He asked, at least, for postponement of the executions. The Lieutenant in charge of the battalion refused to wait. The report continues:
"For the rest, as regards the executions of the action, I must point out to my deepest regret that the latter bordered already on sadism.
The town itself offered a picture of horror during the action.
With indescribable brutality on the part of both the German police officers and particularly the Lithuanian partisans, the Jewish people, but also among them White Ruthenians, were taken out of their dwellings and herded together.
Everywhere in the town shots were heard, and in different streets the corpses of shot Jews accumulated.
... In conclusion I find myself obliged to point out that the police battalion has looted in an unheard of manner during the action, and that not only in Jewish houses but just the same in those of the White Ruthenians.
Anything of use such as boots, leather, cloth, gold and other valuables, has been taken away.
On the basis of statements of the members of the Armed Forces, watches were torn off the arms of Jews in public, on the street, and rings were pulled off the fingers in the most brutal manner.
"A major of the Finance Department reported that a Jewish girl was asked by the police to obtain immediately 5,000 rubels to have her father released.
This girl is said to have actually gone everywhere to obtain the money."
For a nation at war nothing can be more important than that ammunition reach the soldiers holding the fighting frontiers. Yet, many vehicles loaded with ammunition for the armed forces were left standing in the streets of Sluzk because the Jewish drivers, already illegally forced into this service, had been liquidated by the Execution Battalion. Although the very life of the nation depended on the continued operation of every type of food-producing establishment, 15 of the 26 specialists at a cannery were shot.
The blood bath of Sluzk brought about some interesting correspondence. The Commissioner General inquired of the Reich Minister of Occupied Eastern Territories if the liquidation of Jews in the East was to take place without regard to the economic interests of the Wehrmacht and specialists in the armament industry. The Reich Minister replied:
"Clarification of the Jewish question has most likely been achieved by now through verbal discussions.
Economic considerations should fundamentally remain unconsidered in the settlement of the problem."
AGerman inspector of armament in the Ukraine, after a thorough investigation into the Jewish Liquidation Program, reported to General of the Infantry, Thomas, Chief of the Industrial Armament Department, that the project was a big mistake from the German point of view. In the Ukraine he found that the Jews represented almost the entire trade and even a substantial part of the manpower.
"The elimination, therefore, necessarily had far reaching economic consequences and even direct consequences F O R T H E A R M A M E N T I N D U S T R Y (Production for sypplying the troops)."The report goes on:
"The attitude of the Jewish population was anxious obliging from the beginning.
They tried to avoid everything that might displease the German administra tion.
That they hated the German administration and army inwardly goes without saying and cannot be surprising.
However, there is no proof that Jewry as a whole or even to a greater part was implicated in acts of sabotage.
Surely, there were some terrorists or saboteurs among them just as among the Ukrainians.
But it cannot be said that the Jews as such represented a danger to the German armed forces.
The output produced by Jews who, of course, were prompted by nothing but the feeling of fear, was satisfactory to the troops and the German administration."
What made the program of extermination particularly satanic was that the executions invariably took place not during the stress and turmoil of fighting or defense action, but after the fighting had ceased:
"The Jewish population remained temporarily unmolested shortly after the fighting.
Only weeks sometimes months later, specially detached formations of the police executed a planned shooting of Jews.
... The way these actions which included men and old men, women and children of all ages were carried out was horrible.
The great masses executed make this action more gigantic than any similar measure taken so far in the Soviet Union.
So far about 150,000 to 200,000 Jews may have been executed in the part of the Ukraine belonging to the Reichskommissariat (RK); no consideration was given to the interests of economy."
In a final appeal to reason this German inspector cries out:
"If we shoot the Jews, let the prisoners of war perish, condemn considerable parts of the urban population to death by starvation and also lose a part of the farming population by hunger during the next year, the question remains unanswered:
W H O I N A L L T H E W O R L D I S T H E N S U P P O S E D T O P R O D U C E E C O N O M I C V A L U E S H E R E?" No one answered the question of the inspector; Nor did any one answer the question of Humanity as to why those oceans of blood and this burning of a continent.
