeln of the NSDAP, i.e. the so-called SS. In the final analysis this is not correct either; the defendant Blume can not be punished for this, either.
The International Military Tribunal in its judgment declared criminal only a certain group composed of those persons who officially became members of the SS, etc.32) The essence of this offense according to the clear wording of the IMT judgment is cooperation for criminal purposes in the above mentioned group of the organization.33) Before the IMT Justice Jackson spoke accordingly:34) "The purpose of declaring criminality of organizations.
... is punishment for aiding crimes...."
The defendant Blume was only a police official. He never did any service in the SS and therefore never rendered any "cooperation for criminal purposes" within the SS.35) He never held any position in the SS, but only a so-called assimilated rank. In this connection I refer to the official decree concerning this assimilation of ranks dated 23 June, 1938 (Blume document No. 10) and to Blume's testimony concerning this question.36) On the basis of this assimilated rank the defendant Blume was only a formal member, but no "real" or "active" member of the SS.
- - - - - - - - - - - - - - - - - - - - - 31) Cf. transcript pp. 1852 - 1853, and 1879 - 1881 32) Cf. Offocial Edition, vol. I, p. 273. 33) Cf. Offocial Edition, vol. I, p. 256 34) Cf. Official Edition, vol. VIII, p. 369 35) Cf. transcript p. 1848 36) Cf. transcript pp. 1848 - 1850.
Likewise irrelevant is the fact that the defendant Blume, 8 or 10 days before the German capitulation, received a military draft call for the Waffen-SS with the military rank of a private first class. like any other soldier, the defendant Blume had no possibility but to obey this draft order.37) The defendant Blume, therefore, must also be acquitted on Count III.
In conclusion I am going to deal with the question which could be called the "great problem" of the Nurenberg Trials. These are the questions concerning jurisdiction and justification of these tribunals and the doubts arising from Control Council Law No. 10.
Logically these statements should have been made at the beginning of this plea. However, I intentionally mention them at the end. For I believe that the statements made in the previous paragraphs I - III in themselves are sufficient a foundation for my request to acquit the defendant Blume. Moreover, in this case No. 9, we are faced with the fact that many thousand innocently exterminated human beings demand that justice be done. Therefore it might be said that it is of no relevancy whether e.g. this tribunal must be considered an American or an International one and whether Control Council Law No. 10 contains international law, be it as codification or innovation, or whether the four occupying powers in the Control Council Laws are competent merely to pass occupation laws (under Article 43 of the Hague Convention on Land Warfare), or whether they executedGerman legislative power since according to the Berlin Declaration of 5 June 1945, they assumed sovereign legislative power over the former German territory and its population, the very legislative power which Hitler held as dictator during the preceding years.
As a lawyer, however, I am familiar with the fact that in the realm of the l aw the formal aspect is very essential; and sometimes the ultimate problems of justice are hidden behind these formal questions. Therefore I should like to say a few words concerning the "great _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 37) Cf. transcript p. 1850.
problem" of the Nurenberg Trials.
THE PRESIDENT:Just a moment, please.
DR. LUMMERT:It is in the middle of page 30.
THE INTERPRETER:I am sorry, Your Honor, there is one page missing in the translation. Possibly it could be read slowly for translation.
DR. LUMMERT:You have read this already?
THE PRESIDENT :You have it now?
DR. LUMMERT:I thought the interpreter could read the missing paragraphs. At first I can read it to you.
THE INTERPRETER:Yes, that is possible.
DR. LUMMERT:The Prosecution in its Opening Statement called the Indictment a "plea of Humanity to Law."
What does Humanity means? Nobody has found more striking words for the explanation of this term than the German philosopher Johann Gottfried Herder. He was born in East Prussia and lived in Weimar after 1776 and during the years from 1793-1797 he published several collections of "Letters to promote Humanity" in connection with his "Ideas on the philosophy of the history of mankind." In the 27th letter he wrote the classic words:
"The divine in us therefore is education for humanity; all great and good people helped in it, legislators, inventors, philosophers, poets, artists, every noble man in his position, in the education of his children, in observing his duties, by example, work, institution, and philosophy. Humanity is the treasure and the result of all human strivings, it is the art of mankind. The education for it is a work which has to be continued ceaselessly; or also we, higher and lower classes, shall lapse back into crude animality, into brutality."
Whoever would not who leheartedly agree if this Humanity appeals to Law? But which is this Law? Under section I, 2a of this plea we saw that thus far the sovereignty and egoism of the individual States are the highest law on earth and that the alleged international law of Control Council Law No. 10 has thus far actually not been recognized by the individual sovereign States as supernational law nor has it been embodied in the Charter of the United Nations.
