|CENTER FOR HUMAN RIGHTS & GENOCIDE STUDIES COLLECTIONS|
|NUREMBERG TRIAL TRANSCRIPTS | Nazi Occupation of Norway|
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treatment as was given to ordinary captured soldiers.
Finally, other records of Hoth’s Panzer Group 3 once again demolish the concocted excuse that the reports of shootings were fabrications and that the Order was in fact not carried out. In an activity report by the Intelligence Officer of Panzer Group 3, written in the fall of 1941, the following appears: 1
"The special treatment of political commissars by the Armed Forces resulted in its becoming known to the Russians and in the strengthening of their will to resist. To prevent its being known, the special treatment should have been performed only in camps located far back in the rear. More of the captured Red Army men and officers are aware of such a special treatment, of which they said they had learned from routine orders and from political commissars who had escaped."
One of the witnesses for the defendant Leeb tried to suggest that this very natural fear which overtool [sic] Russian commissars was due to "Russian propaganda". 2 But the document quoted above shows conclusively that the commissars became alarmed, not because of propaganda, but because they soon discovered what fate was in store for them if they were captured. All along the front, German officers and men were being captured and interrogated by the Russians, and Russian officers and men were being captured by the Germans; sometimes, as the document quoted above shows, commissars were captured by the Germans, and then escaped and rejoined the Red Army. What was it that frightened those commissars? Was it an ugly rumor that Hitler had issued an order for their execution, but that all the German officers and men were opposed to it on the basis of international law and were "quietly sabotaging" it? Is that why, as late as the spring of 1942, Russian Commissars "were fighting for their very lives" 3 Is that why the
1. NOKW 1904, Pros. Exh. 67, Bk III, p.84
2. Gersdorff, Tr. p. 2171
3. Gersdorff, Tr. p. 2162.
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commissars often committed suicide, or removed their insignia?1 Did all these things happen because commissars were not being killed? We suggest that common sense and the evidence in this case furnish the answer.
Your honors, here is an order issued by the High Command of the German Army which ordered and directed the commission of murder on a large scale. All the defendants knew this; every officer and man in the German Army who handled the order knew it too. The defendants passed it down to their subordinates, and as a result many murder were committed by troops under their command.
The mere passing down of this order was a criminal act; the defendant Raeder was convicted by the International Military Tribunal of having committed war crimes largely because he passed the commando order “down through the chain of command”.2 Military Tribunal V, in the Hostage case, convicted Rendulic of passing down the Commissar Order, although there was no proof in the record in the case that any commissars were shot by the troops of Rendulic's division.3
Tribunal V also convicted von Lyeser in connection with the Commissar Order.4 Leyser commanded a Division in the defendant Reihardt's Corps, and three reports by Leyser's Division showed that his troops had in fact shot commissars, pursuant to the Order. The evidence against the defendants here is infinitely more extensive and compelling than the evidence against Leyser and, needless to say, their responsibility as
1.Tr. pp. 2164, 79
2.Vol. I, Trial of the Major War Criminals, p. 317
3.United States v. List, et al., (Case No. 7), pp. 10509-10
4.Idem, pp. 10524-25.
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Army Group, Army, and Corps commanders was far greater than that of Divisional commanders such as Rendulic and von Leyser.
These commanders were under and affirmative dity [sic] to direct and control their subordinates in such a manner as to prevent violation of the laws of war by troops under their command. The obligation of a commander “to control the operations of the members of his command” was discussed at length and firmly recognized by the Supreme Court in the Yamshita case,1 and, as was held by Military Tribunal V in the Hostage Case:2
Those responsible for such crimes by ordering or authorizing their commission, or by a failure to take effective steps to prevent their execution or recurrence, must be held to account if international law is to be anything more than an ethical code, barren of any practical deterrent.
But the defendants are not accused here only of sins of omission, regardless of how grave an offense their failure to take preventive action, without more, maybe. These men participated affirmatively in the commission of these murders by putting the Order into the hands of their subordinates. These defendants, or members of their staff, took further steps to insure the execution of the Order, by passing down supplementary directive in connection therewith. Their guilt for those crimes has been established beyong [sic] any shadow of a doubt, and the crime for which they bear this guilt is the crime of murder.
MR. FULKERSON: Could I ask the Court if you would like to take a recess at this time? Mr. Higgins is going to continue on another subject.
THE PRESIDENT: Well, there's just about two minutes and, I think, we will not start this second subject but will be in recess until 1:30.
(Recess until 1330 hours, 10 August 1948)
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(The Tribunal reconvened at 1400 hours, 10 August 1948)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed:
MR. HIGGINS: If Your Honers please --
We turn now to the Commando Order. The events which preceded its issuance were various raids carried out between 19 August and 6 October 1942 by English Commando units on Dieppe, the island of Sark, and various installations in Norway.3
On 7 October a German radio broadcast announced that “all terror and sabotage troops of the British and their accomplices who do not act like soldiers but like bandits, have, in the future, to be treated as such by German troops, and they must be slaughtered ruthlessly in combat wherever they turn up”.4 The next day the defendant Warlimont directed the Legal Department of the OKW, headed by the defendant Lehmann, to draft a formal order. Lehmann's assistant, Dr. Huelle, complied with this request and telephoned the text of a draft back to Warlimont on the same day.5 Warlimont then sent it to the office of Foreign Counter-Intelligence underAdmiral Canaris and asked for his comments. Canaris immediately objected to the Legal Department draft, root and branch. It allowed the troops to determine for themselves whom they should shoot after capture. Canaris said that a definite criterion should be laid down; that the German troops should be restricted in the exercise of this order to commandos
1.In re Yamashita 66 Sip. Ct. 340 (1946)
2.United States v. List, et al., (Case No. 7), p. 10456.
3.516-PS, Pros. Exh. 144, Bk IV, p. 89.
4.1266-PS, Pros. Exh. 118, Bk IV, p. 8.
5.Ibid, p. 9.
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who were either in civilian clothing or in German uniform.1 Had this modification been adopted, the whole meaning and effect of the order would, of course, have been altered.
But Canaris suggested an even more radical change. The Legal Department draft provided that commandos who fell into German hands outside of combat should be interrogated immediately and then handed over to the SD. Canaris wanted such people to be placed in special confinement after capture, to be reported to the Foreign Counter-Intelligence Office, and to be tried by courts-martial.2 Canaris also pointed out that reprisals against prisoners of war were absolutely forbidden.3
Lehmann now says that he and Canaris were working hand-in-glove trying to mitigate the effect of this criminal order. It has become fashionable in this trial for the defendants to hide behing [sic] Canaris at every turn. The evidence shows that Lehmann’s way of working with him was to disagree with the principal objections which Canaris had raised to the Legal Department draft. Lehmann argued that Section 23c of the Hague Convention, which forbids the killing of an enemy who lays down his arms and surrenders, did not extend to commando troops because "such methods of warfare had not been thought of at the time this Article was formulated".4 Lehmann also argued that reprisals against prisoners of war were not absolutely prohibited but that they depended on reciprocity. It is also significant that Lehmann never once objected in the course of this extensive correspondence to anything except the criticism and reservations which Canaris had expressed. Almost every sentence in the draft which issued from Lehmann’s office on 8 October was subsequently incorporated into the final order.
With the various opinions before him, Warlimont elaborated upon the Legal Department draft and sent it to Jodl. Warlimont’s version was followed almost paragraph by paragraph in the order which Hitler signed on 18 October, although it was further edited by Jodl and Keitel and,
1. 1264-PS, Pros. Exh. 119, Bk IV, p. 13.
3. 1265-PS, Pros. Exh. 121, Bk IV, p. 19.
4. Ibid, p. 20.
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to a certain extent, by Hitler himself. There were six paragraphs in the final version. The first paragraphs in the final version. The first paragraph was worded by Hitler, but the argument used there that commando warfare wasoutside the Geneva Convention originated with Lehmann. The second one was written entirely by Warlimont and the third was a joint effort in which Hitler, Keitel and Jodl supplemented and extended what Warlimont proposed. The fourth, again, was solely Warlimont’s work.
Theillegality of the Commando Order is clear, and has been established by the decision of the IMT and by the opinion in United States v. Wilhelm List, et al. Lehmann himself said on the stand that he considered the order to have been an "inadmissible reprisal" to the extent that it applied to uniformed military personnel. "Graf Leicester hat nicht immer so gesprochen". His argument concerning the inapplicability of Section 23c of the Hague Convention was concocted for the specific purpose of furnishing an excuse for murdering captured soldiers who were in proper uniform.
After the order had been re-edited for the last time and signed by Hitler, Warlimont distributed it to the three branches of the Wehrmacht which in turn passed it on to the field commanders. As was to be expected, it was not long before teletype messages reporting the murders of captured commandos began to pass over Warlimont’s desk. He helped formulate the answers which had to be made to the protests subsequently filed by the British. Warlimont began to occupy himself with such matters less than a month after the order had been issued, and continued to busy himself with correspondence concerning the execution of the Commando Order until at least July 1944. After the Allied landing in France, Rundstedt, the Commander in Chief West, requested instructions as to how the Commander Order should be applied. Warlimont answered him by saying that it "remains basically in effect even after the enemy landing in the West." A few days later, a formal order to this effect was drafted by Warlimont’s Quartermaster Staff and initiated by him, after which it was signed by Keitel and passed on to the field commanders.