Reason, with its partner Conscience, had been lost long ago in the jungle of Nazi greed and arrogance, and so Madness ruled, Hate marched, the sky reddened with the flames of destruction and the World wept - and still weeps.
T H E L A W JURISDICTION On August 27, 1928 Germany signed and later ratified the general treaty for the Renunciation of War, more generally known as the Kellogg-Eriand Pact, wherein sixty-eight nations agreed:
"Article I. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations to one another.
"Article II. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts or whatever nature or whatever origin they may be, which may arise among them, shall never be sought, except by pacific means."
In spite of this unequivocal universal condemnation of war, the fifth decade of the twentieth century witnessed a conflict at arms of global proportions which wrought such devastation on land and sea and so convulsed organized society that, for many decades yet to come, men, women and children in every land will feel and suffer its consequences.
On August 8, 1945, representatives of Great Britain, France, Russia and the United States met in London and entered into an agreement for the trial of war criminals ascertained to be such. Nineteen other nations expressed their adherence to this agreement.
On September 30, 1946, the International Military Tribunal, created by the London Agreement, after a trial which lasted ten months, rendered a decision which proclaimed that Germany had precipitated World War II and, by violating international commitments and obliga tions, had waged aggressive war.
The International Military Tribunal, in addition to rendering judgment against specific individuals, declared certain organizations, which were outstanding instruments of Nazism, to be criminal.
On December 20, 1945, the Allied Control Council, composed of representatives of the same four above-mentioned nations and constituting the highest legislative authority for Germany, enacted Law No. 10, concerning "Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity". This Tribunal came into being under the provisions of that Law, but while the Tribunal derives its existence from the authority indicated, its jurisdiction over the subject matter results from International Law valid long prior to World War II.
Defense Counsel have advanced various arguments on the law applicable to this case. In view of their representations and the gravity of the case itself, the various phases of the law will be discussed with more detail than perhaps ordinarily the situation might require.
Under International Law the defendants are entitled to a fair and impartial trial, which the Tribunal has endeavored throughout the long proceedings to guarantee to than in every way. The precept that every man is presumed innocent until proved guilty has held and holds true as to each and every defendant. The other equally sanctified rule that the Prosecution has the burden of proof and must prove the guilt of the accused beyond a reasonable doubt has been, and is, assured.
This trial opened on September 15, 1947, and the taking of evidence began on September 29. The Prosecution required but two days to present its case in chief because its evidence was entirely documentary. It introduced in all 253 documents. 136 days transpired in the presentation of evidence in behalf of the defendants, and they introduced, in addition to oral testimony, 731 documents. The trial itself was conducted in both English and German and was recorded steno graphically and in both languages.
The transcript of the oral testimony consists of more than 6,500 pages. An electric recording of all proceedings was also made. Copies of documents introduced by the Prosecution in evidence were served on the defendants in the German language.
The Judgment in this case will treat the several defendants separately in the latter part of the Opinion, but since many items of defense, especially in argumentation, are common to more than one of the defendants they will be discussed collectively to avoid repitition during the individual treatments. It is to be emphasized that the general discussion and collective description of acts or defenses of defendants need not apply to each and every defendant in the box. Any general reference will necessarily apply to a majority of them but that majority need not always consist of the same persons. As already stated, the individual treatments will appear at the end.
THE PRESIDENT:The Tribunal will now be in recess until 1:45.
(A recess was taken until 1345 hours.)
AFTERNOON SESSION (The Tribunal reconvened at 1345 hours.)
THE MARSHAL:The Tribunal is again in session.
THE PRESIDENT:Judge Dixon will continue with the reading of the Judgment.
JUDGE DIXON:
The arguments put forth by the defense may be grouped under four different headings and will be discussed in that order by the Tribunal: Jurisdiction, Self Defense and Necessity, Superior Orders and Non-Involvement.
