b) to supervise that the collection of money, jewels, and other valu ables of the persons who were to be shot, be convicted without the use of force; and that the persons designated for this by the Special Command 11b, hand over the collected items to the administration leaders and their deputies in order to have then passed on to Einsatzgruppe D.
c) to supervise that the execution be completed in the most humane and military manner possible, exactly according to Ohlendorf's orders.
"After the execution I had to report personally to Ohlendorf that the execu tion had been carried out exactly according to his orders.
"As commissioner of Ohlendorf I followed his orders.
I went to the Gypsy quarter of Simferopol and supervised the load ing of the persons who were to be shot, into a truck, I took care that the load ing was completed as quickly as possible and that there were no disturbances and unrest by the native population.
Fur thermore, I took care that the condemned persons were not beaten while the load ing was going on.
Since it was my task to supervise the whole execution, I could only stay a short time at each phase of it.
"The place which was designated for the shooting of these Russians and Jews was several kilometers outside of Sim feropol and about 500 meters off the road in an anti-tank ditch.
Among other things I ascertained that the traffic in that region was stopped by persons designated for this and was detoured on side roads.
When the condemned persons arrived at the place of execution, they were ordered to leave their money, their valuables and papers at a place designated for this.
I watched that none of the de posited items were kept by the SS and Orpo-men who were designated for the collection.
The depositing of this property by the condemned persons was finished without the use of force.
I supervised this phase carefully, in order that all the valuables could be handed over to the Einsatzgruppe D, for subsequent remittance to Berlin.
"For a short time, when the people who were to be shot were already standing in their positions in the tank ditch, I supervised the actual shooting which was carried out in strictest conformity with Ohlendorf's orders -- in a military and humane manner, as far as possible.
The people were shot with submachine guns and rifles.
I know that it was of the greatest importance to Ohlendorf to have the persons who were to be shot killed in the post humane and military manner possible because otherwise -in other methods of killing -- the moral strain (se*lische Belastung) would have been too great for the execution squad.
"I have read this statement, consisting of three p*---*s in the German language and declare that it is the whole truth to the best of my knowledge and belief.
I had the opportunity to make changes and corrections in the above statement.
I made this statement of my own free will without any promise of reward, and I was not subjected to any threat or duress whatsoever.
"Nuernberg, Germany, the 24 February 1947 (Signature) Heinz Hermann Schubert" That the execution described by Schubert actually took place is established conclusively not only by reports but by the testimony of other witnesses as well.
In fact, Schubert himself said:
"This was the execution which has been discussed here repeatedly.
It was the execution for which the 11th Army had given orders to the Ein satzgruppe to carry it out before a certain time.
This deadline, as far as I know, was Christmas or the end of the year 1941."
At the trial the defendant endeavored to dilute the force of his affidavit by saying that the word "supervise", which is frequently used in his narrative, does not correctly report the functions he performed at the execution; he did not supervise but merely inspected. The affidavit consisted of three pages, he made a correction on page 1 and initialed the correction, placed his abbreviated name at the bottom of the first two pages and signed his full name at the bottom of the last page.
However, even if the affidavit were to be disregarded, his recount on the witness stand of the part he played in the execution of defenselless and innocent people would clearly take him within the purview of Control Council Law No. 10.
When asked why these 700 to 800 people were shot he replied:
"I did not know why the individuals were being executed.
It is possible that there were persons among them who, because of some special examina tion were being executed.
As for me, in general, however, I was certain of one thing, that this was an execution based on the Fuehrer-Order."
When asked what he had done in the early stages of this operation he emphasized that he did not select the place for the execution. It was then pointed out to him that his affidavit did not so indicate:
"This does not say that you selected it.
It says that you went there to make certain that the place selected for the shooting was so located that it would fall within the regulations, namely, that there would not be any unnecessary witnesses to the shoot ing."
He affirmed this version. With regard to the taking of the valuables he also confirmed in court:
"I convinced myself that the collection of money and valuables of people to be shot was not done by force, etc."
The defendant tried to convey the impression that he merely looked on, more or less, as a spectator, but he admitted that he would have interfered if the execution had been laid in the wrong place, if weapons not prescribed by the chief of the Einsatzgruppe were used, and in general he would have intervened if things were not going "well".
Schubert's criminal involvement in the Christmas massacre of Simferopol is complete and presents no mitigating circumstances.
His general participation in the venture of Einsatzgruppe D while he was its adjutant is not to be doubted. The defendant Ohlendorf declared in an affidavit:
"The only people whom I generally assigned to inspections were, except for Schubert, Willi Seibert and Hans Gabel."
Schubert sought to minimize the implications of this statement and denied that he had been "generally assigned to inspections". He did, however, state that he knew "definitely" that Gabel "carried out such inspections". It would be strange, indeed, that Ohlendorf should mention three names, and it developed that the only one who performed the duties he assigned to them should be that one person who did not appear in this trial as a defendant.
It is also clear that the defendant was thoroughly aware of the instructions generally given by the Chief of the Einsatzgruppe with regard to the "manner of carrying out executions". It is furthermore evident that, as adjutant, Schubert was current on the assignments given to various members of the staff and, therefore, had full knowledge of the main purpose of the Einsatzgruppe.
