"The Einsatzgruppen Case"
Military Tribunal II

Case No.9

The United States of America

--against--

Otto Ohlendorf, Heinz Jost, Erich Naumann, Otto Rasch
Erwin Schulz, Franz Six, Paul Blobel, Walter Blume,
Martin Sandberger, Willy Seibert, Eugen Steimle, Ernst
Biberstein, Werner Braune, Walter Haensch, Gustav
Mosske, Adolf Ott, Eduard Strauch, Emil Hausmann,
Waldemar Klingelhoefer, Lothar Fendler, Waldemar von
Radetzky, Felix Ruehl, Heinz Schubert, and Mathias Graf,
Defendants

Einsatzgruppen Index Page

Part II

[I have not inserted hyperlinks in the text of the case everywhere where this would have been possible. The two files that are most likely to be of immediate interst are the Glossary and Bioprofiles, the latter providing brief biographical details, both files being continually updated. There are links to those files at the bottom of this `page', to which you can navigate by holding down the Ctrl key and pressing the End key.]


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THE ORGANIZATION OF THE EINSATZGRUPPEN

During the last years the world has learned much about this "state within the state" which was formed by the SS. Much about

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this new aristocracy of "blood and elite" need not be repeated here. The Einsatzgruppen were part of the SS. They were created at the direction of Hitler and Himmler by Heydrich the Chief of the Security Police and SD, who was Himmler's right hand man, and operated under the direct control of the RSHA, the Reich Security Main Office, one of the most important of the twelve main offices of the SS.

The Einsatzgruppen were formed in the spring of 1941. The sequence of events was as follows:

In anticipation of the assault on Russia, Hitler issued an order directing that the Security Police and the Security Service be called in to assist the army in breaking every means of resistance behind the fighting front. Thereafter, the Quartermaster General of the Army, General Wagner, representing Keitel, the Chief of the Supreme Command of the Wehrmacht, met Heydrich, Chief of the Security Police and Security Service. These two men reached an agreement concerning the activation, commitment, command, and jurisdiction of units of the Security Police and SD within the framework of the army. The Einsatzgruppen were to function in the rear operational areas in administrative subordination to the field armies, in order to carry out these tasks as directed by Heydrich and Himmler.

The reason why decisions of the highest military and administrative level were necessary for the creation of such small units is shown by the character of their assignment. These "security measures" were defined according to the principles of the Security Police and the SD, the principles of Heydrich, the principles of unmitigated terror and murder. The actions of the Einsatzgruppen in the conquered territories will demonstrate the purpose for which they were organized.

In the beginning four such Einsatzgruppen were formed, each of which was attached to an army group. Einsatzgruppe A was attached to Army Group North, Einsatzgruppe B was attached to Army Group Center, Einsatzgruppe C was attached to Army Group South and Einsatzgruppe D was assigned to the 11th German Army which was to be nucleus for the formation of a fourth army group after it reached the Caucasus. The function of the Einsatzgruppen was here to insure the political security of the conquered territories both in the operational areas of the Wehrmacht and the rear areas which were not directly under civil administration. These two missions were made known at a mass meeting of the Einsatzgruppen personnel before the attack on Russia. At this meeting Heydrich, Chief of the SIP0 and SD, and Streckenbach, chief of the personnel office of the Reich Security Main Office (RSHA) flatly stated that the task of the

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Einsatzgruppen would be accomplished by exterminating the opposition to National Socialism.

Nor were the commanders of the armed forces ignorant of the task of the Einsatzgruppen. Hitler himself instructed them that it was the mission of these special task forces to exterminate all Jews and political commissars in their assigned territories. The Einsatzgruppen were dependent upon the army commander for their billets, food, and transport; relations between armed forces and the Security Police and SD were close and almost cordial, and the commanders of the Einsatzgruppen reported again and again that the understanding of the army commanders for the task of the Einsatzgruppen made their operations considerably easier.