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The line taken by those defendants who were field commanders is that the order, even if it was passed on to them, had no application in the East. Hoth, for example, made the sardonic observation that he was fighting in the Steppes south of Stalingrad when he heard the German radio announcement of 7 October and that he did not anticipate seeing any British Commando troops there. Roques, whose sense of humor did not rise to this pitch, owlishly stated that for his part he did not consider the Commando Order to be applicable because it referred only to Europe and Africa, whereas he was in Asia at the time he received it.1
To a certain extent, we agree that the order did not have the same effect in Russia that it had in the West. The reason that it did not bring about a radical innovation in the treatment of captured prisoners of war in Russia is that too long before it was issued the German troops had been shooting captured paratroopers and members of sabotage units. These classes of troops are included regularly on the SD lists of liquidated persons.2 This was done by virtue of other orders which had been issued from the outset of the Russian campaign.3
But the evidence shows that it is certainly not correct to say that the order was only of academic interest to field commanders in the East. For example, an entry in the War Diary of Reinhardt’s Third Panzer Army for 18 November 1942 -- exactly one month after the Commando Order was issued -- reads:4
Various difficulties have arisen concerning the execution of the Fuerhrer order of 21 October relative to the shooting of terrorists and groups of bandits. The Panzer Army asks the Army Group to clarify, above all, whether this order merely concerns British terror groups or whether it also applies to other bands in the occupied area. In this connection, the Army takes the attitude that, until a new OKW decree is published, which is in prospect, all bandits are to be shot to death even if they wear uniforms.
The order issued by the Third Panzer Army the next day provided:5
1. Tr. p. 5350.
2. NOKW 2747, Pros. Exh. 752, Bk IX, p. 45.
3. NOKW 2626, Pros. Exh. 249, Bk VI-AB, p. 39.
4. NOKW 3482, Pros. Exh. 46, Rebuttal Bk II, p. 43.
5. NOKW 2746, Pros. Exh. 748, Bk IX-I, p. 29.
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Until new regulations of OKW arepublished, bandits who surrender voluntarily without being forced by circumstances, will be treated as prisoners of war. All other bandits, including the uniformed ones, will be shot.
Similarly, on 29 October, the Chief of Staff of Salmuth’s Second Army asked the Army Group to "clarify", in connection with the Commando Order, whether the German troops were required to massacre all deserters from partisan units who surrendered. These examples are sufficient to show the participation of the defendants in carrying out this order and, incidentally, to explode the contention that it had no relation to the war in Russia.
We have thus gone further in our proof than we needed to go. It wasnot necessary to show that the Commando Order was carried out in order to show the commission of a crime. The mere transmittal of such an order to subordinate units is sufficient, as was held in the cases of Raeder and Rendulic, mentioned above in connection with the Commissar Order. This was done by the defendants Kuechler, Reinhardt, Salmuth and Reinecke. They are all guiltier than was Doenitz, who was convicted by the IMT because he "permitted the order to remain in full force when he became Commander-in-Chief, and to that extent he is responsible".1 Warlimont and Lehmann, of course, as the draftsmen of the Commado Order, are criminally responsible for all the murders committed thereunder, whether in the East or in the West.
C. Other Crimes Against Prisoners of War
Paragraphs 50 to 57 of Count Two of the indictment charge all the defendants except Schniewind with other crimes against prisoners of war. An abundance of evidence has been introduced in support of these charges. It will be summarized with wrespect to each individual defendant in our briefs, and we will limit ourselves here to a very few brief observations.
The defendants have relied heavily on the circumstance that the Soviet Union was not a party to the Geneva Convention with respect to the treatment of prisoners of war, but it is well settled -- and was so
1. Vol. I, Trial of the Major War Criminals, p. 314.
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held by the IMT - that the general principles of international law with respect to the treatment of prisoners of war were applicable as between Germany and the Soviet Union. The German High Command was fully aware of this, and Admiral Canaris of the OKW set forth this viewpoint in a memorandum of 15 September 1941 protesting against proposed regulations for the treatment of Soviet prisoners.1 Under these well-established principles, war captivity is not a "punishment" and prisoners of war are not fit objects for revenge or reprisals. They must not be subjected to dangerous employment, nor required to work against the interests of their own country by being forced to engage in any type of labor directly related to war operations.
There are many documents in evidence showing that Russian prisoners of war were regularly employed to clear mines. The reason given in one of the orders which required this was that the use of prisoners of war for this purpose was "to spare German blood".2 Another ingenious practice which was engaged in was billeting prisoners of war in buildings which the Germans were to occupy if it was suspected that they might contain mines or booby-traps.3
Another regular occupation of these prisoners of war was to engage in the loading and unloading and transportation of munitions.4 From time to time, as could be expected, these prisoners of war were killed while so employed.5 But the object of the order which committed them to this work was carried out: German blood was spared.
The most widespread use of prisoners of war was made in the course of constructing fortifications. There is hardly a field commander in the dock whose troops did not use prisoners of war to construct trenches, anti-tank ditches and field positions of various kinds. Salmuth did it in France just as Hoth did it in Russia.
1. Vol. I, Trial of the Major War Criminals, p. 232.
2. NOKW 1527, Pros. Exh. 180, Bk V, p 20; NOKW 2251, Pros Exh 187, Bk V, p. 41
3. NOKW 2337, Pros Exh 188, Bk V, p 44; NOKW 3337, Pros Exh 3, Rebuttal Bk I, p 4.
4. NOKW 2966, Pros Exh 1346, Bk V, Sipp 5, p 5.
5. NOKW 1941, Pros Exh 208, Bk V, p 112.
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Without trying to make this catalogue more complete, we pass on to a related topic - the general murder and ill-treatment of prisoners of war. It is clear from the reports and orders in evidence here that the German Army followed a consistent policy of shooting all Soviet prisoners of war who had attempted to escape and had been recaptured. But it is well settled under the laws of war that it is not a criminal offense for a prisoner of war to attempt to escape and that, if he is recaptured, he is only to be subjected to such disciplinary measures as security and the prevention of further attempts may require. The execution of a prisoner of war merely because he has attempted to escape and been recaptured is strictly prohibited by the laws of war, and is murder.1 And the record in this case contains a multitude of reports which follow one another in an endless procession showing that Soviet prisoners of war who had escaped from confinement were shot as soon as they were retaken.
The treatment which Russian prisoners of war habitually received while in German custody is one of the most appalling parts of this appalling case. In connection with the Commissar Order, we have already mentioned that the inmates in the prisoner of war cages were screened for the purpose of removing those of them who fell within the meaning of that lethal ordinance. But the screening process went much further. All the prisoners of war were put into one of several classifications. Into the first of these three classifications fell ethnic Germans, Ukranians, and natives of the three Baltic countries. Into the second fell Asiatics, Jews and German-speaking Russians. The third category consisted of persons classified as "politically intolerable and suspicious elements, commissars and agitators".
Theoretically, the treatment was to vary according to the classification. The first group was earmarked for service as auxiliaries of the German Army and, sometimes, even as combat troops; the third group was considered as temporary boarders who were to survive only until firing
1. The general principles governing escaped prisoners of war are set out in Sections 50 to 54 of the Geneva Convention.
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squads could be organized. The Jews were taken care of by the extermination squads of the Einsatzgruppen, and the remainder was scheduled to be shipped to Germany to work in the armament industry or to operate anti-aircraft guns.
These were the eventual fates which the German authorities had in mind, but before any given prisoner of war could fulfill this destiny he had to contrive to stay alive long enough for the plans of his captors to be carried out. This was no mean feat. It will never be known how many millions of Russian prisoners of war died in the Dulags and Stalags within the jurisdiction of these defendants. The Oberquartiermeister of Kuechler's Eighteenth Army said in November 1941 that 100 men were dying daily within the Army area. A little later it was disclosed that all the inmates of one camp there were expected to die within six months at the outside. At about the same time the Oberquartiermeister of Hoth's Seventeenth Army reported that deaths among prisoners of war within his jurisdiction were approximately 1% a day. Rosenberg wrote Keitel in February 1942 that “the fate of the Soviet prisoners of war in Germany is a tragedy of the greatest extent. Of 3.6 millions of prisoners of war, only several hundred thousands are still fully able to work”.
What we have said about the illegal use of prisoners of war for labor and about the care and treatment furnished them while they were in German custody applies primarily to what took place in the operational area while these prisoners were still under the control of the field commanders. The story of what happened to those of them who survived long enough to be shipped to Germany is a history in itself. The food which they received after they had arrived in the Reich was still inadequate to sustain life, particularly when these sick and half-starved prisoners were allocated to work which demanded strenuous physical exertion. We have mentioned that thousands of Russian prisoners of war were drafted to man anti-aircraft batteries: the court will remember the testimony of the witness Erhardt Milch in this connection. Thousands of others were assigned to work in
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various armament plants in Germany. These included not only Russians, but French prisoners of war and Italian military internees as well. A description of the conditions under which some of these men were kept can be found in the judgment of Tribunal III in the Krupp case.1 The man most responsible for the plight of prisoners of war in Germany was the defendant Reinecke. In almost every war crimes case where the question of the starvation, ill-treatment and illegal use of prisoners of war has been an issue, Reinecke’s name has played a prominent part. The number of victims of the system which he established and administered is incalculable. As has already been shown, he knew fully and precisely from the very outset the extent to which he was disregarding international law. His guilt is enormous.
In general, there are three excuses offered by the defendants for having allowed this calamity to take place. The first is that the reports are either exaggerated or false. It is enough to say in reply to this that the gruesome uniformity which is to be found in every document relating to the physical condition of Russian prisoners of war, no matter what the source or authorship of the document, excludes the possibility of either falsehood or exaggeration.