The substantive provisions of Control Council Law No. 10 which are pertinent in this case, read as follows:
Art. II, 1. (b) War Crimes. Atrocities or of fenses against persons or property constituting violations of laws or customs of war, including but not limited to, murder, ill-treatment or deportation to slave labor or for anyother purpose, of civilian population from occupied territory, murder or ill-treatment of prisoners of war or persons on the seas,kill ing of hostages, plunder of public or private property, wanton destruc tion of cities, towns or Villages, or devastation not justified by military necessity.
(c) Crimes against Humanity.
Atrocities and offenses, including but not limited to murder, exter mination, enslavement, deportation, imprisonment, torture, rape or other inhumane acts committed against any civilian population, or persecutions on political, ra cial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
(d) Membership in categories of a criminal group or organization de clared criminal by the International Military Tribunal.
2. Any person without regard to nation ality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, ifhe was (a) a principle or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (in cluding General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country."
Control Council Law No. 10 was attacked by Defense Counsel at the beginning of the trial, at the end of the trial, and even after all evidence and documentation had been received and arguments closed. In a motion filed February 20, 1948, counsel renewed their representations that this law was inapplicable to the instant case because of the fact that Russia, on August 23, 1939. signed a secret treaty with Germany agreeing to a division of Poland. In the argument supporting their motion, Counsel do not dwell on the fact that in signing the agreement with in Russia, Germany naturally became a party to the very transaction involved. However, in spite of this very definite concurrence by Germany in Russia's acts, insofar as they arose out of the so called secret agreement, Defense Counsel submitted that Russia disqualified herself from membership in the Allied Control Council and that, therefore, any agreement reached with her as one of the signatory powers must necessarily be void. The argument is wholly lacking in merit.
The matter of responsibility for breach of the International Peace was fully considered and decided by the International Military Tribunal in its decision of September 30,1946:
" The Tribunal is fully satisfied by the evidence that the war initiated by Ger many against Poland on the 1st September 1939 was most plainly an aggressive war, which was to develop in due course into a war which embraced almost the whole world, and resulted in the commission of countless crimes, both against the laws and customs of war, and against humanity."
It was this monstrously selfish and evil aggression which precipiatated, as the International Military Tribunal pointed out, a global war whose effects are visible today throughout the world. The legal consequences drawn from the International Military Tribunal *** *** *** *** may not be altered by the assertion that someone else may also have been at fault.
At the final argument* in the case various Defense counsel spoke of international events which followed the ending of the war. It is intended as no offense to Defense Counsel to say that is would seem they are seeking to fish in troubled waters, or what they assume to be an agitated sea. Nonetheless, the Tribunal must refuse representations and arguments upon that subject. The defendants in this case stand accused of crimes which occured during the war. History's footsteps since the termination of World War II can not obliterate the blood marks of that collossal and tragic conflict.
While the Tribunal placed no limitations on the scope of Defense Counsel's representations, as in justice it should not, it does not follow that everything was relevant to the issue in the case. It is only by hearing an argument that one can conclusively determine its materiality or lack of materiality. However, the Tribunal now decides, after hearing and analyzing all the evidence, that discussions in this case on the ante-war relationship between Germany and Russia are Immaterial. It further decide* that representations on the post-war relationship Russia and the rest of the world are equally irrelevant.
Although advancing the proposition that Russia signed a secret treaty with Germany prior to the Polish war, the Defense said or presented nothing in the way of evidence to overcome the well considered conclusion of the International Military Tribunal that Germany started an aggressive war against Russia.
On the basis of this finding alone, Russia's participation in the Allied Council which formulated Law No. 10 was legal and correct and in entire accordance with International Law.
Furthermore, Defense Counsel's representations in this respect have no bearing on the charges in this Indictment. They are not defending Germany as a nation in this trial. They are representing individuals accused of specific crimes under Law No. 10, which, like the Charter of the International Military Tribunal, was not an arbitrary exercise of power of the victorious nations but the expression of Internation Law existing at the time of its creation. Control Council Law No. 10 is but the codification and systemization of already existing legal principles, rules and customs. Under the title of Crimes against Humanity, these rules and customs are the common heritage of civilized peoples, and, in so far as War Crimes are concerned, they have been recognized in various International Conventions, to which Germany was a party, and they have been International Law for decades if not centuries. As far back as 1631, Grotius, in his De Jure Belle ac Pacis, wrote:
"But.....far must we be from admitting the conceit of some, that the Obligation of all Right ceases in war; nor when under taken ought it to be carried on beyond the Bounds of Justice and Fidelity."