For the time being then, only the sovereign power of the victor States is using those new principles of law against citizens of defeated Germany unilaterally. From this one-sidedness results the doubt in the "justice", and also the "great problem" of the Nurenberg Trials. This problem will remain unsolved as long as the "reign of Law" in an "organized mankind" in the sense of the great ideas of President Wilson has not actually been established. This problem, on the contrary, would be decided in the negative if the organization of mankind does not take place. For in this case "les lois de l'humanite etdles exigences de la conscience publique" (the Laws of humanity and dictates of the public conscience) which have already been mentioned in the introduction to the Hague Convention on Land Warfare as the basis for this Convention, could not be realized. Present world developments, just as in the years after 1918, are obviously getting away from this goal.
Whoever, like myself, believes that it is the meaning of History, gradually to overcome force among men in favor of a general peace and a supernational law of mankind, can only fear that the work done in the Nurenberg "Palace of Justice" during the past 2 1/2 years might have been one-sided and therefore in the final analysis vain and unjust.
May the judgment of the Tribunal in this great trial bring us closer to the solution of the legal problems of mankind.
THE PRESIDENT:Dr. Lummert, I wish to congratulate you on the excellent manner in which you have presented your plea in English, although that is not your native language.
DR. LUMMART:Thank you so much, Your Honors.
THE PRESIDENT:Who is ready now? Do we have the final summation of Dr. von Stein's? I don't have it.
You may proceed.
Your Honor, Members of the Court:
May I at the start of my final plea refer to the trial-brief which I have submitted. Where I have summarized the essential results of the evidence. Principally I wish to repeat here once more what I have particularly emphasized at the close of this trial-brief: That it is necessary to oppose in the strongest possible way the contention expressed by the Prosecution that they need carry only a minor part of the burden of proof in regard to the culpable participation of the defendants in the criminal acts alleged in large outline by the Prosecution. The more grievous the misdeeds are with which a defendant is charged the more conscientiously and indubitably must it be proven that he really committed these acts. May I refer here to the statements of the Military Tribunal No. IV in the judgment of Case V. (Quoted in the JOST-Doc. Book IV, Page 7, JOST Doc. No. 36). At the close of the trial-brief it is explained what remains of proven criminal acts on the part of the defendant Dr. SANDBERGER after the results of the evidence have been appraised. Therefrom it follows that essentially 2 questions are relevant for the decision of this Case:
1.) How are SANDBERGER's measures against Communist activists and
2.) how are SANDBERGER's measures against the Esthonia Jews to be judged?
SANDBERGER's measures against Communist activists.
1.) The reasons for the Fuehrer - Order.
The measures which SANDBERGER took against Communist activists were based on the Fuehrer-order. Inasfar as the order deals with Communist activists it is essentially based on the following considerations.
For HITLER the close connection between the Russian Bolshevist System of Government and the political movement of Communism was a fact. For him the Bolshevic State apparatus was the most important representative of the Communist movement and carrier of an active Imperialism, which was a mixture of Panslavism and the aim of Communistic world revolution.
Wherever Communism has come to power, the existing political and social leadership was rooted out. All experiences since 1917 showed this clearly, at least in the Baltic countries, which in 1940 were incorporated into the Bolshevist Federation of States. The witness MAE has also confirmed this specifically for Estonia. A clear example, true for all Baltic States, is given in the liquidation-list of the NKWD, published by the Canadian University Professor MIRCHCONELL and which I inserted in the Doc. Book SANDBERGER II.
Bolshevism also developed new types of warfare, the partisan war, the nature of which is depicted by the Bolshevists themselves in the brochure of the Press-Dep. of the Soviet Embassy in London "We are Guerillas" contained in OHLENDORF Document Book II, from this very description the illegality and criminality of this form of struggle in view of international law becomes evident. (Comp, also the opinion of University professor MAURACH submitted for OHLENDORF). This form of struggle consisted in preparation and execution of an illegal levee en masse on territory effectively occupied by enemy troops.
THE PRESIDENT:Dr. von Stein, you don't contend that partisan warfare was originated by the Bolshevists do you? You know that in the Napoleonic invasion of Russia partisan warfare was quite common. You know that historically, don't you?
DR. VON STEIN:Yes, Your Honor, I only want to contend that this partisan war developed in a particularly cress manned in the Eastern campaign.