The second defense is that the condition of these prisoners of war was partly self-inflicted. The argument goes this way: the Germans surfounded [sic] large groups of Russian soldiers during the early months of the campaign. If these Russians had been reasonable, they would have surrendered as quickly as they found that they were cut off. Instead, they obstinately perservered in resisting until their food, water and ammunition supplies were exhausted. Therefore, they were in a somewhat debilitated condition when they first came into German hands. It follows that the Germans are not to be blamed if they died by the millions later on.
Apart from the fact that this argument is inconsistent with the contention that the reports are either fictitious or inaccurate, it is ridiculous to say that because a man is hungry and ragged, when he becomes your
1. United States v. Alfred Krupp, et al., (Case No. 10) pp. 61-88.
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prisoner of war you have the right to allow him to die of malnutrition or to freeze to death. We know of no requirement in international law or anywhere else that soldiers, upon surrendering, must bring along their own housing and cooking facilities.
The third and last defense consists of a kind of shell game in which the pea represents responsibility for the care and treatment of prisoners of war. Leeb, the Army Group Commander, wants to say that this lay entirely with his Army Commanders and with the commander of the Rear Area of the Army Group. The Army commanders want to say that the responsibility fell on the commandant of prisoners of war, although Hoth testified candidly that his Oberquartiermeister dealt with prisoner of war affairs and that he, as commander of an Army, was responsible for taking care of the prisoners of war in his area, the documents show conclusively that, within the operational area, the Army Groups and Armies exercised complete control over prisoner of war affairs.
D Deportation and Enslavement
Paragraphs 64 to 68 of Count Three of the indictment charge the defendants with war crimes and crimes against humanity against the populations of occupied countries, including the deportation of the inhabitants to forced labor in the Reich, the forced labor of the inhabitants on field fortifications and for mine clearance, the plunder of private and public property, and wanton destruction and devastation. We shall leave most of these matters to presentation in our briefs, and will deal here only with the responsibility of the defendants for the deportation of millions of civilians to forced labor in Germany.
When Germany commenced to reach the bottom of her manpower barrel, the scheme was initiated to make wholesale transfers of workers from occupied territory to the Reich for use in the armaments and munitions industries. This overall plan was implemented in various ways. At first, drives were put on to encourage foreign workers to volunteer for labor
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service in Germany. The response to this was so feeble that machinery was set in motion to substitute force for persuasion. In the West, the "Sauckel Action" was instituted in the spring of 1942. The result of this was, as Tribunal III stated in the Krupp Case:1
Wholesale manhunts were conducted and able-bodied men were shipped to Germany as "convicts" without having been charged or convicted of any offense. Many were confined in penal camps for three months during which time they were required to work for industrial plants. If their conduct met with approval they were graduated to the status of so-called "free" labor. This was a misnomer as they were detained under compulsion.
1. United States v. Alfried Krupp, et al., (Case No. 10) Tr. p. 90.
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The record shows that the defendant Sperrle, who was Commander of all German Air Force Units in the West and also served as Commander-in-Chief West during Rundstedt’s absence, cooperated with the agencies of Sauckel’s Labor Mobilization program. Sauckel himself told Milch at a meeting of the Central Planning Board that Sperrle had been most obliging in this respect. On another occasion, Sperrle sent a basic order which directed that German agencies in Northern France and Belgium were not to recruit laborers on their own initiative, as this practice interfered with the Sauckel Action.
A different procedure was used for impressing and deporting civilian workers in the East. There the agency which was primarily charged with the task of obtaining the labor which Germany needed was the Economic Staff East, which operated as part of Goering’s Four Year Plan. The defendants attempt to disclaim all responsibility for what was done by this organization. But this disclaimer this contrary to the evidence of that actually happened. An Economic Inspector was with each Army Group staff. Attached to the staff of each army was an Economic Leader. Economic offices which belong to the organization were also to be found with the Army Group Rear Area, the Security Divisions and the Feldkommandanturen. In other words, every agency of the German Ground Forces from the Army Group Area to the front line troops was riddled with representatives of Economic Staff East.
As an example of the part which the Army played in the implementing and execution of the slave labor program, a brief narrative of the evidence relating to the defendant Reinhardt will be illuminating. On the witness stand, he testified that the first time he or the staff of his 3rd Panzer Army were involved in the drafting of workers to be shipped to Germany, was in July 1943. The downright untruth of this statement cannot be demonstrated better than by the contents of two
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documents, both issued in November 1942. The first is an order which was signed by Reinhardt himself in which he announced that:1
The Fuehrer had charged Gauleiter Sauckel with the direction of the entire labor allocation program reaching into the zone of operations. An intelligent cooperation of the military agencies with the departments of labor allocation administration must make it possible to mobilize the work-capacity of the entire able-bodied population. If success cannot achieved in any other way, coercive measures must now be applied to recruit the required labor for allocation in the Reich.
The report of a Secret Field Police group to the 3rd Panzer Army three weeks later stated the following:2
Jefim Charitonow....with his three juvenile children, made his way to the partisans, although the children objected; he was arrested on his way.
He was shot on October 22. The three children were sent to Germany to work.
An order issued by the headquarters of one of Reinhardt’s subordinate Corps on 2 June 1943 contains the following: 3
The drafted labor forces will attempt to dodge the labor allocation with every means at their disposal....All men and women are to be instructed that they will be shot at any attempt
1.NOKW 3539, Rebuttal Exh. 39, Rebutall Bk II, p.17.
2.NOKW 686, Pros. Exh. 719, Bk IX-G, p. 26.
3.NOKW 2100, Pros. Exh. 471, Bk VII-A, p. 152.
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To flee.....The labor camps with the divisions must be surrounded by barbed wire and remain under constant supervision.
In July 1943, Reinhardt drafted and published a proclamation to the inhabitants of the territory occupied by this troops, which provided:1
All persons of the age group 1925 have to serve their compulsory labor terms in the Reich Territory, with the exception of those who are employed as voluntary helpers, with indigenous units, or with the indigenous police service.
Whoever tries to evade his service obligation will be severely punished. The same also applies to persons harboring anyone liable to service or in any way attempts to help him (her) in his attempts to evade the service obligations or strengthen him in his intent to evade his duty. Moreover, in place of the person liable for service who has not appeared, his next of kin may be drafted for labor allocation in the Reich, regardless of the personal circumstances.
On July 23rd, the minutes of a meeting held at the headquarters of the 3rd Panzer Army noted that one reason for the difficulty in apprehending inhabitants for labor commitment was the large quota which had been imposed by the Army, to wit, "a thousand Eastern workers per week for the Reich". One cure which was proposed for attempted evasion of service in Germany was that members of the families who had escaped were to be apprehended "regardless of personal
1.NOKW 2340, Pros. Exh. 484, Bk VII-A, p. 191.
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situation" and substituted for the escapees.1
On 26 July the 3rd Panzer Army made a report to Army Group Center, concerning the recruitment of Eastern workers. The introductory sentence reads: “The population rejects labor allocation in the Reich". Once of the measures suggested to overcome this resistance was the following:2
Persons apprehended by force after attempts to evade this draft at first will be sent to penal camps which must be run along strict lines.
It was also mentioned that the age group 1926 had to be drafted as well as the members of the 1925 class.
This is an appropriate place to mention the testimony of one of Reinhardt’s witnesses, who said that Reinhardt demonstrated his objection to these orders. He was asked how he demonstrated it. The answer was: by assuring the population that only members of the 1925 age group were affected, and that the rest of the population need not be apprehensive about this program. Apparently the witness had reference to the proclamation which was mentioned a moment ago.3 The value of Reinhardt’s reassurance as a soothing syrup must have been somewhat diminished when he added, within less than a month, still another age group to the list. The documents show that the quota of a thousand workers a week, which had been assigned to the 3rd Panzer Army, was being met by the middle of August.4
Reinhardt’s Army Group Headquarters continued to issue orders providing for the shipment of workers to Germany. One such order, involving approximately 100,000 persons, is dated
1.NOKW 2473, Pros. Exh. 487, Bk VII-A, p. 222
2.NOKW 2454, Pros. Exh. 489, Bk VII-A, p. 226.
3.Tr. P. 3834.
4.NOKW 2570, Pros. Exh. 492, Bk VII-A, p. 235.
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November 1944.1 Reinhardt's principal defense on this issue almost takes us into the realm of metaphysics. He and his witnesses admit that a compulsory labor service program was instituted by the Army, but they say that no force was used. How such a program could be compulsory without the use of force is indeed difficult to understand. Perhaps, the misunderstanding lies in the meaning of the word force. We associate shootings, severe punishments and barbed wire enclosures with force. Apparently Reinhardt does not.
MR. HIGGINS: Dr. Hochwald will continue the reading.