The German author Schaetzel, in his book "Bestrafungen nach Kriegsgebrauch, published in 1920, stated:
".....The Laws and Customs of Warfare are law not because they are reproduced in the Field Manual but because they are International Law.
The Imperial Decree (of 1899) speaks ofpunishment 'in accord ance with the laws, the customs of war and special decrees of competent military authorities' (Art.
2). This shows clearly that the customs of war are recognized as a source of law.
They are binding on in dividuals by virtue of the Imperial Decree which orders the authorities administering justice to follow these rules.
"The customs of war are substantive penal law as good as the State's penal legislation."
Defense Counsel have particularly thrust at Control Council Law No. 10 with Latin maxim Nullem crimen sine lege, nulla peona sine lege. It is indeed fundamental in every system of civilized jurisprudence that no one may be punished for an act which was not prohibited at the time of its commission. But it must be understood that the "lex" referred to is not restricted to statutory law. Law does, in fact, come into being as the result of formal written enactment and thus we have codes, treaties, conventions, and the like, but it may also develop effectively through custom and usageand through the application of Common Law. The latter methods are no less binding than the former. The International Military Tribunal, in its decision of September 30, 1946, declared:
"International Law is not the product of an international legislature.
.....
This law is not static, but by con tinual adaptation follows the needs of a changing world."
Of course some fields of International Law have been codified to a substantial degree and one such subject is the law of Land Warfare which includes the Law of Belligerent Occupation because belligerent occupation is incidental to warfare. The Hague Regulations, for instance, represent such a codification. Article 46 of those Regulations provides with regard to invading and occupying armies that:
"Family honor and rights, the lives of persons and private property, as well as religious convictions, and practice must be respected."
This provision imposed obligations on Germany not only because Germany signed signed the Hague Convention on Land Warfare, but because it had become International Law binding on all nations.
But the jurisdiction of this Tribunal over the subject matter before it does not depend alone on this specific pronouncement of International Law. As already indicated, all nations have held themselves bound to the rules or laws of war which came into being through common recognition and acknowledgement.
Without exception these rules universally condemn the wanton killing of non-combatants. In the main, the defendants in this case are charged with murder. Certainly no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder.
Whether any individual defendant is guilty of unlawful killing is a question which will be determined later, but it cannot be said that prior to Control Council Law No. 10 there existed no law against murder. The killing of a human being has always been a potential crime which called for explanation. The person standing with drawn dagger over afresh corpse must, by the very nature of justice, exonerate himself. This he may well do, advancing self defense or legal authorization for the deed, or he may establish that the perpetrator of the homicide was one other than himself.
It is not questioned that the defendants were close enough to mass killings to be called upon for an explanation -- and to whom are they to render explanation so that their innocence or guilt may be determined? Is the matter of some one million non-military deaths to be denied judicial inquiry because a Tribunal was not standing by, waiting for the apprehension of the suspects?
The specific enactments for the trial of war criminals which have governed the Nuremberg trials, have only provided a machinery for the actual application of international law theretofore existing. In the comparatively recent Saboteurs Case (Ex parte Quirin 317 U.S., 1, 1942) the Supreme Court of the United States affirmed that individual offenders against the rules and customs of war are amenable to punishment under the common law of nations without any prior designation of tribunal or procedure. In this connection reference may also be made to trials for piracy where, going back centuries, the offenders, regardless of nationality, were always tried in the arresting state without any previous designation of tribunal.
Military Tribunals for years have tried and punished violators of the rules of land warfare outlined in the Hague Convention, even though the Convention is silent on the subject of courts. The International Military Tribunal speaking to this subject said:
"The law of war is to be found not only in treaties, but in the customs and practices of states which grad ually obtained universal recognition, and from the general principles of justice applied by jurists and prac ticed by military courts."