The normal strength of the Einsatzgruppen was from 500 to 800 men. The officer strength of the Einsatzgruppen was drawn from the SD, SS, Criminal Police (Kripo) and Gestapo. The enlisted forces were composed of the Waffen SS, the regular police, the Gestapo, and locally-recruited police. When occasion demanded, the Wehrmacht commanders would bolster the strength of the Einsatzgruppen with contingents of their own. The Einsatzgruppen were divided into Einsatzkommandos and Sonderkommandos. These subunits differed only in name. When a mission called for a very small task force, the Einsatz or Sonderkommandos was capable of further subdivision, called Teilkommando or splinter group.

The activity of the Einsatzgruppen was not limited to the civilian population alone, but reached into prisoner-of-war camps in total disregard of the rules of warfare. Soldiers were screened by Einsatzkommandos personnel in order to find and kill Jews and political commissars.

Shortly before the campaign against Russia, Hitler gave an explanation of the ideological background of this fight to the commanders in chief and the highest officers of the three branches of the armed forces. This war, he said, would not be an ordinary war, but a clash of conflicting ideologies. Special measures would have to be taken against political functionaries and commissars of the Soviet Army. Political activities and commissars were not to be treated as prisoners of war, but were to be segregated and turned over to special detachments of the SD which were to accompany the German troops. The carrying-out of this Hitler directive was described by the International Military Tribunal in its judgment that-

"... There existed in the prisoner-of-war camps on the eastern front small screening teams (Einsatzkommandos), headed by lower ranking members of the Secret Police (Ge

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stapo). These teams were assigned to the camp commanders and had the job of segregating the prisoners of war who were candidates for execution according to the orders that had been given, and to report them to the office of the Secret Police."*

When a general expressed concern that the morale of the average German soldier might suffer from the sight of these executions, the Chief of the Office IV of the RSHA assured him cynically that, in the future, this "special treatment"-the euphemistic expression for killing-would take place outside the camps so that the troops would not see them.

Detailed instructions were put into force that no political functionary, commissar, higher-ranking civil servant, leading personality of the economical field, member of the intelligentsia, or Jew, might escape extermination. These purposes were realized in actions we shall now describe.

ACTIVITIES OF THE EINSATZGRUPPEN

MR. WALTON : In May and June 1941, the assembling of Einsatz-gruppen personnel began, in conformity with the agreements be-tween the Army High Command and the Reich Security Main Office. At first the Border Police School Barracks at Pretzsch in Saxony was designated as an assembly point, but because of the inadequacy of facilities, the neighboring villages of Dueben and Schmiedeberg were also designated as assembly points.

Since the majority of the personnel for the Einsatzgruppen came from military or police organizations, they already understood normal military duties. The course of training given them at the assembly points consisted of lectures and speeches on their new and special functions. After this orientation the Gruppen received their equipment, and were to be committed to action. Events were not long delayed which brought these organizations to their assigned tasks, and their missions were thoroughly understood from the highest-ranking leader of a Gruppe down to the lowest SS man.

On 22 June 1941, with no previous warning, Germany invaded Soviet Russia. The Einsatzgruppen, already alerted, fell in behind the marching columns of the Wehrmacht as an integral part of the machine constructed for swift and total war. Within a space of three days the training grounds in Saxony were empty and all Einsatzgruppen had entered upon the performance of their various missions.

The Tribunal will recall how rapidly the Wehrmacht overran

* Trial of the Major War Crimlnals. vol. I. P. 230. Nurmberg; 1947.

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vast territory in the early months of this aggression. By December 1941, the eastern front extended from Leningrad on the north to the Crimean Peninsula in the south. The Baltic States, White Ruthenia, and most of the Ukraine were in German hands. In this wide land the Einsatzgruppen moved behind the lines of combat. They were deployed from north to south in alphabetical order across the east of Europe.