THE PRESIDENT: Dr. Hochwald --
DR. HOCHWALD: May it please the Tribunal --
E. Murder and Ill-treatment of Civilian Populations: the Einsatzgruppen
Repression and ill-treatment of the civilian populations of the occupied countries was not limited to deportation and enslavement of their persons and plunder and destruction of their property. Grave as these crimes were, there were others which w ere even more savage. Thousands upon thousands of civilians were illegally spirited away and imprisoned or murdered, pursuant to the notorious "Nacht und Nebel" decree formulated by Warlimont and Lehmann. A stupid and brutal policy for the suppression of resistance by the indiscriminate slaughter of hostages characterized the Germany occupation almost everywhere. But the darkest blot on the record of the German Army and of these defendants is their participation in the slaughter of millions of Jews, gypsies, and political officials in the Eastern occupied territories. And we will conclude our discussion of the evidence today with a brief analysis of the responsibility of these defendants for the millions of murders committed by the Einsatzgruppen of the Security Police and SD – a program of murder which was described
1. NOKW 2931, Pros.Exh.1279, Bk VII-Supp. p. 26.
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by Military Tribunal II as "beyond the experience of normal man and the range of manmade phenomena".1 All the defendants have emphatically donied any knowledge of the extermination mission of these units and of criminal acts perpetrated by the SD. If they learned at alltthat communists, Jews and other so-called "undesirables" were being killed, then the rumors which c ame to their ears concerned only events which had happened somewhere far in the rear, in territories under civil administration. And they were never able to put their fingers on the sources of these rumors, or to evaluate their credibility. They never dreamed that the Einsatzgruppen of the SD were in a nyway concerned with such "excesses". In each and every case, it wasthe indigenous population which spontaneously killed communists and Jews.
But, at the same time that this strange phenomena was transpiring, all these defendants, witnesses and affiants who professed complete ignorance of the "illegal" activities of the SD units, displayed detailed and accurate knowledge of what they called the "legal" tasks of the Einsatzgruppen, such as security tasks, appraising the political situation, and participating in anti-partisan combat. That these security tasks embraced the extermination of those races and classes which might endanger or only inconvenience the future of Hitler's thousand-year Reich, escaped their attention somehow.
The laws and customs of war provide for military authority over the territory of the hostile state.2 Territories are considered occupied according to these laws when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.3 The
1. United States v. Ohlendorf, et al.,(Case No. 9),Tr.p.6648.
2. Section 3, Annex to Hague Convention of 18 Oct.1907,Art.42-56.
3. Ibid, Art.42.
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military authority is obligated to ensure public order and safety1 and to respect family honor and rights and the lives of persons.2 Tribunal V in the “Hostage” case has given full recognition to this principle:3
"The commanding general of occupied territory having executive authority as well as military command, will not be heard to say that a unit taking unlawful orders from someone other than himself, was responsible for the crime and that he is thereby absolved from responsibility. It is here claimed, for example, that certain SS units under the direct command of Heinrich Himmler committed certain of the atrocities herein charged without the knowledge, consent or approval of these defendants. But this cannot be a defense for the commanding general of occupied territory. The duty and responsibility for maintaining peace and order, and the prevention of crime rests upon the commanding general. He cannot ignore obvious facts and plead ignorance as a defense."
As holders of executive power and commanders in their areas, the defendants were the highest authorities. Thus they bear full responsibility for all criminal acts against civilians which were carried out by anyone for the time whenthey were in command of these areas. The testimony of the witness Ohlendorf is noteworthy. Ohlendorf was condemned to death
1. Section 3, Annex to Hague Convention of 18 Oct.1907,Art.43.
2. Ibid, Art.48.
3. United States v. Wilhelm List, et al.,(Case No. 7) Tr. pp. 10455-56.
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in this very building, but the Tribunal which found him guilty of massmurder paid high praise to his truthfulness.1 When asked if the liquidation of Jews, Communists and other "undesirables" was carried out with the authorization of the Army authorities, Ohlendorf stated:
"I believe that the very fact that the Wehrmacht itself issued requests and directives for these executions and gave their support for the carrying out of these executions are sufficient proof for their consent without having to add one other word. Such demands were repeatedly made with respect to mentally insane, but these could be rejected by me because the instructions issued to me made it possible for me to reject the requests of the Wehrmacht. However, with respect to the demands of liquidating Jews in Sinferopel at the beginning of September 1941, I had to comply with the instruction because I had no argument to counter it. In order to carry out this liquidation which transcended our possibilities, the Army afforded to us all necessities in factual and practical respects. For the rest, the Army knew about liquidation of Jews earlier than I did myself, since at the beginning of the Russian commitment I, myself, had been eliminated from work with the Army for at least four weeks and the Army commanded the Einsatzkommandos directly while I was left in Romania. According to Army instructions, these Einsatzkommandos reported directly to the Army about the liquidation of Jews such as took place, for instance, in Czernowitz. I myself didn’t even get a copy of these reports."
In view of the authority exercised and responsibilities borne by these defendants, it is not, strictly speaking, necessary to establish that they had actual knowledge of the Einsatzgruppen. As Tribunal V held in the "Hostage" case2, "An Army commander will not…..ordinarily be permitted to deny knowledge of happenings within the area of his command while he is present therein". But the contention that the activities of these gangs of murderers who were fed and housed by the Army and would have been helpless without the Army support, were unknown to the Army commanders, and that these killings of millions took place without their
1. United States v. Otto Ohlendorf et al., (Case No. 9) Tr. P. 6787.
2. United States v. List, et al., (Case No. 7), Tr. P. 10461.
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knowledge, is a palpable and grotesque fabrication. As the defendant Leeb himself testified:1 "Every military commander at the front is highly interested that in his battle area, and in the rear of his battle area, peace and quiet and law and order prevails among the civilian population". The defense witness Halder was "firmly convinced" that the slaughter of Jews "certainly provoked indignation among parts of the Russian civilian population", and agreed that "it would not be unreasonable for a Commander-in-Chief to take the position that the activities of the Einsatzgruppen in executing substantial parts of the population was a threat to his security and to his operations".2 The defendant von Roques testified that it was his duty as Commander of the Army Group Rear Area to safeguard the lines of communication and supply, and to insure military security in his area.3 That is why security divisions were stationed in the rear area to patrol the roads and railways, and why the Feldkommandanturas and Ortskommandanturas were established in the towns and villages. As the record abundantly shows, the area behind the front line was not a desert where one could wander to and fro unchallenged, but rather a veritable maze of rear headquarters, command posts, prisoner of war stockades, airfields, ammunition and gasoline dumps and supply depots, hospitals, motor pools, and security and communication units that made it possible for the front line troops to engage in combat. That is why the army carried on counter-intelligence activities in the occupied area, and why intelligence reports were regularly submitted to the headquarters of these defendants telling them what was
1. Tr. P. 2364.
2. Halder, Tr. P. 2107.
3. Tr. Pp. 1542-44.
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going on behind the lines. The Secret Field Police, the security divisions, and many other units were in constant and close touch with the civilian population. Men, women, and children can not be wrenched from their homes and snatched off the streets by the hundreds of thousands and led away to slaughter and burial in a common grave, without the knowledge of their relatives, friends and neighbors, or without lamentation, outcries, and bitter protests. The bare suggestion that the Einsatzgruppen flitted through Russia, murdering Jews and other "undesirables" by the millions, but secretly and unbeknownst to the Army, is utterly preposterous - the desperate sparring of men who have no recourse but to say what is not true.
This evidence is compelling as to all the defendants and it is almost a work of supererogation to press the question further. But the defendants did not have to depend for their information on what they could do plainly see and hear going on about them. Let us briefly examine some of the documentary evidence with respect to three of the defendants - Leeb, Roques and Woehler.
1. Von Leeb
The order concerning the employment of the Einsatzgruppen in the operational area was distributed to Leeb’s headquarters on 28 April 1941. On 8 June came the Commissar Order directing the execution of civilian commissars and commissars attached to the troops.1 This order expressly stated that commissars arrested in the Rear Area of the Army Group "on account of doubtful behavior" were to be handed over to the Einsatzgruppen or Einsatzkommandos of the Security Police and SD. On 24 July the first of two criminal orders
1. NOKW-17-6, Pros. Exh. 57, Bk III, p. 27.
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on segregation of prisoners of war and civilians in camps and the execution of "politically untenable and suspicious elements: commissars and agitators" found among them was issued to Leeb’s headquarters.1 It also provided that "suspicious civilians" in the Army Group Rear Area would be turned over to the Einsatzgrouppen and Einsatzkommandos of the Security Police and SD. The order of 7 October 1941, received by Leeb’s headquarters, altered the segregation procedure by providing that it was henceforth to be done in the Rear Area of the Army Group by Sonderkommandos of the Security Police and SD rather than by army units. I quote from it:2
"In agreement with the commanding officers of the Rear Army Group Area (district commanders for prisoners of war), the operations of the Sonderkommandos have to be regulated in such a way that the segregation is effected as unobstrusively as possible and that the liquidations are carried out without delay and at such a distance from transient camps and villages as to insure their not becoming known to the other prisoners of war and to the population."
One need not be a Field Marshal to understand these orders. Any semi-literate person who received any one of these three orders would very well know that the Einsatzgruppen were murder squads. Leeb’s headquarters received all of them. Leeb does not deny this. He merely says that he does not recall reading them or doing anything about them. Far from being Leeb’s salvation, it is his condemnation.
A tabulation of the number of executions by Einsatzgruppe A, attached to Leeb’s Army Group, shows that, from the beginning of the Russian campaign to 15 October 1941, 135,567 persons were murdered, all but a few thousand of whom were Jews.3 The vast majority of these murders took
1. NOKW-2423, Pros. Exh. 244, Bk VI-AB, p. 14.
2. NO-3422, Pros. Exh. 367, Bk VI-GH, p. 214.
3. L-180, Pros. Exh. 956, Bk IX-P, p. 48.
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place in Lithuania, Latvia, and Estonia, which were within the operational area of Army Group North during part or all of the aforementioned period. Estonia, where 1,158 were killed, was always within the operational area of Army Group North, as shown by the operational maps in evidence. The Reichs Commissariat was established in Estonia on 5 December 1941, but Leeb conceded that the Commander of the Rear Area of the Army Group North still had military functions and powers after that date.1
Leeb tried to shift substantially all of the murders by Einsatzgruppe A into the area of the Reich Commissariat Ostland. He testified that Einsatzgruppe A had no connection to the Wehrmacht; that its crimes were never reported to the Wehrmacht and that they occurred hundreds of kilometers away from the front.