All civilized nations have at times used military courts. Who questions that Prussia during the Franco-Prussian war and Germany during World War I and World War II utilized military courts to try subjects of other nations charged with violating the rules and laws of war?
There is no authority which denies any belligerent nation jurisdiction over individuals in its actual custody charged with violation of international law. And if a single nation may legally take jurisdiction in such instances, with what more reason may a number of nations agree, in the interest of justice, to try alleged violations of the international code of war?
In spite of all that has been said in this and other cases, no one would be so bold as to suggest that what occurred between Germany and Russia from June 1941 to May 1945 was anything but war, and, being war, that Russia would not have the right to try the alleged violators of the rules of war on her territory and against her people. And if Russia may do this alone, certainly she may concur with other nations who affirm that right.
Thus, Russia'a participation in the formulation of Control Council Law No. 10 is in accordance with every recognized principle of international law, and any attack on that participation is without legal support. The Tribunal also inds and concludes that Control Council Law No. 10 is not only in conformity with International Law but is in itself a highly significant contribution to written International Law.
International Law Applied to Individual Wrong-Doers Defense Counsel have urged that the responsibilities resulting from International Law do not apply to individuals.
It is a fallacy of no small proportion that international obligations can apply only to the abstract legal entities called States. Nations can act only through human beings, and when Germany signed, ratified and promulgated the Hague and Geneva Conventions, she bound each one of her subjects to their observance. Many German publications made frequent reference to these international pledges. The 1942 edition of the military manual edited by a military judge of the Luftwaffe, Dr. Waltzog, carried the following preface:
"Officers and noncoms have, before taking military measures, to examine whether their project agrees with International Law.
Every troop leader has been con fronted, at one time or another, with questions such as the following:
Am I entitled to take hostages; How do I have to behave if bearing a flag of truce;What do I have to do with a spy, what with a franctireur; What may I do as a permitted ruse of war; What may I requisition; What is, in turn, already looting and, therefore, forbidden;What do I do with a enemy soldier who lays down his arms; How should enemy paratroopers be treated in the air and after they have landed?"
An authoritative collection of German Military Law ("Das gesamte Deutsche Wehrrecht"), published since 1936 by two high government officials, with an introduction by Fieldmarshal von Blomberg, then Reich War Minister and Supreme Commander of the Armed Forces, carried in a 1940 supplement this important statement:
"The present war has shown, even more than wars of the past, the importance of disputes on International Law.
....
In this connection, the enemy propa ganda especially publicizes questions concerning the right to make war and concerning the war guilt, and thereby tries to cause confusion; this is another reason why it appears necessary fully to clarify and to make widely known the principles of International Law which are binding on the German conduct of war."
Every German soldier had his attention called to restrictions imposed by International Law in his very paybook which carried on the first page what was known as "The Ten Commandments for Warfare of the German Soldier". Article 7 of these rules provided specifically:
"The civilian populations should not be injured.
"The soldier is not allowed to loot or to destroy."
Further arguing the proposition of individual non-responsibility for their clients, several defense counsel have submitted that this trial in effect represents a trial of the victors over the vanquished. This objection dissolves so quickly under a serious glance that one wonders if it was presented reflectively. In the first place, the defendants are not being tried in any sense as "vanquished individuals" any more than it is to be assumed that a person taken into custory by police authorities is to be regarded as a "vanquished person". Wars are fought between nations as such and not between individuals as such. In war there is no legal entity such as a "defeated individual" just as there is no judicial concept of a "victorious individual". The defendants are in court not as members of a defeated nation but because they are charged with crime. They are being tried because they are accused of having offended against society itself, and society, as represented by international law, has summoned them for explanation. The doctrine that no member of a wronged community may try an accused would for all practical spell the end of justice in every country. It is the essence of criminal justice that the offended community inquires into the offense involved.
In the fullest appreciation of the responsibilities devolving upon the Tribunal in this particular phase of the case, as in all phases, reference is made to the speech by Mr. Justice Jackson in the International Military Tribunal trial in which he said:
"We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."