The precise areas in which they did their work will become apparent as the proof is adduced. And it will be seen that they followed like methods in executing their common mission.

Identity of purpose and of top command were reflected in a common pattern of performance. Some victims were disposed of casually. Political functionaries were shot where found. Prisoners of war who fell in the category of opponents of National Socialism were handed by the Wehrmacht to the Einsatzgruppen and killed.

These swift methods were also applied in disposing of Jews, gypsies, and persons falling under that vague denomination "undesirables." But these latter classes of humans marked for slaughter were large-too large to be disposed of by casual assassination. Their very numbers demanded that they be killed en masse. Accordingly, we find plans and methods adapted to this necessity.

We must remember that the Einsatzgruppen were small forces of 500 to 800 men. Four of these small forces totaling not more than 3,000 men killed at least l, 000,000 human beings in approximately two years' time. These figures enable us to make estimates which help considerably in understanding this case. They show that the four Einsatzgruppen averaged some 1,350 murders per day during a 2-year period; 1,350 human beings slaughtered on the average day, 7 days a week for more than 100 weeks. That is 337 murders per average day by each group of 500 to 800 men during the 2-year period. All these thousands of men, women, and children killed had first to be selected, brought together, held in restraint, and transported to a place of death. They had to be counted, stripped of possessions, shot, and buried. And burial did not end the job, for all of the pitiful possessions taken from the dead had to be salvaged, crated, and shipped to the Reich. Finally, books were kept to cover these transactions. Details of all these things had to be recorded and reported.

Upon entry into a given area and after establishing itself for an extermination operation, an Einsatz unit rounded up those elements of the population marked for slaughter. This was accomplished by special orders to report and by manhunts. It was followed by concentration of the victims under guard to be trans-

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ported to a place for execution or at the abbatoir itself. In accomplishing roundups, a common deceit was widely practiced ; those who were to die were told to report for "resettlement''-hope was held out to those who had none in fact, and who awaited certain death. The methods of extermination varied little. Mass shooting, the commonest means of slaughter, was described with classic simplicity by Herman Graebe, a German civilian, before the International Military Tribunal. Graebe was in charge of a building firm in the Ukraine. May I read from his statement-

"I walked around the mound, and found myself confronted by a tremendous grave. People were closely wedged together and lying on top of each other so that their heads were visible. Nearly all had blood running over their shoulders from their heads. Some of the people shot were still moving. Some were lifting their arms and turning their heads to show that they were still alive. The pit was already 2/3 full. I estimated. that it contained about 1,000 people. I looked for the man who did the shooting. He was an SS man, who sat at the edge of the narrow end of the pit, his feet dangling into the pit. He had a tommy gun on his knees and was smoking a cigarette. The people, completely naked, went down some steps which were cut in the clay wall of the pit and clambered over the heads of the people lying there, to the place to which the SS man directed them. They lay down in front of the dead or injured people; some caressed those who were still alive and spoke to them in a low voice. Then I heard a series of shots. I looked into the pit and saw that the bodies were twitching or the heads lying already motionless on top of the bodies that lay before them. Blood was running from their necks. I was surprised that I was not ordered away, but I saw that there were two or three postmen in uniform nearby. The next batch was approaching already. They went down into the pit, lined themselves up against the previous victims and were shot. When I walked back around the mound, I noticed another truckload of people which had just arrived. This time it included sick and infirm persons. An old, very thin woman with terribly thin legs was undressed by others who were already naked, while two people held her up. The woman appeared to be paralyzed. The naked people carried the woman around the mound. I left with Moennikes and drove in my car back to Dubno.
   "On the morning of the next day, when I again visited the site, I saw about 30 naked people lying near the pit-about 30 to 50 meters away from it. Some of them were still alive; they looked straight in front of them with a fixed stare and seemed to notice neither the chilliness of the morning nor the workers

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of my firm who stood around. A girl of about 20 spoke to me and asked me to give her clothes, and help her escape. At that moment we heard a fast car approach and I noticed that it was an SS detail. I moved away to my site. Ten minutes later we heard shots from the vicinity of the pit. The Jews still alive had been ordered to throw the corpses into the pit; then they had themselves to lie down in this to be shot in the neck." (2992-PS, Pros. Ex. 33.)

