I do not hesitate to state that the Fuehrer Order did not comply precisely with Germany's obligations toward the Western Powers according to international law, treaties or customary procedures in the sense of the obligations which were binding at the commencement of World War II.
But that is in my opinion not the decisive factor.
The decisive factor seems to me to be whether and to what extent Germany violated by the Fuehrer Order her obligations towards Russia which were imposed by international law, since the Fuehrer Order referred to Russian nationals in Russian territory. My client's acts were carried out exclusively against Russian nationals in Russian territory.
In my Trial Brief I explained in detail how international relations between Germany and Russia developed after 1917, and how Russia behaved since 1917 towards other countries. I have furthermore explained in how far Russia ignored existing international law true to her ideology and aims. I refer now to these explanations and restrict myself to drawing the legal conclusions from this situation.
No international treaties regarding the conduct of war existed between Germany and Russia. Nor did any international common law or custom develop between 1917 and 1941 between Germany and Russia.
Nor would the development of such procedure have been possible in view of the attitude of the USSR to international law.
Owing to her knowledge of this behavior and of Russia's fundamental attitude to modern war - I remind you, for example, of the guerilla warfare - Germany had reason to be convinced that this war would be conducted from the very first day without the slightest respect for international law on the part of the enemy. I am convinced that in these circumstances Germany was not bound by the principles of international law which applied to her relations to the Western Powers. The Tribunal must consider the question to what extent HITLER's order and its execution constitutes a violation of international obligations towards Russia - and that is all that interests us here.
The defendant could not have recognized the war against Russia as being a criminal war of aggression.
I now refer to the note from the foreign Office to the Soviet government which was published in the entire German press and broadcast throughout the world (document Book II pp. 17 ff.)
Is the defendant to be reproached for having regarded this war as a justified preventive war? Looking back on events, can one today bring such a reproach, in view of the statements made by the leading American diplomats BYRNES and BULLET and quoted in my Trial Brief?
In my Trial Brief 1 have already brought up the further question and dealt with the matter to what extent, in the light of recent knowledge and developments in the sphere of world politics, the affirmation of the IMT can be maintained that the war against Russia was "a criminal war of aggression", "an obvious attack", without a shadow of justification!I believe that after the IMT verdict in September 1946 facts became known which necessitate the re-examination of that decision by this Tribunal.
If this war was not an unjustified war of aggression, but a justified preventive war, then, on the basis of my explanations in the Trial Brief on the subject of the ideology, aims and practice in the USSR, to which I refer, the question arises, in how far the German Reich found itself, in this war against Russia, in a genuine state of national emergency, and whether this justified the orders given by HITLER.
I refer to the statements made on this point by Dr. ASCHENAUER in the body of his closing Brief and make them the subject of my defense plea. Similarly, with regard to the question of an assumed state of emergency (Putativnotstand) I refer to Dr. ASCHENAUER's statement on this question.
Whether and in how far the individual orders were justified or expedient in view of the assumed state of emergency was outside the experience and judgment of the Defendant.
Next to the grounds for justification or exclusion of guilt of the higher order, and the belief in legality and the absence of consciousness of violating the law resulting therefrom, next to the question of national emergency or assumed national emergency, we have to consider the actual state of emergency in which the defendant found himself, which places his conduct outside the limits of criminal responsibility.
The Defendant has explained credibly from the witness stand that he was convinced that the Fuehrer Order was justified, i.e. that it was created constitutionally within the rights vested in Adolf HITLER as Head of the State, supreme lawmaker and warlord (Transcript p.3094) and was therefore binding also for the recipient of the order.
He further stated, in reply to questions of the presiding Judge, that he had not been able to form a critical opinion concerning the necessity of this order, its ethics and its morals, in view of the special conditions on the Eastern front and in view of the behavior of this enemy who right from the start dropped all restrictions of a normal conduct of war, and also in view of the scope which this Second World War had assumed on both sides - beginning with the events in the East through the bomb terror to which hundreds of thousands of innocent German women and children, sick end aged people succumbed, to the use of the atom bomb which took each time within a few minutes the life of many tens of thousands - and again without any discrimination of ago and sex.