THE PRESIDENT:But you say here, "Bolshevism also developed new types of warfare, the partisan war." Well, it certainly was not new,
DR. VON STEIN:No, Your Honor, I am not trying to spy it was new. I am merely trying to spy that the manner of fighting which had been developed by the Bolschevists was new, that is to say, fighting became more cruel all the time. It cannot be compared with the beginnings of the partisan war which you have just described.
THE PRESIDENT:Very well. Proceed.
DR. VON STEIN:It was a war to the knife; which was conducted by the partisans in the bitterest and cruelest manner. It threatened the reinforcements, replacements-and supply-communications in the rear of the troops. Particularly dangerous was this warfare in such vest en ere? as Russia. In regard to the Estonian area there was a very special danger in the fact that most important communication lines of the German Army Group North ran through Estonia, namely from the navel port of Reval over Narve and Pleskau to the front end from the Reichs-border over Dorpat in direction Leningrad. To nip such movements in the bud, or to keep them to as small a size as possible, severe measures were necessary for the sake of preservation of the whole fighting front. To this came the particular type of enemy. The Eastern man is capable of a fanatical toughness, almost unlimited endurance and simply limitless faith. For him the fight against the "fascist German troops" was a crusade. The idea of the Bolshevist State of the future was an idol for him, which he worshipped as he did the Icons in former times.
HITLER as Supreme War Lord had to decide what measures necessitated by the war he regarded as essential.
HITLER expected a total war in the East, as did indeed develop. That such a war would to a greater part unset the existing principles of international law was clear to him, freed with an enemy like Bolshevism.
For he know its attitude toward international Law, which meant nothing else but to keep its hands essentially free in case of a collision with a "capitalist state". (Compare also the opinion of University professor MAURACH, Document BOOK OHLENDORF II and SANDBERGER II-A).
The well-known British authority on international law LAUTERPACHT, by the wry, expressed a similar opinion for the case of total war (British Yearbook of International Law 1944, P. 72):
"But original proceeding before the municipal courts of the victors may seem to many a questionable method of removing outstanding doubts and laying down author itatively the existing Law on subjects of controversy".Total war has altered the complexion of many rules.
At a time when the "scorched earth" policy with regard to the belligerents own territory has become part of a widespread practice, general destruction of property ordered as an incident of broad military strategy will not property form the subject matter of a criminal indictment."
And further in 1941 HITLER may have been convinced that in such a war strong shock effects may be obtained by certain draconic measures, which as a final result may cause the weakening or disintegration of the enemy's will to resistance. Measures of such effect were regarded as admissible in the war against Japan.
Henry L. STIMSON, 1940 - 1945 secretary of War reports in his article: The decision to use the atomic bomb (Excerptly):
"to extract a genuine surrender from the emperor of Japan and his military advisors, a tremendous shock must be administered which should carry convincing proof of our power to destroy the Empire.
Such an effective shock would save more lives, both American and Japanese, than it would cost."
Transferring these conditions to the war in the East, HITLER Was of the conviction by such measures to nip the partisan war in the bud or to suppress it effectively.
The welfare of the whole front was menaced by the unrestricted partisan war. HITLER may have expected a shock effect from the measure he ordered, which in the end would save the lives of an infinitely greater number of German soldiers. I have proven that just in the Estonian Territory the Soviet leadership put great importance to partisan movements in the widest sense of the word. It even left the most important officials back in Estonia in order to organize as extensive and effective an underground movement against the Germans as possible. 2.) Was the Fuehrer-order to that extent admissible according to international law.
The Fuehrer-order had as its first objective the safeguarding of the territory occupied effectively by the German Wehrmacht. Inasmuch as Communist functionaries actually distrubed or threatened the security, as active directors of sabotage or espionage organizations, or by sabotage, incitements and other hostile acts, murder, espionage, possession and use of weapons, they could be shot according to the law of war (war rebels). Here the same principles would apply as have been developed for the illegal levee on masse in the occupied rear of the troops.
So says i.e. OPPENHEIM Vol. II, Par, 116, Page 278/279:
"What kinds of violent means may be applied for these purposes, is in the discretion of the military authorities.
But there is no doubt, that if necessary, capital punishment and imprisonment are lawful means for those purposes."
Inasmuch as Communist functionaries actually committed acts of insurrection and resistance or other serious crimes and inasmuch as such acts were proven to them, they could be shot in accordance with international law.
Obviously the same principles are applied in the struggle on the Greek northern border.
These principles correspond also to the American practices of war.