Another form of extermination employed was asphyxiation by lethal gasses in enclosed trucks or vans. Here again the victims were induced to enter these death machines by the promise that they would be transported to other areas for resettlement. As the van left the leading area it was filled with deadly fumes. A few minutes later, when the van reached the disposal point, the corpses were unloaded into prepared excavations which became unmarked mass graves. These, then, were the usual methods used by the Einsatzgruppen. May I now briefly detail some of their activities.

EINSATZGRUPPE A

Einsatzgruppe A made a comprehensive report in October 1941 describing what it had been doing. The report gave the total of 121,817 persons killed. The commanding officer stated-

" To our surprise it was not easy at first to set in motion an extensive pogrom against the Jews. Klimatis, the leader of the partisan unit mentioned above, who was used for this purpose primarily, succeeded in starting pogroms on the basis of advice given to him by a small Vorkommando operating in Kovno and in such a way that no German order or German instigation was noticed from the outside. During the first pogrom in the night from 25 to 26 June, the Lithuanian partisans did away with more than 1,500 Jews, set fire to several synagogues or destroyed them by other means, and burned down a Jewish dwelling district consisting of about 60 houses. During the following nights, approximately 2,300 Jews were rendered harmless in a similar way." (L-180, Pros. Ex. 34.)

Sonderkommando 1a, which was under the command of the defendant Sandberger, arrested all male Jews over 16 in its area and with the exception of doctors and the Counsel of Elders, they were all executed. The defendant Strauch commanded Einsatzkommando 2. Six months after they began operations, they reported a total of 33,970 executions. The Commissioner General of White Ruthenia had the following to say:

"During detailed consultations with the SS Brigadier Gen-eral [SS Brigadefuehrer] Zenner and the extremely capable Chief of the SD, SS Lieutenant Colonel [SS Obersturmbannfuehrer] Dr. jur. Strauch, we found that we had liquidated approximately 55,000 Jews in White Ruthenia during the last

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10 weeks. In the Minsk-land area the Jewry was completely exterminated, without endangering the allocation of labor in any way."

The defendant Jost was in command of Einsatzgruppe A on 27 March 1942 when they reported that 15,000 Jews were shot in Cherven. The report pointed out that these acts created a feeling of insecurity and even anxiety in the population of White Ruthenia and that it was impossible to estimate the consequences of such measures. At another time while this Einsatzgruppe was under Jost's command, it reported that it had executed 1,272 persons, including those too aged and infirm to work, and political leaders. The report adds that 14 of this number of more than 1,000 persons slaughtered were either guilty of misdeeds or were criminals. The proof will show, we believe, that this proportion of only 2 percent of the victims shot for crime is not unusual.

EINSATZGRUPPE B

The defendant Naumann commanded Einsatzgruppe B. In Minsk this Einsatzgruppe had rounded up all male inhabitants and put them in a civilian prison camp. By careful screening, with the help of the Secret Field Police, it was able to liquidate over 1,000 Jews. In Lithuania, a local Kommando of this Gruppe reported that 500 Jews were being liquidated daily. The report also stated that nearly half a million roubles in cash "which belonged to Jews who were subject to special treatment were appropriated as belonging to the enemies of the Reich and confiscated." By the middle of November 1941, Einsatzgruppe B could report a total of 45,467 [sic] executions. These executions were broken down as follows:

Staff and Vorkommando Moscow.. . . . . . . . . . .2,457
Sonderkommando 7a........................................ 1,517
Sonderkommando 7b........................................ 1,822
Einsatzkommando 8. . . . . . . . . . . . . . . . . . . ... 28,290
Einsatzkommando 9......................................... 11,452


In reporting further executions in the civilian prisoners camps in Minsk, Einsatzgruppe B stated that another 733 civilian prisoners were liquidated. The comment made concerning these executions is-

" All the persons executed were absolutely inferior elements with a predominant mixture of Asiatic blood. No responsibility could be assumed if they were left in the occupied zone."