The Defendant does not wish to call all these happenings criminal since they originated from serious and severe considerations of the political end military leaders on both sides who obviously considered these measures necessary in order to decide the war in their favor transcript page 3091/92). In one respect, however, the Defendant did not leave the least doubt during the proceeding, not even for one moment, namely that he resented the Fuehrer Order for humanitarian reasons, that he considered it wrong inspite of its legal character and inspite of its constitutional origin, that he never executed it on his own free will, that he never would have acted as he did upon his own initiative and that in the last respect he carried out the orders because there was no other possibility for him (Transcript page 3039/3110/3116).
The Prosecution was not able to prove that the Defendant approved of the Order even for one moment or that he was in accord with its contents, I explained in detail in my Trial Brief the conditions under which the actions of the Defendant occurred. I should like to refer to this.
The Defendant was transferred to the Einsatz without any action on his part, without his knowledge and by orders of the RSHA.
He was subject to the Articles of War and had to obey this Order, but he also had no reason whatsoever to object against it since, at the time he received the Einsatz orders, he had no knowledge of its activities nor, indeed, even knowledge of the position which he was to take.
Neither did he learn anything in Berlin about his tasks or his position in the Einsatz.
By submitting the BRAUNE Document No. 58 Exhibit 49 (document Book II Supplement III) 1 have proved that he was not placed in command of Kommando 11b which was stationed in Odessa until 2 November 1941 in Nicolajew, with effect from 10 November 1941.
There the Rumanian Commander-in-Chief, immediately after BRAUNE's arrival, demanded from BRAUNE and his Kommando the shooting of many tens of thousands of Jews. Dr. BRAUNE has proved clearly what was his personal attitude to the measures ordered against the Jews.
If he had complied with the demand of the Rumanian Commandant of Ohlendorf (who was the exponent of the executive power in this territory) nothing would have happened to him in view of the Fuehrer Decree, even inspite of OHLENDORF's ban in conducting general executions outside of the area under German Army jurisdiction.
The Defendant BRAUNE, however, refused and declined even then, when the Rumanians, preferring to the Fuehrer Decree, threatened to take diplomatic steps in Berlin (Transcript page 3126).
He refused, because here he had an opportunity to justify his refusal with the fact that the Rumanians had the executive power in this area and to refer thereto.
If the Defendant DR. BRAUNE had been filled with that contempt for humanity, the boundless hate which the prosecution falsely attributes to him, he would have had the opportunity here to discharge this hatred (of which he is unjustly accused) on tens of thousands of Jews. Dr. BRAUNE did the contrary however. He opposed all demands of the Rumanians. Nothing proves better his inner humane attitude to the Fuehrer Order than this fact. Not with words, but by action, did he prove how he acted in a situation which enabled him to make a free decision of his own. Not one Jew was killed at Odessa while he was in command. About one month later, at the beginning of December, the Commander-in-Chief of the 11th Army, in whom the executive power over Einsatzgruppe D was vested, gave the order that the Jews there were to be shot before Christmas (Transcript, page 3140, SCHUBERT Transcript p. 4671, OHLENDORF, p. 607). This order was issued in accordance with a Fuehrer Order. Dr. BRAUNE's office was in the same building as that of the Chief of the Einsatzgruppen. The leader of his Subkommando, Sturmbannfuehrer SCHULTZ, whose duty it was to carry out the executions, was opposed to doing so when the Chief of the Einsatzgruppen received the order from the Army. Dr. BRAUNE told his Chief that his Subkommando could not carry out the order with the few men and vehicles at his disposal.
The army provided vehicles and personnel, the Einsatzgruppe assigned members of Kommandos 10b and 11a as reinforcements and the newly arrived police detachments as support. Now what could the defendant do in such a situation?
The Prosecution has stated that it was the duty of the Defendant to prevent these murders.
It has never once tried to answer the question what the Defendant should have or could have done. It has not given an answer to this question because it cannot find an answer to it.
What possibilities were there for the Defendant to prevent the execution to the order? Or to wash his hands of the affair or even to limit its execution an any way? Should he have refused be accept the order?
OHLENDORF, his superior, whose negative attitude towards the Fuehrer Order is quite well known, declared as follows under oath:
"The men of my groups who are under indictment here were under my military command.
if they had not executed the order which they were given they would have been called to account for it by me.
If they had refused to execute the orders they would have had to be called to account for it by me.