What Justice Jackson said at the beginning of that trial, this Tribunal says at the termination of the current trial.
SELF DEFENSE AND NECESSITY Dr. Aschenauer, speaking for the defendant Ohlendorf and such others whose cases fall within the general pattern of the Ohlendorf defense, declared that the majority of the defendants committed the acts with which they are charged -"(a) In presumed self defense on behalf of a third party.
(Putativnothilfe is the technical term in the German legal language).(b) Under conditions of presumed necessity to act for the rescue of a third party from immediate, otherwise unavoidable danger, (so-called 'Putativnotstand')."In other words, it is claimed that the defendants in committing the acts charged to them, acted in self defense for the benefit of a third party, the third party being Germany.
In developing this theme of defense for Germany, Dr. Aschenauer insisted that this Tribunal apply his interpretation of Soviet Law. One can not avoid noting the paradox of the defendant's invoking the law of a country whose jurisprudence, ideologies, government and social system were all declared antagonistic to Germany, and which very laws, ideologies, government and social system the defendants, with the rest of the German armed forces, had set out to destroy. However, it is the prerogative of Defense Counsel to advance any argument whichhe deems appropriate in behalf of his client and the fact that Dr. Aschenauer considers Soviet Law more modern than German Law cannot fail to be interesting.
"It has thus achieved the aim which the German, reform legislation has been striving at for a long time.
Acts of necessity are unrestrictedly admissible if they are necessary for the protection of higher interests in so far as the danger could not he averted by any other means."
Under this theory of law any belligerent who is hard-pressed would be allowed unilaterally to abrogate the laws and customs of war. And it takes no great amount of foresight to see that with such facile disregarding of restrictions, the rules of war would quickly disappear. Every belligerent could find a reason to assume that it had higher interests to protect. As untenable as is such a proposition, Dr. Aschenauer goes even further:
"If the existence of the State or of the nation is directly threatened, then any citizen -- and not only those ap pointed for this purpose by the State may act for their protection."
Under this state of law a citizen of Abyssinia could proceed to Norway and there kill a Norwegian on the basis that he, the Abyssinian, was motivated only by the desire to protect his country from an assumed aggression by the Norwegian.
And that is not all:
"An error concerning the prerequisites of self defense or of an act for the protection of a third party is to be treated as an error about facts and constitutes, according to the reason for, the avoidability and also the degree of gravity of the individual error, a legal excuse or -- at the very least -- a mitigating circumstance."
Thus, if the Abyssinian mentioned above, invaded Norway out of assumed necessity to protect his nation's interest, but it developed later that he killed the wrong person, he would be absolved because he had simply made a mistake. The fact that this astounding proposition is advanced in all seriousness demonstrates how desperate is the need for a further revaluation of the sacredness of life and for emphasizing the difference between patriotism and murder.
Dr. Aschenauer does not claim that the actual circumstances supported Staatsnothilfe (defense of endangered State), but he submits that this state of affairs does not render the deeds of the defendants any less legal provided the defendants assumed that conditions existed for the application of the above-mentioned legal concepts. In support of this argument he points out what he regards the objective conditions and the subjective conditions of the German-Russian war:
"The cast European Jewish problem as part of the problem of Bolshevism;origin and import of the defendants' obsession that a solution of the prob lem 'Bolshevism versus Europe' could only be brought about by a 'solution' of the Jewish problem and in their particular sphere only be unreserved execution of the Fuehrer-Order."
Thus, even an obsession becomes a valid defense, according to this theory.
Dr. Aschenauer's legal position on assumed self defense has been discussed not because it corresponds with any accepted tenets of international law but only for the purpose of demonstrating that under any law the acts of his client and others falling in that category cannot by the widest stretch of the imagination be justified as an act of self defense in behalf of German.