The defendant Blume was chief of Sonderkommando 7a in Einsatzgruppe B. In one of his affidavits he says-

"I carried out one execution in the course of my duty. I

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remember one occasion on which between 70 and 80 people were executed in Vitebsk and on another occasion on which a similar number were executed in Minsk... on both occasions a kind of trench was dug, the persons destined to die were placed in front of it and shot with carbines. About 10 people were shot simultaneously by an execution force of 30 to 40 men. There was no doctor present at the execution, but the leader of the execution force who was responsible made sure that the people were dead. Coups de grace were not necessary." (NO-4145, Pros. Ex. 10.)

Eugen Steimle, the defendant, commanded Sonderkommando 7a. In one of his affidavits he tells us that he had been reprimanded for not shooting women and children in his mass executions. His reports will indicate that the reprimand was not without effect.

The defendant Adolf Ott commanded another unit in Einsatzgruppe B and he tells us-

"During the time I was Kommando Leader of the Kommanclo 7 b, about 80 to 100 executions were carried out by this Kommando. I remember one execution which took place in the vicinity of Bryansk. The people to be executed were handed over to my unit by the local commandant. The corpses were temporarily buried in the snow and later buried by the Army. The valuables which were collected from these people were sent to Einsatzgruppe B." (NO-2993, Pros. Es. 67.)

Other units of Einsatzgruppe B headed by the defendants Klingelhoefer and Six aid not vary from this standard pattern.

EINSATZGRUPPE C

Einsatzgruppe C did not fail to report the success of its work. Under the significant heading, "Executive Activities", this group reported in the first days of November-

"As to purely executive matters, approximately 80,000 per-sons were liquidated until now by the Kommanclos of the Einsatzgruppe ...
   "Several retaliatory measures were carried out as large-scale actions. The largest of these actions took place immedately after the occupation of Kiev; it was carried out exclusively against Jews with their entire families.
   "The difficulties resulting from such a large-scale action-in particular concerning the seizure-were overcome in Kiev by requesting the Jewish population through wall-posters to move. Although only a participation of approximately 5-6,000 Jews had been expected at first, more than 30,000 Jews arrived who, until the very moment of their execution, still believed

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in their resettlement, thanks to an extremely clever organization.
   "Even though approximately 75,000 Jews have been liquidated in this manner, it is already at this time evident that this cannot be a possible solution of the Jewish problem. Although we succeeded, in particular in smaller towns and also in villages, in accomplishing a complete liquidation of the Jewish problem, again and again, it is however observed in larger cities that after such an execution all Jews have indeed disappeared. But when after a certain period of time a Kommando returns again, the number of Jews still found in the city always considerably surpasses the number of the executed Jews."

The killing of 33,000 Jewish inhabitants of Kiev in only 2 days stands out even among the ghastly records of the Einsatzgruppen. It was the defendant Blobel, who with his unit under the command of the defendant Rasch, accomplished this massacre which nearly defies human imagination. Einsatzgruppe C received high praise for its activities from the Commanding General of the Gth Army, Field Marshal von Reichenau. This ruthless, mass killing shamed some of the German witnesses, and the Einsatz-gruppe had to report that "Unfortunately it often occurred that the Einsatzkommandos had to suffer more or less hidden re-proaches for their consequent stand on the Jewish problem."