From all the evidence in the case the Tribunal finds the defendant guilty under Counts I and II of the Indictment.
The Tribunal also finds that the defendant was a member of the criminal organizations S and SD under the conditions defined in the Judgment of the International Military Tribunal and is, therefore, guilty under Count III of the Indictment.
THE PRESIDENT:Matthias Graf.
Matthias Graf was never a commander of an einsatz unit nor during the whole time he served in Russia was he an officer. When first attached to Einsatzkommando 6 he held the rank of Unterscharfuehrer (corporal). After one year he was promoted to Scharfuehrer (sergeant) and when he left Russia in October 1942 he held the rank of Oberscharfuehrer (master sergeant), that is to say he remained in a non-commissioned officers' status throughout the entire period of his service with the kommando.
At the very outset he was made assistant to one Grimminger who served as SD expert. Upon Grimminger's death in July 1941 Graf took over his position.
Although Graf was statistically with Einsatzkommando 6 for thirteen months he served also for a short period with the Commander of the Security Police and the SD in Stalino. For five weeks he was detailed to the Liaison Office of AOK 17; he was on furlough for five weeks and was ill and on sick leave for about three months. Thus about five months of thirteen months' incumbency with the einsatzkommando were spent away from the unit. During the eight months he actually served with the organization, Graf never once acted as commander of it or any of its subdivisions.
In September 1942 Graf was assigned the command of a subkommando, but he refused to accept the assignment. Because of this refusal he was arrested and placed in custody for disciplinary action. Eventually the disciplinary proceedings were dropped and he was sent back to Germany.
The defendant, like every other defendant in court, is presumed to be innocent until proved guilty. The Prosecution has introduced reports showing that Einsatzkommando 6 engaged in various executive operations. It is not questioned that the kommando did participate in liquidating operations and, despite the defendant's denial, it is not to be doubted that he know of at least some of these executions. However, more than more knowledge of illegality or crime is required in order to establish guilt under Counts I and II of the Indictment. Furthermore, in view of his various absences from the kommando it can not be assumed that his membership in the organization of itself proves his presence at and knowledge of any particular executive operation, without there being proof of that fact.
In view of Graf's non-commissioned officer's status in an organization where rank was of vital importance, it is not to be assumed that the commander of the organization would take Graf into his confidence in planning an operation. As a non-commissioned officer he would not participate in officers' conferences. Since there is no evidence in the record that Graf was at any time in a position to protest against the illegal actions of others, he cannot be found guilty as an accessory under Counts I and II of the Indictment.
Since there is no proof that he personally participated in any of the executions or their planning, he may not be held as a principal.
Insofar as Counts I and II against the defendant are concerned the Tribunal concludes that the evidence does not rise to that degree of proof required by the principles of justice and the concomitant guarantees of correct procedure to warrant a finding of guilt beyond a reasonable doubt, and thus finds him not guilty.
The defendant joined the SS in 1933 and in 1936 was expelled because of lack of attendance and general indifference to the organization. It would appear that at no time was Graf a fanatical adherent of National Socialism. In 1932 he intended to go to South America but was prevented from doing so because of restriction on foreign currency. He tried to migrate in 1940 but could not do so because of the war. His primary interest was not politics but business. His Work Book, a document required under the Law of February 26, 1935 (published in Reich Law Gazette 311) lists him as an Independent Business man from the period of October 1, 1935 to February 1, 1940 and as a civil servant from March 1, 1940.
In January 1940 he was drafted under the Emergency Service Regulations for service with the Landrat in Kempten and then entered the SD-Aussenstelle in Kempten on a war supplementary basis.
In that same year, 1940, he endeavored to be released from the SD so that he might join the army. He took an interpreter's examination in order to qualify for linguistic services in the army but he did not succeed in his attempt. On April 18, 1941 he wrote a letter, seeking to be released from the SD so that he might be enrolled in the army. A copy of this letter was introduced as a document.
In considering the subject of membership in a criminal organization, as defined by the International Military Tribunal Decision, September 1, 1939 is accepted as a crucial date. On that date Graf was not a member of any criminal organization. When, in 1940, he was drafted by the Emergency Service Regulations he applied to rejoin the SS.
He explained that this application was purely a perfunctory function because he would automatically have fallen into this organization on account of his then being a member of the SD:
"The Personnel Departmental Chief could see from my documents that I used to be a member of the SS, so he said, 'Of course, in that case you have to rejoin the SS'. Therefore, I made out the ap plication, but, if I had not been de ferred to the SD, I would never have rejoined the SS, but I was transferred to the special formation, the SD.
After all, this was on the war emergency status.
In my opinion then, it was merely a formal matter to regain my former SS number."
In substantiation of his claim that he rejoined the SS because of the insistency of his departmental chief the defendant pointed out, that although drafted into war service on January 1, 1940 he did not make his application for the SS until July 28. Had he had a sincere desire to rejoin the SS, he would not have waited 7 months to make the application. He, therefore, submits that the filing of the application was a were form.