All of this is clearly refuted by the report of Stahlecker, Commander of Einsatzgruppe A, as well as numerous other documents. The murderous activities began during the first days of the campaign in active and close collaboration with Leeb’s immediate subordinates. Stahlecker said:2
"Einsatzgruppe ‘A’ after preparing their vehicles for action proceeded to their area of concentration as ordered on 23 June 1941, the second day of the campaign in the East. Army Group North consisting of the 16th and 18th Armies and Panzer Group 4 had left the day before. Our task was to hurriedly establish personal contact with the commanders of the Armies and with the commander of the army of the rear area (Army Group Rear Area). It must be stressed from the beginning that cooperation with the Armed Forces was generally good, in some cases, for instance with Panzer Group 4 under Gen. Hoeppner, it was very close, almost cordial. Misunderstandings which cropped up with some authorities in the first days, were cleared up mainly through personal discussions....At the start of the Eastern Campaign it became obvious with regard to the Security Police that its special work
1. Tr. pp. 2514-15.
2. Pros. Exh. 956, L-180, Doc. Bk 9-p, page 20.
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had to be done not only in the rear areas, as was provided for in the original agreements, with the High Command of the Army, but also in the combat areas....."
The Stahlecker report describes further the horrible massacre at Kowno which was captured by the 16th Army a few days after the campaign opened:1
"During the first pogrom in the night from 25 to 26. 6. the Lithuanian partisans did away with more than 1500 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 about 2,300 Jews were made harmless in a similar way. In other parts of the Lithuania similar actions followed the example of Kowno, though smaller and also including the Communists who had been left behind.
Those self-cleansing actions went smoothly because the Army authorities who had been informed showed understanding for this procedure. From the beginning it was obvious that only the first days after the occupation would offer the opportunity for carrying out pogroms."
Thus, Army authorities under Leeb were informed of the planned massacre before it even took place. Leeb’s own headquarters were located in Kowno from 1 to 10 July. He admits he heard of killings in Kowno while his headquarters were still in East Prussia, but denies any killings while his headquarters were in Kowno.2 It appears, however, that the murder and persecution of the Jews continued during the time Leeb was in Kowno and thereafter. The report above speaks of pogroms during the nights following 26 June. Another Einsatz report dated 11 July 1941 stated:3
"In Kowno a total of 7,800 Jews have been liquidated up to now, partly through pogroms, partly through shootings by Lithuanian Kommandos. All corpses have been removed. Further mass shootings are no longer possible; I summoned, therefore, a Jewish committee and explained that up to now we had no reason to interfere with the internal arrangements between the Lithanians and the Jews....
1. Pros. Exh. 956, L-180, Doc. Bk. 9-P, p. 30.
2. Tr. p. 2513.
3. Pros. Ex. 922, NO-2934, Doc. Bk. 9-N, pp. 101-102.
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Prisons now are being combed through once more, Jews -- if special reasons prevail -- are being arrested and shot. This will involve executions of minor nature of 50 to 100 persons only. To prevent Jews from returning to Kowno, an agreement was made with the Higher SS and Police Leader to the effect that the ORPO draw a cordon around Kowno not allowing any Jews to enter the town. If necessary, Jews will be fired upon. All Wehrmacht agencies were informed about the directives".
Leeb was asked what he did in connection with this wanton slaughter of over 7,500 Jews in an area controlled by his troops. His reply was that he told the 16th Army to prevent any further excesses.1 Assuming the truth of this highly doubtful statement, he caused no investigation to be made, he had no one brought to justice, he took no effective steps to avoid its repetition. His troops controlled the city, his subordinates knew of and supported and atrocities. They continued while Leeb was in Kowno. He did nothing.
Precisely parallel atrocities took place in Riga shortly following its capture by the 18th Army about 1 July 1941. An Einsatz report dated 7 July 1941 proves that units of Einsatzgruppe A h ad entered the city and instigated a pogrom. "All synagogues have been destroyed; 400 Jews have already been liquidated."2 It also pointed out that, as a result of the alleged shooting of a German soldier by a Jews, "100 Jews were shot on the very same spot by a Kommando of the Security Police and SD." But this was only the beginning. A report of 16 July 1941 stated:3
"At Riga, the Einsatzkommando 2 assroted [sic] the entire material, searched all offices, arrested the leading Communists as far as they could be found and, headed by SS-Sturmbahnfuehrer Barth, conducted in an examplary [sic] manner all actions started against the Jews. 600 Communists and 2,000 Jews were killed during pogroms in Riga and, since the arrival of EK 2, 300 by the Latvian auxiliary police and partly by our own men. The prisons will be emptied completely-during the next days. Outside of Riga additional 1,600 Jews were liquidated by the EK 2 within Latvia."
1. Tr. p. 2384
2. Pros. Exh. 958, NO-2935, Doc. Bk 9-P, p. 56.
3. Pros. Exh. 924, NO-2938, Doc. Bk. 9-O, p. 3.
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THE MARSHAL: The Tribunal is again in session.
MR. HORLICK_HOCHWALD: A report of 6 July 1941 establishes the murder of 526 persons by units of Einsatzgruppe A in Garsden, Prottingen, and Polangen. "During the three large-scale actions mainly Jews were liquidated. Among the number executed, however, there were also Bolshevist officials and snipers, some of which had, for this purpose, been handed over by the Wehrmacht to the Security Police.
Up to 16 July 1941, a unit of Einsatzgruppe A had killed 1,150 Jews in Duenaburg. "The arrested Jewish men are shot without ceremony and interred in already prepared graves....1 Between 22 and 25 July 1941, 229 persons designated as Communist Jews and Jewish women, Russians, Lithuanian Communist functionaries, and a Politruk were murdered by a unit of Einsatzgruppe A in Pagiviai, Kedainie, and Marianpole.2
The mass murders thus far discussed occurred in Lithuania, Latvia, and Esthonia between the beginning of the attack on Russia and 25 July 1941. Throughout the whole of this period, the places in which such massacres occurred were under Leeb’s jurisdiction in the operational area of Army Group North -- which extended from the border of the Reich to his front line. The Reichs Commissariat Ostland was first established on 25 July 1941 and extended to the Duena River.3 Most of the cities where the massacres took place were at the time located in the Rear Area of Army Group North, while Kowno was, for part of the time Leeb’s own headquarters.
When Dorpat and Reval in Esthonia were captured by troops of Army Group North, "a Kommando of the Security Police was always with the first army units".4 The same report showed that up
1. Pros. Exh. 924, NO-2938, Doc. Bk 9 O, p. 3.
2. Pros. Exh. 959, NO-2849, Doc. Bk 9 P, p. 59.
3. Leeb, Tr. p. 2516; also operational maps of 7 and 20 1941. Exh. 1480, NOKW-3150, and Exh. 1481, NOKW-3151.
4. Pros. Exh. 956, L-180, Doc. Bk. 9 P, p. 20.
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to 25 October 1941, 474 Jews and 684 Communists had been executed in Esthonia.1 A report of Einsatzgruppe A covering its activities up to the end of 1941 states "Today there are no longer any Jews in Esthonia."2
During the time when these atrocities occurred, Esthonia was part of the operational area of Army Group North.3 The cities of Reval, Dorpat, Marvan, and Pirnau in Esthonia were in the Rear of Army Group North during the month of October 19414 Martin Sandberger, a defendant in Case No. 9, was chief of Sonderkommando 1a of Einsatzgruppe A. His conviction and sentence of death in that case was based upon murders committed during 1941 when he was at all times active within the operational area under Leeb’s jurisdiction. Of particular interest is the following finding by Tribunal II in that case:5
"On September 10, 1941, Sandberger promulgated a general order for the interment of Jews which resulted in the interment of 450 Jews in a concentration camp in Pleskau...The Jews were later executed."
Pleskau was Leeb’s headquarters prior to September 1941 until he resigned in January 1942. How much greater was the power and responsibility of Field Marshall Leeb and his commanders of the 16th and 18th Armies, Panzer Group 4, and the Rear Area of Army Group North than that of the insignificant SS Colonel Sandberger? One might as well liken the "blazing glory of the noon day sun to the tiny flicker of the fire-fly".
The murderous collaboration between Leeb’s troops and Einsatzgruppe A continued.
The localities mentioned in a series of four reports, covering the period from the middle of October to the end of November
1. Ibid, p. 48.
2. Pros. Exh. 957, 2273-PS, Doc. Bk. 9 P, p. 51.
3. Leeb T r. p. 2515.
4. Leeb Tr. p. 2521; see also the operation map. Pros. Exh. 1493, NOKW-316
5. United States v. Ohlendorf et al (Case No. 9) p. 6819.
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and proving the murder of approximately 1,200 persons with the active participation of Leeb’s subordinates, were in the very front area of Army Group North as shown by the operational maps in evidence.1 It should also be pointed out that Sonderkommando 1a under Sandberger or Einsatzgruppe A established an office in Pleskau as early as 10 July 1941.2 It was still there on 16 January and during substantially all of that period Leeb had his headquarters in Pleskau.3
A report of the 281st Security Division of the Rear Area of Army Group North dated 1 August 1941 states that "200 Communists and Jews from the district of Rositten were shot in the morning hours by the Latvian Self-Defense."4 The slaughter of Jews at Rossitten was reported four days later; the same document reports:
"In the early morning of 5 August several hundred Jews were shot by the Latvian Self-Defense. In order to forestall any misinterpretation the Division has established by inquiry of the C.G. that this special operation was ordered and carried out by order of the SD.