But the Jews were by no means the only part of the population which was marked for extermination. They were only the most helpless victims. Therefore, Einsatzgruppe C stressed the point of the political sources of danger by reporting-

"Even if an immediate hundred percent exclusion of Jewry were possible, this would not remove the political source of danger. The Bolshevistic work depends on Jews, Russians, Georgians, Armenians, Poles, Latvians, Ukrainians ; the Bolshevistic machine is by no means identical with the Jewish population. In this situation, the goal of a political police security would be missed, if the main task of the destruction of the communistic machine were put back into second or third place in favor of the practically easier task of the exclusion of the Jews."

Einsatzkommando 5 was commanded by the defendant Schulz. Only half a year after this Einsatzkommando had begun its activities, it was able to report a total of 15,000 executions. It was reported that the liquidation of insane Jews represented a particularly heavy mental burden for the members of Schulz' Einsatzkommando, who were in charge of this operation. Nor were the non-Jewish inmates of insane asylums spared. Einsatz-

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kommando 6 killed 800 of them in one asylum alone. The commander of this unit, at a later time, was the defendant Biberstein. Before he became leader of Einsatzkommando 6, he was a Protestant minister, and under his aegis two to three thousand helpless people were murdered, and he himself supervised executions which were carried out by his unit by means of a gas van.

EINSATZGRUPPE D

The headquarters staff of Einsatzgruppe D is in the dock. The commander was the defendant Ohlendorf and his deputy was the defendant Schubert. A subunit of Ohlendorf's command, Einsatzkommando 12, was commanded by the defendant Nosske. A third unit of Einsatzgruppe D, Sonderkommando l0b, was led by one Persterer who is now deceased. Persterer's deputy was the defendant Ruehl.

During the first nine months of Ohlendorf's year in command of Einsatzgruppe D, this force destroyed more than 90,000 human beings. These thousands, killed at an average rate of 340 per day, were variously denominated Jews, gypsies, Asiatics, and "undesirables". Between 16 November and 15 December 1941, this Einsatzgruppe killed an average of 700 human beings per day for the whole 30-day period. The intensity of the labors of Einsatzgruppe D is suggested by an April 1942 report upon its work in the Crimea, which states-

"The Crimea is freed of Jews. Only occasionally some small groups are turning up, especially in the northern areas. In cases where single Jews could camouflage themselves by means of forged papers, etc., they will, nevertheless, be recognized sooner or later, as experience has taught."

In ordering these massacres Ohlendorf and his men were not without scruples:

"It was," he said," my wish that these executions be carried out in a manner and fashion which was military and suitably humane under the circumstances. For this reason I personally inspected a number of executions, for example, executions which were carried out by Kommando 11b under the direction of Dr.Werner Braune, executions by Kommando11a under Sturmbannfuehrer Zapp in Nikolaev, and a smaller execution by Kommando l0b under the leadership of Alois Persterer in Ananev. For technical reasons (for example, because of road conditions) it was not possible to inspect all mass executions. Insofar as I was prevented from inspections for personal reasons, I ordered members of my staff to represent me at these. I remember that Schubert inspected an execution which was

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-carried out by Kommando 11b under Braune's direction in December 1941 in Simferopol. The only people whom I generally assigned to inspections were, except for Schubert, Willy Seibert and Hans Gabel."

The execution at Simferopol which Ohlendorf mentions was reported to Berlin as," very difficult" because "reports about actions against Jews gradually filtered through from fleeing Jews, Russians, and also from unguarded talks of German soldiers." But these difficulties apparently increased the determination of Einsatzgruppe D. On 18 February it reported to Berlin-

"By the end of February the combing-through of the occupied Crimea will have been finished. Certain important areas in towns in particular are being regularly rechecked. The search for isolated Jews who have up to now avoided being shot by hiding themselves or by giving false personnel data was continued. From 9 January to 15 February more than 300 Jews were apprehended in Simferopol and executed. By this the number of persons executed in Simferopol increased to almost 10,000 Jews, about 300 more than the number of Jews registered. In the other Kommando areas as well, 100-200 Jews were still disposed of in each instance."