There could be no doubt about it.
Whoever refused anything in the front lines would have met immediate death.
If the refusal would have come about in any other way a court martial would have brought about the same consequences.
The jurisdiction of courts-martial was great, but the sentences of the SS were gruesome."
Under such circumstances, the Defendant could not quietly refrain from carrying out the order, nor could he openly refuse to do so.
Either would have been a wasted self-sacrifice which would not have changed the course of events at all. In this entire matter, one must not forget that in November 1941, when the defendant assumed command, the Fuehrer Order had been carried out by the Kommando for months, and that the commanders and subordinate commanders were acquainted with the order.
Thus, my client would not even have been able to prevent the execution of the order by refraining from issuing any directives to that effect to his subordinates. For he no longer needed to issue such directives, nor did he do so.
The Fuehrer Order had been in effect since the beginning of the mission and was being carried out, and therefore did not require any directives from Dr. BRAUNE. Apart from the executions in Simferopol, which Dr. BRAUNE, in view of the circumstances, was completely unable to prevent, the latter, therefore, would have been unable to prevent the activity of his sub-commandos only by issuing an express order not to carry out the Fuehrer Order.
This, just as much as an open refusal, would have meant a wasted self-sacrifice, for a trial before SS and Police Courts for disobedience and refusal to comply with a Fuehrer Order on the front, could only have resulted in a death sentence. Thus the Defendant could not avoid or prevent the carrying out of the Fuehrer Order, by open refusal, tacit non-Compliance, or opposing orders, apart from the fact that every one of those measures would have meant his death. Thus, they did not present the defendant with a choice in keeping with ethical law. Merely in order to give a complete picture, 1 must mention the fact that he was not able to join the advancing troops with his Kommando, and thus evade the order.
This possibility was eliminated by the military situation in this sector of the Eastern Front and the geographical position of the Crimea as a peninsula.
During the course of the trial, both the Honorable tribunal, and the Prosecution have expressed doubt that such a punishment would have been the invitable result. In defense of my client, therefore, 1 should like to add the following statements: The Defense counsel has proved that under German laws of war, disobedience, refusal to obey an order, undermining the armed forces etc. called for the death penalty."
11 Feb 1948_M_MSD_6_1_Spears (Juelich) Oberfuehrer Ohlendorf, as the Defendant's superior, stated under oath that certain death would have been the result of refusal to obey an order. In his Posen speech, Himmler the highest SS-Fuehrer and supreme judicial authority in the entire field of SS jurisprudence, expressed clearly what he thought of disloyalty, even if it were only thoughts of disloyalty. And as far as a man like Himmler was concerned, there was no difference between disloyalty and disobedience.
Even if one wishes to assume that an SS Court Would have waived the death sentence: Himmler would have seen to it that an end was put to the man, either in a concentration camp or in "a compulsory suicide squad" of a disciplinary unit of the Waffen-SS.
There should however, be no doubt as to Hitler's ideas about disobedience of his orders in war-time. Those are the facts which confronted the Defendant. In view of all this, what is proved by the four cases listed by Herr Diels, in which "refusal to obey an order" did not result in death? (Prosecution Document Volume 5-D, Pages 40/41) In none of these cases had the order been given by Hitler.
Two cases occurred in 1933/34, and in the third case, concerning Herr Diels, a Gauleiter was allegedly the person who had issued the order. Even the example of Rittmeister (Captain, Cavalry) FaberCastell is not really a convincing argument for the application of Article 47 of the Military Penal Code (MSTGB) to the Fuehrer Order. He opposed an illegal "direct" order, that is an order of a direct superior. This is, however, exactly the sort of case covered by Article 47 of the German Military Penal Code (MSTGB). It says nothing about the impossibility of applying Article 47 to the Military Penal Code (MSTGB) to an order by the Supreme Commander-inChief.
I also refer to the additional affidavit given by Herr Diels in the meantime, and submitted by Dr. Aschenauer in behalf of Herr Ohlendorf.
11 Feb 1948_M_MSD_6_2_Spears (Juelich) On the other hand, I believe that it is more difficult to evaluate the fact that the Prosecution, in spite of 2 1/2 years of investigation, and even though it has access to the entire collection of German documentary material - material which both incriminates and exonerates the defendants, - has nevertheless not been able to produce even one single case in which so much as one German Feldmarschall or General opposed a Fuehrer Order.
