The Prosecution introduced in evidence the affidavit of one Robert Barth, supposedly a forner enlisted man in the kommando in which he stated that during the "temporary duty trips" of the

kommando leader which usually took two or three days, the unit was commanded by Ruehl. If it were established that Ruehl really served as commander of the unit even for brief periods during such times as the kommando was engaged in liquidating operations, guilt under Counts I and II would be conclusive. The Prosecution maintains that it has proved that very thing. But if this proposition is to be upheld it must rest on the one pedestal of Barth's affidavit. Ruehl could not come into the leadership automatically as the result of rank or seniority because they were such as to place him only in the fourth position. Thus the proof of leadership must rest on the Barth column which, probatively speaking, is a rather shaky one. While the rules of procedure permit the introduction of affidavits and indeed this innovation in trial routine has accomplished much good in the saving of time, an affidavit can never take the place of a flesh and blood witness in court when the affiant is available and the issue raised by the affidavit is a vital one. Had Barth appeared in court, not only would Defense Counsel have had the opportunity to cross-examine him, but the Tribunal itself could have appraised with more discernment than it can now his otherwise unsupported statement of Ruehl's supposed leadership. The pedestal of Barth's assertion with regard to upholding the hypothesis of Ruehl's leadership must withstand the successive hammer blows of, first, the unexplained absence of the affiant, secondly, Ruehl's low rank in the hierarchy of the unit and, thirdly, the fact that normally an administrative officer would not have executive functions. Under a multiple attack of that character the Tribunal cannot ascribe to this lone piece of evidence the strength needed to sustain so momentous a weight as the leadership of a kommando with its concomitant responsibility for executions.

And then there is also the direct testimony of Schubert, given from the witness stand, that Ruehl never functioned as a deputy commander of Sonderkommando 10b.

The Prosecution submits document NOKW-587 as evidence against Ruehl. Ruehl denies that the action reported therein took place

and then adds that he arrived after the date of the alleged executions. The communication in question, however, states:

"Kommando 10b reached Czernowitz on Sunday, 6 July 1941, at 18.15 hours after an advance division had established the first communications with Roumanian posts in town the day before and had provided quarters."(Emphasis supplied)

Since the defendant admits that he was responsible for the procurement of quarters it is not to be excluded that he led the "advance division" which established communications with the Roumanians and provided quarters. This, however, in itself would not make him a participant in the executive actions which followed nor would his contact with the Roumanians in itself establish that he was aware that executions were impending. A presumption cannot be built upon another presumption in an issue as serious as the one involved in this particular transaction.

The Prosecution has also introduced Report No.19, dated July 11, 1941 which plainly involves the kommando, but again there is no indication that Ruehl was in charge of the kommando or had any authority over it. Report No. 40, dated August 1, 1941, speaks of an operation in Chotin or Hotin. Ruehl denies all knowledge of the executions mentioned therein. That Ruehl may not have taken any part in these executions is admissible, but that he was ignorant of their happening is contrary to human observation. That he may not have done anything to prevent them is within the realm of believability but to assert that as a member of a unit made up of only seven officers and 85 men he could not know that killings were taking place is to enter into a fairyland which was quite the antithesis of the demons' land in which they were operating.

But there is no need to resort to the machinery of logic and deduction to produce the conclusion of cognizance. It is ready-made in Ruehl's own pre-trial sworn statement in which he tells of having received official notice of the killings by the kommando of 12 to l5 people declared to have participated in a surprise attack against Roumanian troops. He also tells of the sonderkommando which killed 30 Jews declared to have participated in the murder of two

German air pilots. At the trial he denied having actual knowledge of these events and stated that what he acquired in the way of information came to him only through hearsay.

Although it is evident that Ruehl had knowledge of some of the illegal operations of Sonderkommando 10b, it has not been established beyond a reasonable doubt that he was in a position to control, prevent or modify the severity of its program. The Prosecution also charges that Ruehl was criminally involved in the matter of the migration of a large group of Jews from the German controlled territory into Roumania. Although this episode was dwelt on at length during the trial, no evidence was adduced to show that Ruehl acted in any capacity other than courier between the Chief of the Einsatzgruppe and the escorting Roumanian officers of the so-called transport. There is no evidence that Ruehl in anyway maltreated these Jews, and certainly he did not participate in the execution of any of them.

Ruehl remained with the einsatz organization for no more than three months and during the entire period took part in no executive operation nor did his low rank place him automatically into a position where his lack of objection in any way contributed to the success of any executive operation.

The Tribunal concludes from the evidence that the defendant is not guilty under Count I of the Indictment and not guilty under Count II of the Indictment.

The Tribunal however finds that the defendant was a member of the Criminal organizations SS and Gestapo under the conditions defined by the Judgment of the International Military Tribunal and is, therefore, guilty under Count III of the Indictment.