The Divisional Commander presented the facts of the case to the officers on the Divisional Staff at an officers conference and added the grave reminder that every soldier had to abstain from criticism of, and comments on those matters."
The Commander of 281st Security Division knew the slaughter of Jews was official army policy, and put these incidents in his report to higher headquarters, but the Field Marshal who commanded him testified he didn’t know. The city of Rossitten, Latvia was in the Rear Area of Army Group North before and after this mass murder, and units of the 281st Security Division were stationed there during that time.6
1. Pros. Exh. 1490, NOKW-3160, Ex. 1495, NOKW 3165, Exh.1496, NOKW-3166.
2. Pros. Exh. 906, NO-3401, Doc. Bk. 9 N, p. 41
3. Pros. Exh. 901, NO-3405, Doc. Bk. 9 N, p. 17
4. Pros. Exh. 962, NOKW-2150, Doc Bk. 9 P, p. 65
6. Leeb Tr. p. 2517-18
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Another example of blissful ignorance is the defendant Roques. From his headquarters was issued an order which reads:1
"execution measures against certain parts of the population (in particular against Jews) are expressly reserved to the forces of the Senior SS and Police Leader, especially in those districts which have already been pacified."
On the 29th and 30th September 1941 about 34,000 Jews were slaughtered by units of Einsatzgruppe C in Kiew2 which was occupied by troops which were subordinate to Roques. His chief of staff visited the unit which registered these killings on the day after the unprecedented massacre occurred. Nevertheless, Roques denies that he ever heard of the killing of the Jews in Kiew from his chief of staff or anyone else.3
During the month of August 1941, 44,000 Jews were killed by units of the Higher SS and Police Leader.4 This dignitary was the representative of the Security Police and the SD in Roques’ area.5 He usually had his headquarters in the same locality as the defendant and frequently dined with him and his officers.6 But, strangely enough, Roques did not learn what the tasks of this man were. Twenty-three thousand of those 44,000 victims of Roques’ dinner-partner, were killed in Kamieniec Podolsk during three days.7 On 2 September Roques’ chief of staff had a conference at the headquarters of Army Group South in which the figures "concerning the settlement of the Jewish quest on in Kamieniec Podolsk" were discussed.
The Higher SS and Police Leader, however, was in no way as reluctant and secretive as Roques wants us to believe. A report
1. Pros. Exh. 1575, NOKW-2594, Tr. p. 5479.
2. Pros. Exh. 951, NOKW-2129, Doc, Bk. 9 P, p. 1
3. Pros. Exh. 951A, NOKW-2129, Tr. p. 5491.
4. Pros. Exh. 943, NO-3146, Doc. Bk. 9 O, p. 66
5. Tr. p. 5294
6. Tr. p. 5471
7. Pros. Exh. 940, NO-3154, Doc. Bk. 9 O-, page 52.
8. Pros. Exh. 938, NOKW-1554, Doc. Bk. 9 O, p. 50.
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of his, a copy of which was forwarded to the defendant, states unequivocally that 1,658 Jews had been killed in a mopping-up operation.1 Does it need to be said that by a happy coincidence Roques never learned about the contents of this report? It should further not be assumed that the Higher SS and Police Leader having executed 44,000 in August, did not proceed to murder in September. A report of 19 September 1941 reveals that 1,303 Jews, among them 875 Jewesses over twelve years old were executed by units subordinated to him. The place of the massacre, Berditschew, was at that time the headquarters of Roques.2
On the 19 September 1941 the Jewish district Shitomir was evacuated and all Jews of the placem [sic] 3145, in number, were transported by 12 trucks, which has been placed at the disposal of the Einsatzgruppen by the Feldkommandantur and the City Administration of Shitomir, outside the city limits. The 3,145 Jews were registered and executed. Fifty to sixty pounds of underwear, clothing etc. were transferred to the National Socialist People’s Welfare Organization. This execution was carried out on the basis of decisions which were made at a joint conference between the representative of the Einsatzkommando and the Feldkommandantur. There it was decided "to liquidate the Jews of Shitomir completely and radically".3 Shitomir at that time was located in the Rear Area of ARmy Group South, thus the Feldkommandant by whom these killings were approved was subordinate to Roques.4
Roques’ own witness admitted having watched an incident at the very outbreak of the war, when the Jews of Dobromil were
1. Pros. Ex. 81, NOKW-1165, Doc. Bk. 3A, p. 116-7.
2. Pros. Ex. 1485, NOKW-3155.
3. Pros. Ex. 945, NO-3140, Doc. Bk. 9O, pages 79-90.
4. Roques Tr. p. 5487, Pros. Ex. 1482, NOKW 3152, Pros. Ex. 1489, NOKW-3159
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herded together in the market square by the SD, and the Ukrainian militia. This happened in the immediate vicinity of the defendant’s headquarters. Office of Roques’ staff were present and observed this incident.1 The witness was under the impression that the defendant suffered a mental shock as a result of this experience.2 One of the incidental effects must have been amnesia, as Roques maintains that he never learned about the task of the SD.
When approximately 90,000 Jews were murdered by units of Einsatzgruppe D,3 Woehler was chief of staff of the 11th Army. In his capacity as chief of staff, he wielded no executive power, but had command authority over the members of the staff. Those officers collaborated closely with Einsatzgruppe D.
Ohlendorf testified, as a witness for Woehler, that the orders for the commitment of Einsatzgruppe D and its subordinates, the intelligence and counter-intelligence officers, had complete knowledge of the extermination task of the Einsatzgruppen and worked with them every day.
Woehler asked Ohlendorf to turn over to the Army all watches obtained from "actions" against Jews4 and when Ohlendorf complied with this request and reported that a further shipment of watches from the "drive against Jews" could be made available to the 11th Army if they were needed, Woehler answered with an emphatic "yes".5
1. Tr. p. 8944.
2. Tr. p. 8927.
3. Pros. Ex. 914, NO_3359, Doc. Bk. 9 N, p. 70
4. Pros. Ex. 568, NOKW-631, Doc. Bk. 8, p. 96.
5. Pros. Ex. 1606, NOKW-3238, Tr. p. 6046-47.
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Woehler’s defense is that he was of the opinion that those watches were obtained from Jews who had been "resettled". There is an answer in the record to the question of what such "resettlement" meant. There are many documents in evidence where a word in connection with the treatment of Jews is crossed out and replaced by the word, resettlement. One of those reports bears clear proof what the original word was. It reads:1
"The –(original word is crossed out and replaced by the handwritten word resettlement) of the Jews, numbering about 2,500, was carried out on 1, 2, and 3, December. Subsequent executions are to be expected since part of the Jewish population fled, is hiding and has to be apprehended first."
1. Pros. Ex. 891, NOKW-1628, Doc. Bk. 9 [unclear], p. 68.
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Woehler received reports which stated that the indigenous population was liberated "from the Communits and Jews who had remained behind";1 that Sonderkommando 11a, a sub-unit of Einsatzgruppe D, was "straightening out the Jewish question" in Nikolajew,2 and that the "Crimea was free of Jews".3
On the 3rd of July 1941 the defendant issued an order that the Einsatzkommando of the Security Police should proceed to Belzy.4 This Einsatzkommando promptly killed the Jewish Council of Elders and 45 other Jews there. It further directed the Romanian Police to shoot an unidentified number of Jews.5
On 9 July Einsatzkommando of Einsatzgruppe D reported through the 11th Army:6
"On the basis of available wanted lists and newly compiled records, on the 7th of this month the arrest of Jews and Communists began. On the 8th of this month a large-scale operation was conducted in the course of which it was possible to catch all the leading Jewish elements with only a few exceptions. On the following day about 100 Jewish Communists were shot by the Kommando. Counting also the executions of Jews carried out by the Romanian armed forces and Police, a total of over 500 Jews were shot in the course of the 8th and 9th of this month. A detachment was sent to Hodin to screen that place."
Woehler's counter-intelligence officer received and copied the report.
Woehler himself ordered the Einsatzkommando to remain in Czernowitz. 3,105 Jews and 34 Communists were liquidated in this place by the Einsatzkommando.7
On the 4th of August, 1941, Einsatzgruppe D reported to
1. Pros. Ex. 1607, NOKW-3236, Tr. P. 6048.
2. Pros. Exh. 1609, NOKW-3234, Tr. P. 6058.
3. Pros. Exh. 916, NOKW-628, Doc. Bk. 9-N, page 74.
4. Pros. Exh. 1605, NOKW-3453, Tr. p. 6027.
5. Pros. Exh. 928, NO-2952, Doc. Bk, 9-), p. 19.
6. Pros. Exh. 1605, NOKW-3453, Tr. p. 6027.
7. Pros. Exh. 858, NO-2837, Doc. Nk. 9-L, p. 43.
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the 11th Army that 68 Jews and a number of Jewish hostages had been shot by Sonderkommando 11a Kishinjew. Woehler read this report.1 He obviously had sent the Sonderkommando to Kishinjew with the order to seize Jews and politically undesirable elements.2 On the same day Woehler received a report that in Kodyma 97 Jews had been executed by a unit of Einsatzgruppe D.3 These Jews had been shot with the approval of the defendant Salmuth by the execution squad consisting of 12 members of Einsatzkommando 10a and of 24 soldiers who belonged to units subordinated to Salmuth.4 Salmuth in turn was subordinated to the 11th Army.