Should then a man with the rank of major have been expected to oppose in such a manner not only Hitler's Order but also at the same time the order of one of these Feldmarschalls? That would be going far beyond the bounds of what could be reasonably expected of a man. I refer to the judgment of Dr. Loew the record of whose interrogation was submitted as a Prosecution Document.
In connection with the refusal to obey an order, he stated the following even with regard to an order by Keitel:
"The result would have been self-annihilations and indirectly, a certain historical improvement."
I believe that there is no debut that this "self annihilation with an indirect historical improvement" did not constitute a choice in keeping with ethical law.
The Defendant would not have been able to obtain a transfer, but even if he had, this would not have altered events anyhow. Oberfuehrer Ohlendorf himslef stated, during his examination (Court Transcript, Pages 743/44) that such an attempt on Braune's part would have been a wasted effort.
That is also the reason that on the witness-stand, the Defendant truthfully stated (Pages 3110-13, Court Transcript) that he had not made such an attempt. Similarly the Defendant could not have evaded the incident by reporting ill, apart from the fact that even if he had, it would not have delayed the execution of the Fuehrer Order by so much as one day.
Every soldier knows that on the front one cannot have oneself transferred back to the homeland under the pretext of illness. But 11 Feb 1948_M_MSD_6_3_Spears (Juelich) But at this point as well I dare to rasie the question of whether malingering is a "choice in keeping with ethical law", for a soldier at the front, in his people's struggle for existence against Bolshevism, - apart from the fact that there was also danger of his being exposed and courtmartialled.
In this case as well, the Defendant would have incurred the danger of the depth sentence, in view of the following:
"The following shall "be guilty of undermining German defensive strength and shall be 'punished by death. whoever under takes to cause himelf or another to avoid the fulfilment of military service entirely, to a limit extent, or temporatily by means of self-mutiliation, or by means designed to deceive or "by any other methods.
In the witness-stand, the Defendant expressed his opinion on the question of possible desertion and stated as follows:
"I would not have deserted, when my people was in a struggle for its very existence. But I would not desert under any circumstances to an enemy like Bolshevism," (Transcript, page 3104) All that I can add to that is that the Defendant could not have been expected to give himself up to the Bolshevists.
Last of all, the additional question could be raised, as to why the Defendant did not attempt, together with Herr Ohlendorf, his superior, with whom he was on very friendly terms, to refuse to carry out the order or to sabotage it quietly. I joint refusal would have constituted mutiny. For this the laws of war of all nations know only one penalty. At the front at any rate: shooting by courtmartial. But a silent failure to carry out the order was also out of the question, under the given circumstances. The Army and superior authorities would have found out about it very soon and would have punished it as disobedience and refusal to obey an order.
I have already shown that a refusal, with an appeal to Article 47 of the Military Penal Code (MSTGB) was impossible.
Thus even if the highest of standards are applied, and all 11 Feb 1948_M_MSD_6_4_Spears (Juelich) possibilities considered, the following is still apparent:
the Defendant was absolutely unable to avoid or prevent his Commando from carrying out the order. No matter what he would have done, it would not have altered matters any as far as execution of the order was concerned.
He himself, however, could have avoided the order only by sacrificing his own life. There is no legal concept in the world that demands of a man that he consciously sacrifice his own life, especially if the self-sacrifice seems wasted. And in this case, it would have been wasted, for it could in no way have altered the entire course of events. Finally with regard to the problems of the state of emergency brought about by the order and the problem of what could be expected of a man, I take the liberty of referring to the statements by Dr. Lummert and Dr. Gawlik.
Thus, on the basis of the legal situation which I have discussed till now, I have reached the following conclusion:
On the basis of legal principles existent in Germany till 1945, and, as for as the Defendant knew, in European and AngloAmerican countries. as well, the Defendant cannot be considered guilty of having committed war crimes or crimes against humanity.
Upon the order of the supreme Head of the State and of the Supreme Military Commander, he dealt with a matter which justifies the conduct of the Defendant, in the light of national and international legal concepts existent till 1945. Article 47 cannot be applied to the Fuehrer Order.