Even combatants may only be killed or otherwise harmed in accordance with well-established rules. And there is nothing in the most elementary rules of warfare to permit the killing of enemy civilians simply because they are deemed "dangerous". But in killing, e.g., Jews, the defendants did not succor Germany from any real danger, or assumed danger. Although they declared that the Jews were bearers of Bolshevism, it was not explained how they carried that flag. Nor did any one attempt to show how, assuming the Jews to be disposed towards Bolshevism, this per so translated itself into an attack on Germany. The mere adherence to the political doctrine of Bolshevism did not of itself constitute an aggression or potential aggression against Germany.
It was claimed that the killing of the Jews was predicated on the circumstances of the German-Russian War, but in point of fact Jews were oppressed in Germany and German-occupied territory long prior to that war. The treatment of Jews by Germany and those representing the Third Reich did not depend on the German-Russian at all. The circumstance that Jews were living in Russia when the German forces invaded Russia was simply a coincidence which did not call for their annihilation. If merely being an inhabitant of Russia made that inhabitant a threat to Germany then the Einsatzgruppen would have had to kill every Russian, regardless of race.
If, however, it is argued by the Defense that the German forces considered as mortal enemies and subject to exeuction only those Russians who were members of the Communist party, then even according to this theory those Jews who were not members of the Communist Party should have been spared, as were those Russians who were not members of the Communist Party. The record shows, however, that when it came to a Jew, it did not matter whether he was a member of the Communist Party or not. He was killed simply because he was a Jew.
THE PRESIDENT:The presiding Judge continues with the reading of the judgment.
THE PRESIDENT:Mass killings for Ideological Reasons Dr. Reinhard Maurach, Professor Criminal Law and Eastern European Law was called by the defendant Ohlendorf to expound the international law underlying the position of the various defendants maintaining Ohlendorf's view.
Some sections o his treatise, submitted as Ohlendorf Document No. 38, supported the prosecution rather than the defense. On three occasions he condemned mass killings for ideological reasons:
"This is the place to say with special empahsis that the shooting of entire groups of a population is not justified by any 'collective suspicion', of any group, no matter how great.
"It has already been emphasized that that the issuing and execution of mass liquidation orders cannot find any justifi cation in international law, even within the scope of a total war of this kind, and in particular cannot allow of any appeal to the objective premises of self defense and emergency.
"General extermination measures cannot be justified by any war situations, no matter how exceptional."
However, in the end the expert arrived at an opposite conclusion. First he stated that a state of war as such does not vindicae extraordinary actions, but then in a superb demonstration of legal acrobatics he declared that if the war aims of one of the opponents are total, then the opponent is vindicated in claiming self defense and state of necessity, and therefore may introduce the mass killings he had previously condemned.
For the purpose of considering this argument we will ignore the fact that Germany waged an undeclared war against Russia, that Germany was the invader and Russia the invaded, and look only to the evidence adduced to support the theme that, after being invaded, Russia's actions were such as to call for the executions of which the Prosecution complains.
In behalf of the defendants many so-called Russian exhibits were introduced. Among them were documents on the Soviet Foreign Policy, statements emanating from the Kremlin, articles from the Russian Encyclopedia, and speeches made by Stalin. All these exhibits are strictly irrelevant and might well be regarded as a red herring drawn across the trail. But the Tribunal's policy throughout the trial has been to admit everything which might conceivably elucidate the reasoning of the defense. Thus, the excerpt from Stalin's speech of July 3, 1941, quoted in Ohlendorf's document book, will be cited here:
"In the areas occupied by the enemy, cavalry and infantry partisan detach ments must be formed and diversion groups created for fighting the units of the enemy army, for kindling partisan warfare everywhere and every place, for blowing up bridges and highways, for destroying telephone and telegraph connections, for burning down forests, supply camps and trains.
Unbearable conditions must be created for the enemy and all of his accomplices in the occupied areas, they must be pursued and destroyed at every step and all their measures must be frustrated.
One cannot regard the war against fascist Germany as an ordinary war.
It is not only a war between two armies.
It is at the same time the great war of the entire Soviet people against the fascist German Troops."
Scrutiny of this speech fails to reveal anything which orders the execution of German prisoners of war or the shooting of wounded persons, or the mass killing of Germans in German territory occupied by Russia, or anything which would justify the allegedly retaliatory killing of non-combatant Jews.