On 14 November 1941, the Ortskommandatur of Sinferopol reported to the Rear Area of the 11th Army that "the 10,000 Jews remaining are being executed by the SD".5 At the time Woehler's headquarters was 15 to 20 miles away from Sinferopol.6 The Oberquartiermeister of the 11th Army, Woehler's direcg subordinate, was located in the city itself. Nevertheless, Woehler wants the Tribunal to believe that he never heard of the killing of Jews in the area of the 11th Army. Einsatzgruppe D reported on the 12th of December 1941 from Sinferopol:7
2,910 more Jews and 19 Communist officials were shot after summary proceedings. Thus the sum total of executions has risen to 54,696."
The final answer to this contention of all the defendants was given by a young medical officer, the witness Dr. Fruechte:8
"For every officer and for every enlisted man it was, at that time, a matter of course that every Jew was shot.
1. Pros. Exh. 1594, NOKW-3233, Tr. p. 9571.
2. Rebuttal Exh. 113, NOKW-3557, Tr. p. 5982.
3. Pros. Exh. 1595, NOKW-3237, Tr. p. 5982.
4. Pros. Exh. 741, NOKW-586, Doc. Bk. 9-I, p. 10.
5. Pros. Exh. 883, NOKW-1573, Doc. Bk. 9-M, p. 52.
6. Tr. p. 6054.
7. Pros. Exh. 893, NO-2828, Doc. Bk. 9-M, p. 70.
8. Tr. p. 9115, 9117.
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This subject was discussed with almost everybody with whom one talked for more than three minutes. At least it was brought up, and I have not talked to anyone who said: 'That is completely new to me. I don't know anything about it. What are you telling me'. It was a completed fact for everybody."
If Your Honors please, General Taylor will read the conclusion.
GENERAL TAYLOR: Mr. President:
THE PRESIDENT: General Taylor.
This concludes our discussion of the evidence under the charge of the Indictment. Many serious accusations have not been dealt with: the "Nacht und Nebel" decree formulated by Lehmann, the orders and practices for the execution of hostages which played such a large part in the "Hostage" case,1 the plunder of property and the wanton destruction and devastation of towns and villages, the force labor of women and children on trenches and fortifications under the most rigorous conditions of work; and the conduct of Leeb and Kuechler outside Leningrad. We have endeavored to select material for discussion today with respect to which defenses have been raised which are common to several or all of the defendants, in the belief that such a selection would be most helpful to an appraisal of the case as a whole.
In conclusion, we would like to deal briefly with the question of mitigation. In some instances, the defendants were acting in accordance with orders or decrees issued by superior military authorities, and Control Council Law No. 10, like the London Charter, provides that such a circumstance "may be considered in mitigation".2 In the cases of Keitel and Jodl, the International Military Tribunal was unable to find any circumstances which could be considered
1. United States v. Wilhelm List et al., (Case No. 7)
2. Para. 4 (b) of Article II
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in mitigation. Are the principal defendants in this case in any better situation?
In his Opening Statement on behalf of the defendant Leeb, his counsel declared that these defendants were "unprepared for the means with which Hitler fought", that they "were not equal to or able to cope with his demoniac personality", and that "it was too late when they recognized the true nature of this man".1 Assuming the truth of these observations, do they indeed constitute a true measure of the defendant's guilt? Should these circumstances be allowed to mitigate responsibility for this most terrible of all wars, for the overrunning of harmless neutral neighbors, and for the countless deaths of commandos, commissars, Jews, and other victims whose miserable fate the evidence of this case has unfolded?
Again, the defense tells us repeatedly that these men were caught up in an impossible situation which allowed of no solution whatsoever; as Dr. Laternser put it, "it has been their fate to arrive at situations and in particular to be brought into situations by the leadership for which, even today, the prosecution cannot suggest an escape that might have been open at the time."2 And the defendant Leeb himself, after testifying concerning his conduct with respect to the Commissar Order, declared:3
"I have had ample time and opportunity to think about this order and about what we did at that time under the pressure of responsibility and here I must admit I don't know even today any better way.....I really don't know how we could do it differently today."
Were these men - these Fieldmarshals and Generals - really so enmeshed that it was impossible for them to avoid crime?
1. Opening Statement of Dr. Laternser, p. 5
2. Opening Statement of Dr. Laternser, p. 21.
3. Tr. p. 2353.
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We should observe, at the outset, that it is not the duty of a prosecutor in drawing and indictment, or of a Tribunal in determining guilt or innocence, to tell the defendant how he should have ordered his life. The man who has no problems - whose material wants are satisfied, whose domestic life is contented, and whose personality is in harmony with the circumstances of his environment - such a man is rarely found in the defendant's dock. Crimes are most often committed when men find themselves in difficult situations, subject to pressures, temptations and fears. The pangs of hunger, the lust for wealth and comfort, a dark and violent upbringing, the frustration of emotional needs, pressures and fears - all these things help us to understand the criminal and why he became such. It is not part of the function of the prosecution at the bar or the judge on the bench to explain to the defendant what turn he should have taken at each fork in the road in order to avoid the temptation or the fear which ultimately led him into crime. Primarily, these are problems for the psychiatrist and the penologist. But they do play a part -- and rightly -- within the limits of the discretion vested in the judge -- when he c omes to impose sentence, and for that reason we deem it appropriate to make a few observations on this score. What is the measure of the guilt of these defendants?
In approaching this problem, we suggest that there are at least three questions the answers to which will help to guide us toward a wise solution. How strong were the pressures on the defendants, and what paths were open to them? What is their present attitude in retrospect toward their own conduct? How will the decision as to the measure of their guilt affect other persons in related situations, and what effect will it have on organized human society?
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On the first point, we must bear in mind that we are not dealing here with the ordinary soldier who, in the company of his comrades and subject to all the pressure of group behavior and violent atmosphere of combat, is ordered by his commanding officer to commit a criminal act. That is the ordinary situation to meet which the doctrine of mitigation by virtue of superior orders was devised. Such a soldier is not accustomed to responsibility or the resolution of difficult problems, is trained to instantaneous and instinctive obedience, has no time for reflection, and is in imminent and mortal peril if he disobeys or even hesitates. These defendants were not in that situation. Where their crimes were instigated by orders from above, the orders came in writing from a distant place, were received by the defendants at a headquarters of which they were in command, and there was full opportunity for reflection on the course of action to be pursued.
To see what paths were open to these men, let us once again look at the Commissar Order as an example. At bottom, Leeb's defense comes down to his contention that he could not openly oppose the order because, had he done so, his opposition "would have become known immediately to the highest quarters and…in any case, Hitler would have found out about this strong opposition".1 Therefore, since he disapproved the order, his only avenue of escape was what he called "tacit sabotage".
A moment's reflection will show that this is utter nonsense and a post-fabricated excuse. It is perfectly obvious that the Commissar Order had to be opposed openly or not at all. The order had been announced at a meeting with Hitler at which all of the principal Commanders-in Chief were
1. Tr. p. 2351.
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present. A number of people participated in drafting it, and copies were dispatched to all the principal headquarters on the Eastern front. Hitler’s intention to issue such an order, and subsequently the existence of the order itself, immediately became known throughout the higher circles of the Army. Himmler’s SS also had functions to perform in connection with the Commissar Order, and its existence was known throughout the SS and SD on the Eastern front. Let us assume that Leeb and the other defendants, when they passed the Order down, actually did what they now say they did. Let us assume that they personally passed down firm instructions that the order was not to be complied with, and the information that the Commander-in-Chief of the Army and all the Field Commanders-in-Chief were opposed to the order and had directed that it not be observed. What would have happened?
The answer is perfectly clear -- the order would not have been carried out by the troops of the German Army, and their failure to carry it out would have soon become known to Hitler and the OKW. Hardly a week could have passed before the Einsatzgruppen and the screening teams of the SD would have observed that the Army was not carrying out the order, and report their failure to Himmler. Hardly more time could have elapsed before ordinary military channels of information - intelligence reports, visits to Berlin by officers on leave from the f ront, reports of liaison officers from the OKH and OKW -- would have made it apparent to Hitler and the OKW that the order was not being obeyed. Indeed, in the happier days before the documents established that the Commissar Order was in fact passed down and was in fact executed, counsel for the generals took the position that the Commissar Order was not
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passed down, or was passed down with directions to disobey it -- and, exactly in line with what we are now saying -- that this pattern of conduct constituted open opposition to the Commissar Order:1 "The Commanders-in-Chief of the Army Group or Army either did not pass this order on to their troops at all, or they ordered, on their own authority, to evade it. They did so in full consciousness of the danger that they might be heavily punished for open disobedience in war to an order of the supreme commander."