The International Military Tribunal reached the conclusion from the evidence then before it that *-

"Einsatzgruppen of the Security PoIice and SD operating behind the lines of the eastern front engaged in the wholesale massacre of Jews ...   Commissars, Jews, members of the intelligentsia, 'fanatical Communists' and even those who were considered incurably sick were classified as 'intolerable', and exterminated .... These units were also involved in the widespread murder and ill-treatment of the civilian population of occupied territories. Under the guise of combatting partisan units, units of the SS exterminated Jews and people deemed politically undesirable by the SS, and their reports record the execution of enormous numbers of persons."

The brief details I have recounted indicate the character of the proof to come. It is for such crimes as these that we invoke the jurisdiction of this Court.

[Section on Jurisdiction of the Court Omitted]

*Trial of the Major War Criminals. Vol I, PP. 266. 267. 270. Nuremberg. 1947.


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THE NATURE OF THE CHARGES COUNT ONE

The charges we have brought accuse the defendants of having committed crimes against humanity. The same acts we have declared under count one as crimes against humanity are alleged under count two as war crimes. The same acts are, therefore, charged as separate and distinct offenses. In this there is no novelty. An assault punishable in itself may be part of the graver offense of robbery, and it is proper pleading to charge both of the crime. So here the killing of defenseless civilians during a war may be a war crime, but the same killings are part of another crime, a graver one if you will, genocide-or a crime against humanity. This is the distinction we make in our pleading. It is real and most significant. To avoid at the outset any possible mis-conception, let us point out the differences between the two offenses.

War crimes are acts and omissions in violation of the laws and customs of war. By their very nature they can affect only nationals of a belligerent and cannot be committed in time of peace. The crime against humanity is not so delimited. It is fundamentally different from the mere war crime in that it embraces systematic violations of fundamental human rights committed at any time against the nationals of any nation. They may occur during peace or in war. The animus or criminal intent is directed against the rights of all men, not merely the right of persons within a war zone. At a recent conference for the unification of penal law, the definition of crimes against humanity was a leading topic. There it was the Counselor of the Vatican who said-

"The essential and inalienable rights of man cannot vary in time and space. They cannot be interpreted and limited by the social conscience of a people or a particular epoch for they are essentially immutable and eternal. Any injury ... done with the intention of extermination, mutilation, or enslavement, against the life, freedom of opinion ... the moral or physical integrity of the family ... or the dignity of the human being, by reason of his opinion, his race, caste, family, or profession, is a crime against humanity." *

One series of events, if they happen to occur during the time of hostilities, may violate basic rights of man and simultaneously transgress the rules of warfare. That is the intrinsic nature of

*Report of the VIII Conference for the Unification of Penal Law, 11 July 1947

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the offenses here charged. To call them war crimes only is to ignore their inspiration and their true character.

Control Council Law No. 10 clearly lists war crimes as offenses constituting violations of the laws or customs of war, and crimes against humanity as a distinct offense unrelated to war.* The London Charter restricted the jurisdiction of the International Military Tribunal to crimes against humanity connected with crimes against peace or war crimes.** This restriction does not appear in the Control Council enactment, which recognizes that crimes against humanity are, in international law, completely independent of either crimes against peace or war crimes. To deny this independence would make the change devoid of meaning. ***

In this case the crimes occurred while Germany was at war. This is a coincidence of time. The plans for persecution and annihilation were rooted deep in Nazi ideology and would have been effected even had their aggressions failed to erupt in open conflict. This was shown by their actions in Germany itself, in Austria, and in Czechoslovakia.

Count one of our indictment enumerates the crimes against humanity which we have charged. It accuses these defendants of atrocities and offenses, including persecutions on political, racial and religious grounds, murder, extermination, imprisonment, and other inhumane acts. Each of these is recognized as a crime by Law No.10. That murder and extermination violated the criminal laws of all civilized nations even the defendants will not be heard to deny.