The Tribunal finds that the defendant's leaving the SS in 1936 showed a clear intention to disassociate himself from that organization and accepts the defendant's explanation that he would not have rejoined the SS in July 1940 had he not been drafted by the Emergency Service Regulations and deferred to the SD. The Tribunal therefore finds him not guilty of membership in the SS under the conditions declared criminal by the International Military Tribunal.
With regard to membership in the SD, reference is made to the IMT decision which declares that the Security Police and SD was a voluntary organization and that membership therein was voluntary. The Tribunal therefore finds the defendant guilty of membership in the SD. It further finds as a mitigating circumstance, however, that is membership in the SD was not without compulsion and constraint. It therefore adjudges that the period of the defendant's imprisonment from the date of his arrest, following the termination of the war, to the present date, shall constitute the sentence of the Tribunal based upon such conviction.
In view of the fact that the defendant has thus already served his term of imprisonment under the sentence just imposed, it is now ordered, that he be permanently discharged from custody under the Indictment upon adjournment of the Tribunal this day.
THE PRESIDENT:The Tribunal will now be in recess until tomorrow morning at ten o'clock.
(The Tribunal adjourned until 10 April 1948 at 1000 hours.)
Official Transcript of the American Military Tribunal in the Matter of the United States of America, against Otto Ohlendorf, et al.
, defendants sitting at Nuernberg, Germany, on 10 April 1948, 1000-1100, Justice Musmanno, presiding.
THE MARSHAL:The Honorable, the Judges of Military Tribunal II.
Military Tribunal II is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT:The Tribunal has the following order to promulgate with regard to sentences where the term of an imprisonment is indicated. The defendant involved will receive credit for the time already served by him in confinement from the first date of arrest following the termination of the war. The Marshal will produce the defendant Otto Ohlendorf.
Defendant OTTO OHLENDORF, on the counts of the indictment on which you have been convicted the Tribunal sentences you to death by hanging.
The Marshal will produce the defendant Heinz Jost.
Defendant HEINZ JOST, on the counts of the indictment on which you have been convicted the Tribunal sentences you to imprisonment for life.
The Marshal will produce the defendant Erich Naumann.
JUDGE SPEIGHT:Defendant ERICH NAUMANN, on the counts of the indictment on which you have been convicted the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Marshall will produce the defendant Erwin Schulz.
JUDGE SPEIGHT:Defendant ERWIN SCHULZ, on the counts of the indictment on which you have been convicted the Tribunal sentences you to twenty years imprisonment.
THE PRESIDENT:The Marshall will produce the defendant Franz six.
JUDGE DIXON:Defendant FRANZ SIX, on the counts of the indictment on which you have been convicted the Tribunal sentences you to twenty years imprisonment.
THE PRESIDENT:The Marshall will produce the defendant Paul Blobel.
JUDGE DIXON:Defendant PAUL BLOBEL, on the counts of the indictment on which you have been convicted the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Marshall will produce the defendant Walter Blume.
Defendant WALTER BLUME, on the counts of the indictment on which you have been convicted the Tribunal sentences you to death by hanging.
The Marshal will produce the defendant Martin Sandberger.
Defendant MARTIN SANDBERGER, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.
The Marshal will produce the defendant Willy Seibert.
JUDGE SPEIGHT:Defendant WILLI SEIBERT, on the counts of the indictment upon which you have been convicted, the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Marshal will produce the defendant Eugen Steimle.
JUDGE SPEIGHT:Defendant EUGEN STEIMLE, on the counts of the indictment upon which you have been convicted, the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Marshall will produce the defendant Ernest Biberstein.
JUDGE DIXON:Defendant ERNEST BIBERSTEIN, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Marshal will produce the defendant Werner Braune.
JUDGE DIXON:Defendant WERNER BRAUNE, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Marshal will produce the defendant Walter Haensch.
Defendant WALTER HAENSCH, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.
The Marshal will produce the defendant Gustav Nosske.
Defendant GUSTAV NOSSKE, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to imprisonment for life.
The Marshal will produce the defendant Adolf Ott.
JUDGE SPEIGHT:Defendant ADOLF OTT, on the counts of the indictment upon which you have been convicted, the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Marshal will produce the defendant Walter Klingelhoefer.
JUDGE DIXON:Defendant WALDEMAR KLINGELHOEFER, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Marshal will produce the defendant Lothar Fendler.
JUDGE DIXON:Defendant LOTHAR FENDLER, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to ten years imprisonment.
THE PRESIDENT:The Marshal will produce the defendant Waldemar von Radetzky.
Defendant WALDEMAR von RADETZKY, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to twenty years imprisonment.
The Marshal will produce the defendant Felix Ruehl.
Defendant FELIX RUEHL, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to ten years imprisonment.
The Marshal will produce the defendant Heinz Schubert.
JUDGE SPEIGHT:Defendant HEINZ SCHUBERT, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Marshal will produce the defendant Eduard Strauch.
JUDGE SPEIGHT:Defendant EDUARD STRAUCH, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.
THE PRESIDENT:The Tribunal is now adjourned.
THE MARSHAL:The Tribunal stands adjourned without call.
(The Tribunal adjourned without call.)