Dr. Braune's acts were justified by his awareness that according to the legal principles existent up till 1945, national law was superior to international law, and that also, in case of conflict, every subject must obey the law of his State.
The Defendant acted in the awareness that Hitler's order was legal, that is, issued within the scope of Hitler's constitutional rights as Supreme Head of the State and Supreme Military Authority, 11 Feb 1948_M_MSD_6_5_Spears (Juelich) Furthermore, I wish to point out that in Germany's struggle with the USSR, there were no international obligations towards the USSR, and that therefore violations of international law against the USSR could not be committed.
The Defendant acted during a time that Germany was in a state of national emergency, and he should at least be given the benefit of pleading a presumed state of national emergency on the basis of the evidence which has been submitted concerning the picture which Reich Leaders gave to the German People concerning the reasons for, and the nature of, the war against the USSR.
Up till 1945, there were no legal systems and no legal regulations which could provide the gasis for the Defendant to be punished in view of the circumstances and conditions that have been described here.
The Prosecution confronts him with Control Council Law No. 10 dated 20 December 1945 and bases its request for his punishment on this law. The time at my disposal is not sufficient for me to deal with the problematic nature of this law as I should.
I therefore refer to it only briefly:
The Control Council Law invalidates two fundamental legal principles of the legal systems of all civilized nations:
The Principle: nulla poena sine lege.
Validity of the excuse of having acted under orders.
The reason given for this abandonment of legal principles previously existent in the entire world, is that the Control Council Law aims at the creation of a new international law, the expressions of laws of humanity to be binding upon the entire world. It is based on the reason that it is the expression of international law existent at the time that the law was created, that the law of war is not derived from treaties alone, but also from the international usages and customs, which have gradually found general recognition. This law is not rigid, but, by constant adaptation, it follows the requirements of a changing world; it is the essential nucleus of a new law, that individual persons have international obligations over and above national 11 Feb 1948_M_MSD_Spears (Juleich) 6-6 obligations, imposed upon them by obedience to the individual state.
Those are, in the main, the main reasons given by the IMT in order to justify the Statute - and thus also the Control Council Law derived from it.
Nevertheless, in my opinion, the Honorable Tribunal cannot disregard the following points:
1) Do these reasons justify the creation and application of a new international law with retroactive force or rather, should not such revolutionary laws which invalidate the law existent in the entire world up till now, be considered as valid only from that they come into force? However, if it is to be applied retrospectively to the leading men of a state because they knew of this new development of the law not yet codified, does this thesis then also justify its application to the subject of the State, who was forced by martial law to carry out laws and orders of the head of state and of its leading men?
2). If the Control Concil Law were the expression of the valid International Law at that time the former was created, was this International Law then also valid in respect to the USSR, that is a state which since its establishment did not know anything binding it to International Law, and towards which Germany did not possess any duties as far as International Law is concerned, neither those arising from contracts, nor from common law, nor those created by custom?
Besides it would have to be examined, whether or not this new International Law was valid in 1941/42 already, and if so, whether or not it was possible for the defendants to know it at all.
The problem arises: "Where did this new International Law appear for the first time perceivable for the German state's subject, so that he was able to know it?
As argument of its verdict the IMT quotes American Court decisions. To which of these defendants could it be imputed that he had learned 11 Feb 1948_M_MSD_6_7_Spears (Juelich) of such decisions during the war, quite apart from the problem, whether or not decisions made by American State Courts may constitute an International Law binding for all the world.
But the internal American State Law cannot be applied to the defendants here, for, as has been set forth by the Prosecution on page 56 of the Court transcript, the military tribunals in session here are international tribunals according to their character and indeed, a concept which the American Military Tribunal adopted in the verdict against the jurists, though the indictment was raised by the "United States of America".
Furthermore the IMT refers to customs and usages in the States, which gradually had found general recognition. Did the USSR also recognize them, so that they would have become binding for Germany? Was it effected by agreements? If not, was it effected by concluding actions?
I believe that the behavior of the USSR since 1917 proves the contrary.
Finally the following problem remains:
The IMT stresses the point, that it were the characteristic of the new law, that individuals had international duties, which transcend national duties, which are laid upon them by their obedience to the individual state.