Can it be said that international conventions and the law of nations gave no warning to these accused that their attacks against ethnic, national, religious, and political groups infringed the rights of mankind? We do not refer to localized outbursts of hatred nor petty discriminations which unfortunately occur in the most civilized of states. When persecutions reach the scale of nationwide campaigns designed to make life intolerable for, or to exterminate large groups of people, law dare not remain silent. We must condemn the motive if we would affect the crime. To condemn an evil and ignore its cause is to invite its repetition. The Control Council simply reasserted existing law when naming persecutions as an international offense.

In dealings between nations these principles were well-known,

*Article II, 1(b) and (c). See p. XIX
**Charter of the IMT, Article 6(c). See p.XIV
*** Opening Statement by the prosecution in Case No.5 U.S. vs. Friedrich FLick, et al., contains a detailed exposition of the distinctiion between war crimes and crimes against humanity. See Vol.VI

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and Germany itself had been their champion. In the Berlin Treaty of 1878, Germany declared that religious differences could not be used to exclude a person from his civil or political rights. Following the First World War, in the German-Polish Convention of 1922, Germany obtained the legal protection for her ethnic minorities throughout Poland. The German Government bound itself under German Law to guarantee the complete protection of the life and liberties of all inhabitants, without discrimination as to their birth, nationality, language, race or religion.*  Germany agreed that these were obligations of international concern** and were basic laws which could not be superseded by any official, order, or any other law.*** In the Permanent Court of International Justice, Germany obtained recognition of the guarantees by international law of her minority rights in Poland.**** Indeed, it was under the guise of protecting the rights of minorities that the Nazis invaded Czechoslovakia. So mindful of their own rights ; so callous of the rights of others.

The history of nations in asserting human rights gave ample warning to the world. It should come as no surprise to these defendants that they may now be judged under international law for acts which were always known as crimes.

COUNT TWO

Count two of our indictment accused these defendants of violations of the laws and customs of war. The acts particularized in count one, in addition to constituting crimes against humanity also violated rules for the conduct of hostilities and are, therefore, charged as a distinct offense.

The Einsatzgruppen operated in occupied countries. The standards of conduct for an occupying power were established by the rules of war. They were obligated by international agreements to protect family honor and rights, to respect the person and property of noncombatants as well as their freedom of religion. Prisoners of war were to be treated as prescribed by humane codes adopted by all civilized nations. The evidence will disclose how the defendants in this case defied these laws, how unarmed civilians were methodically liquidated, how prisoners of war were casually selected for extermination, and it will also show whole-.

*Reichgesetzblatt, Part II, 1922, No. 10, dated 15 May 1922
**Ibid., Article 72
***Ibid., Chapter I, i
****Opinion No.6 and No.7, Permanent Court of International Justice, Series A, No.6, pp.4-41, dated 25 August 1925; Series A, No.7, pp.4-107, dated 25 May 1926

Page 51

sale plunder and destruction devoid of all military necessity. All of these acts are war crimes as recognized in Law No.10.

COUNT THREE

The judgment of the International Military Tribunal declared that the SS, the Gestapo, and the SD were criminal organizations. In reaching their decisions, the Court made frequent reference to the deeds of the Einsatzgruppen. These activities contributed largely to the Tribunal's finding that membership in the organizations named constituted crime. We have charged that all of these defendants were members of one or more of these criminal groups on or after 1 September 1939. Proof of such continuing membership supports conviction under count three of our indictment. There will be little doubt that each one knew the criminal nature of the band he joined. If the law condemns any man for these participations none can bear greater guilt than the defendants in this case.

[Part of the section on "Theory of Individual Responsibility" has been omitted]

Document compiled by Dr S D Stein
Last update 26/03/02 11:50:52
Stuart.Stein@uwe.ac.uk
S D Stein

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