1. Closing Statement of Dr. Laternser before the IMT, page 65.
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When we say that the Commissar Order had to be opposed openly or not at all, we of course refer to the general pattern of conduct of the Commanders-in-Chief as a group. It probably would have been possible for one or two individual commanders to secretly disobey the order by merely throwing it in the waste basket and not passing it down to their subordinates. That is what Dr. Laternser tells us that Fieldmarshal Rommel did with the Commando Order. That is what the defendant Leeb told us he did with respect to the Fiftieth Corps and the Army Group Rear Area, and that is what the defendant Kuechler told us he could not do with respect to his subordinate units. This device of secret disobedience might have furnished a personal solution for a few of the Commanding Generals, but if adopted by all it would, of course, speedily have attracted attention and amounted to the equivalent of open disobedience.
In short, the idea of "tacit sabotage" of a widely-known, highly controversial order such as the Commissar Order is as apocryphal as the Phoenix or the unicorn. That is precisely why the defendants were led into such a maze of self-contradictions and absurdities in their d esperate efforts to make the unicorn come to life. That is why we hear in one breath that most Commissars committed suicide or ripped off their insignia in fear of what they knew would be their fate, and in the other that the order was not carried out. That is why we are told one minute that the reports of executions were concocted to deceive higher headquarters, and the next minute that the reports prove so small a number of executions that disobedience to the order must have been the rule.
Secret disobedience, accordingly, was impossible for more than a few and "tacit sabotage" is a myth. When Leeb and
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the other defendants received the Commissar Order they could either have swallowed it or refused to obey it. The proof clearly establishes that they swallowed it, and the defense evidence proves only that when they swallowed it, it may have tasted bad. And he who swallows an order such as the Commissar Order must be prepared to take the consequences. It is all very well to talk about the necessesity for obedience to orders and the maintenance of discipline, but when we are concerned with an order such as the Commissar Order which, instead of promoting discipline, undermines it, an order which the defendants all claim constituted an egregious example of military stupidity, an order which directs the commission of murder on a vast scale, and an order which the defendants well knew was a shame and a blot on the Army to which they had devoted their lives, there is but one conclusion. No man could serve his Army or his country by obeying such an order.
It is academic to debate the question whether, if all the Commanders-in-Chief had openly declared their unwillingness to ob ey the Commissar Order, the result would have been a modification of the order, or their dismissal and replacement by other generals. It is academic and speculative to debate whether they would have had a better chance of changing Hitler’s mind by a less ostentatious manifestation of disagreement which might better have enabled him to save his face. In any event, there is absolutely no basis to assume that a dignified expression of unwillingness to comply with an order which was not only criminal but stupid would have had no effect on Hitler. Whatever may have been Hitler’s other faults, he was not totally without intelligence, and, at least until the later stages of the war, there is no indication that he felt he could get along without generals to lead
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his troops. Throughout the war, Hitler never turned to anyone but the generals to lead his troops, except in two or three instances out of hundreds.1 Why was the defendant Leeb himself called back from retirement in 1938 and again in 1939 although, according to his own testimony, he was in disfavor with Hitler and Himmler because of his religious convictions and other manifestations of opposition to Nazism? As the defense witness Halder testified, Hitler was unable and unwilling to replace even the generals whom he mistrusted "because at least at the beginning, he did not think that he could forego the expert knowledge of these generals", and this attitude on Hitler’s part continued "approximately until the end of 1941 and the beginning of 1942", many months after the issuance of the orders involved in this case.2
The defendants have told us that they would have been reluctant to resign in protest against such orders as the Commissar Order, because that would have involved an abdication of their responsibility towards their troops and would merely have led to their replacement by others who would have been more willing to conform to Hitler’s desires. Yet, when Hitler began to interfere seriously in tactical matters at the time Halder mentions, the generals resigned in droves. Leeb and Hitler came to a parting of the ways because of a disagreement on tactical matters and three years later the same thing occurred between Hitler and Kuechler. If it was abdication of responsibility towards the troops, and an invitation for replacement by weaker men, to come to an open break with Hitler over the Commissar Order, or the Barbarossa jurisdiction order, or any of the other criminal
1. During the last years of the war, Himmler, Sepp Dietrich and one or two other SS leaders were given high military commands.
2. Halder, Tr. p. 2026.
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orders, it was equally an abdication to come to a break because of tactical disagreements. And whether or not it was theoretically possible to resign one’s command voluntarily, it was perfectly easy, as Kuechler put it, to "make demands in such a way that a break must occur".1 The records of the German Field Marshals and generals are full of just such instances where a resignation was accepted, or where Hitler on his own initiative relieved a commander, because of tactical disagreements. It is perfectly plain, in short, that the German generals thought that tactical matters were sufficiently vital to warrant forcing matters with Hitler to the breaking point, but did not so regard the criminal orders and policies which are the subject of this proceeding. It is not for the prosecution to say whether any particular defendant should or should not have resigned, or openly declare his refusal to obey an order such as the Commissar Order, or adopted some other solution of the problem. The choice between these several alternatives would , for any individual, be governed by his temperament and his estimate of the overall situation at the time. But that there were solutions to this problem other than that which the defendants adopted is perfectly plain.
To conclude on this point, we must not forget that one can find no basis for mitigation in a superior order, if there is no evidence that the defendants’ will was affected and coerced by the order. If the defendants’ will coincided with that of the superior who issues the criminal order, or if, having full opportunity for reflection and choice, he makes no serious effort to avoid the commission of crime, there is no basis for mitigation and we find the defendants - such as Hoth - actively furthering the objectives of these
1. Tr. p. 2982.
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criminal orders by stirring up the troops to hatred of the Jews, we must conclude that these are circumstances not in mitigation but in aggravation.
To turn to the second question, have the defendants demonstrated here an attitude in retrospect toward their own conduct which invites judicial clemency to find circumstnaces in mitigation? There are many new roofs in Nurnberg: can we see reconstruction under way in this Courtroom? Regretfully, such is not visible from where we sit. The defendants have not hesitated to resort to inconsistent and implausible excuses, and have denied knowledge of things which must have truly assailed all their seven senses. The defendants are not sleepy, unobservant or insensitive men. The defendant Leeb, for example, is a cultured and highly intelligent person, fully alive to the moral factors in a situation; to see this we need look no further than his correspondence with Brauchitsch concerning the offensive in the West and the violation of the neutrality of the Low Countries. He distrusted Hitler, and was disgusted with Himmler’s policies and - to say the least - suspicious of his organization. He knew of the atrocities of the SS in Poland. He heard Hitler in March of 1941 outline the barbaric and terrible program of warfare in Russia. He saw the Commissar Order and the Barbarossa jurisdiction order emerge. He knew that units of Himmler’s SS were coming with his own troops for special political tasks. He says that he complained about these matters to his Commander-in-Chief and to his fellow commanders, and his staff must have been aware of this. His headquarters received orders for the screening of prisoners and the liquidation - the murder - of "undesirable elements". His headquarters received reports of the
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murder of Commissars. Thousands upon thousands of Jews and others were murdered in his operational area. It is quite incredible that such a man as Leeb under all these circumstances would have known nothing about these murders and atrocities. We do not believe that his denial of such knowledge furnishes the basis for mitigation or leniency.
Finally, we cannot fix our gaze exclusively on the defendants’ dock. The acts of the defendants profoundly affected millions of other men, and the decision in this case is not to be rendered in a vacuum. The judicial process is a social process. There are others to be considered beside the defendants, and I do not refer to the millions who lie buried because of the events related by the record of this case. They, too, have their claim to make here, but their strongest claim is that these things should not be repeated.
The doctrine of mitigation by virtue of superior orders is a doctrine the purpose of which is to protect those whose opportunity for reflections, choice, and the exercise of responsibility, is non-existent or limited. In modern military organization, the chain of command runs up from the ordinary soldier through his officers to the military commander-in-chief and then to the Supreme Command, which may be lodged in a Chief of State, a President, a Cabinet, or other civilian agencies. Within this structure, everyone is subject to orders, even if he is a Fieldmarshal. Obviously, the doctrine of mitigation by superior orders is not intended to give a blanket protection to anyone, no matter how highly placed, merely because he is in the military hierarchy and responsible to someone else. Otherwise, the entire doctrine of individual responsibility would be destroyed, and the Chief of State himself would be the only one who could not claim mitigation.
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That is why, may it please the Tribunal, the prosecution firmly believes that it would be unwise, and unfair to the millions of troops who served under these defendants, to give weight to the doctrine of superior orders as applied to such defendants as Leeb, Kuechler, Hoth and others whose positions were at or near the top of the military hierarchy. Countless criminal outrages occurred in the sphere of command of these defendants. Somewhere, there is unmitigated responsibility for these atrocities. Is it to be borne by the troops? Is it to be borne primarily by the hundreds of subordinates who played a minor role in this pattern or crime? We think it is clear that that is not where the deepest responsibility lies. Men in the mass, particularly when organized and disciplined in armies, must be expected to yield to prestige, authority, the power of example, and soldiers are bound to be powerfully influenced by the examples set by their commanders. That is why we said, in our opening statement that "the only way in which the behavior of the German troops in the recent war can be made comprehensible as the behavior of human beings is by a full exposure of the criminal doctrines and orders which were pressed upon them from above by these defendants and others". Who could the German Army look to, other than Leeb and the senior Fieldmarshals, to safeguard its standards of conduct and prevent their disintegration: If a decision is to be rendered here which may perhaps help to prevent the repetition of such events, it is important above all else that responsibility be fixed where it truly belongs. Mitigation should be reserved for those upon whom superior orders are pressed down, and who lack the means to influence general standards of behavior. It is not, we submit, available to the commander who participates in
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bringing the criminal pressure to bear, and whose responsibility it is to ensure the preservation of honorable military traditions.