Must then not the problem be raised:
Where is the international power, the international Court, which would protect the state's subject, who, in favor of the international duty violates the national law? Where was the international power in 1941, which would have protected the defendant against a sentence by German Court Martials on account of disobedience and refusal to carry out orders?
Those questions have not been answered by the IMT, and up to today they have not been answered yet.
Up to this very day there does not exist any Count and any power, 11 Feb 1948_M_MSD_6_8_Spears (Juelich) which would protect any state's subject if he violates the laws of his own state by fulfilling his international duties.
I do not believe that the High Tribunal will be able to pass over this problem when finding its verdict. But even if the High Tribunal would pass by all these problems, then it would not be able to disregard the following in its decision.
THE PRESIDENT:Dr. Mayer, do you think this would be a good point at which to have the morning recess?
DR. MAYER:Yes.
THE PRESIDENT:The Tribunal will be in recess 15 minutes.
(A recess was taken.)
COURT NO. II, CASE NO. IX.
THE MARSHAL:The Tribunal is again in session.
DR.MAYER (Attorney for the Defendant Braune): Your Honors, I now proceed with my final plea on page 51. It is also page 51 of the English text.
As I already mentioned in the beginning, the Control Council Law No. 10, too, will not see two justifications invalidated:
1.) The lacking consciousness of illegality 2. ) The emergency.
The former, however, does not find its expression in the verdict of the IMT, out it is impossible to perceive that a new International and World Law, as the base of which Control Council Law No. 10 was designated, would disregard the most primitive hypothesis of any guilt, namely, the consciousness of unlawfulness.
The recognition of the emergency as a Justification has been clearly expressed by the IMT on page 64 of the published text, where it says that not the existence of an order is the decisive moment, but "whether or not it was actually possible to effect a choice according to the moral code."
This principle was recognized in the verdict against Erhard Milch as well as in that against Flick.
Thus it is shown, that also when Control Council Law No. 10 of 1945 will be applied retrospectively to my client's behavior in 1941/42 a sentence does not seem justified, as this is opposed by the facts of a
a) lacking consciousness of illegality
b) justified reference to a genuine emergency. Finally I beg the high tribunal while finding its verdict to examine how far it was possible to assert this new International Law in reality and whether it thus found its justification, or whether it has remained a law for the defeated ones only, which is not only disregarded by the USSR and all states in its sphere of power, but also whether the Western victorious powers have not violated it, without any Court in the world applying this new law to these violations, and thus this new law has lost its ethical-moral foundations.
It cannot but result in disastrous consequences for a future development of the law, if in future two measures will still be applied in the world If it is true what the responsible press officer, George Martin of the Nuernberg trials published in the Munich newspaper, Muenchener Zeitung, a few weeks ago:
that only the German war criminals would be brought to trial and not also those of his own country and of its allies, because one were empowered to do so with the first, whereas to do so to the latter a proper tribunal were lacking yet, then I believe that no tribunal which is conscious of its responsibility to justice and history can pass by the above raised problems.
Finally Dr. Braune is charged with membership:
a) in the SS, or general SS
b) in Amt III, VI, or VII of the RSHA
c) in Amt IV of the RSHA as after 1 September 1939.
Dr. Braune belonged to the SS only in the framework of the SS-special formation SD, which comprised all members of the intelligence service on special subjects I want to supplement the SS, (Sachnachrichtendienst) SD (Amt III, VI and VII of the RSHA) and of the Security Police (Amt IV and V), as well as of the administrative Amt I and II of the RSHA.
This special SS formation SD was not declared criminal by the IMT, but only the "SD" was declared criminal, as far as it conprises Amt III, VI and VII as offices for special subjects (Sachaemter), and of the Security Police only the Secret State Police (Amt IV), and not also the Criminal Police (Amt V).These two groups, Gestapo and SD, were sentenced by the IMT outside the SS as two independent groups, as "Gestapo and SD" (see IMT verdict).The Prosecution did not take into account these facts, in sofar as it mistakenly identifies Amt III, VI and VII with the "Reich Security Service of the Reich Fuehrer-SS" (Page 18 of the indictment) There never existed a "Reich Security Service" of the Reich Fuehrer-SS". There was a Reich Security Service, which had nothing to do with the RSHA and the SD, but was a special protective unit for leading persons of the Reich, and which was subordinate to its own unit leader, SSFuehrer Rattenhuber.
