(September 29, 1947)
MR. FERENCZ: May it please your Honors: It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenseless men, women, and children. This was the tragic fulfillment of a program of intolerance and arrogance. Vengeance is not out goal, nor do we seek merely a just retribution. We ask this Court to affirm by international penal action man's right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law.
We shall establish beyond the realm of doubt facts which, before the dark decade of the Third Reich, would have seemed incredible. The defendants were commanders and officers of special SS groups known as Einsatzgruppen - established for the specific purpose of massacring human beings because they were Jews, or because they were for some other reason regarded as inferior peoples. Each of the defendants in the dock held a position of responsibility or command in an extermination unit. Each assumed the right to decide the fate of men, and death was the intended result of his power and contempt. Their own reports will show that the slaughter committed by these defendants was dictated, 'not by military necessity, but by that supreme perversion of thought, the Nazi theory of the master race. We shall show that these deeds of men in uniform were the methodical execution of long-range plans to destroy ethnic, national, political, and religious groups which stood condemned in the Nazi mind. Genocide, the extermination of whole categories of human beings, was a foremost instrument of the Nazi doctrine. Even before the war the concentration camps within the Third Reich had witnessed many killings inspired by these ideas. During the early months of the war the Nazi regime expanded its plans for genocide and enlarged the means to execute them. Following the German invasion of Poland there arose extermination camps such as Auschwitz and Maidanek. In spring 1941, in contemplation of the coming assault upon the Soviet Union, the Einsatzgruppen were created as military units, but not to fight as soldiers. They were organized for murder. In advance of the attack on Russia, the Einsatzgruppen were ordered to destroy life behind the lines of combat. Not all life to be sure. They were to destroy all those denominated Jew, political official, gypsy, and those other thousands called "asocial" by the self-styled Nazi superman. This was the new German "Kultur".
Einsatz units entering a town or city ordered all Jews to be registered. They were forced to wear the Star of David under threat of death. All were then assembled with their families to be "re-settled" under Nazi supervision. At the outskirts of each town was a ditch, where a squad of Einsatz men waited for their victims. Whole families were arrayed, kneeling or standing near the pit to face a deadly hail of fire.
Into the prisoner-of-war camps went the Einsatz units, selecting men for extermination, denying them the right to live.
Helpless civilians were conveniently labled "Partisans" or "Partisan-sympathizers" and then executed.
In the hospitals and asylums the Einsatzgruppen destroyed the ill and insane, for "useless eaters" could never serve the Third Reich.
Then came the gas vans, vehicles which could receive living human beings and discharge corpses. Every Einsatzgruppe had its allotment of these carriages of death.
These in short were the activities of the Binsatzgruppen.
The United States, in 1942, joined 11 nations in condemnation of these Nazi slaughters and vowed that justice would be done. Here we act to fulfill that pledge, but not alone because of it.
Germany is a land of ruins occupied by foreign troops, its economy crippled and its people hungry. Most Germans are still unaware of the detailed events we shall account. They must realize that these things did occur in order to understand somewhat the causes of their present plight. They put their faith in Hitler and their hope in his regime. The Nazi ideology, devoid of humanism and founded on a ruthless materialism, was proclaimed through-out Germany and was known to all Germans. Hitler and other Nazi leaders made no secret of their purpose to destroy the Jews. As we here record the massacre of thousands of helpless children, the German people may reflect on it to assess the merits of the system they so enthusiastically acclaimed. If they shame at the folly of their choice they may yet find a true ideal in place of a foul fetish.
Proof of a million murders will not be the most significant aspect of this case. We charge more than murder, for we cannot shut our eyes to a fact ominous and full of foreboding for all of mankind. Not since men abandoned tribal loyalties has any state challenged the right of whole peoples to exist. And not since medieval times have governments marked men for death be- cause of race or faith. Now comes this recrudescence - this Nazi doctrine of a master race-an arrogance blended from tribal conceit and a boundless contempt for man himself. It is an idea whose toleration endangers all men. It is, as we have charged, a crime against humanity.
The conscience of humanity is the foundation of all law. We seek here a judgment expressing that conscience and reaffirming under law the basic rights of man.
As this trial deals with the crime of genocide, it is essential to investigate the basic tenets and the development of the Nazi doctrine which inspired the crimes we shall prove. It is conceded that the Nazis neither invented nor monopolized this idea of superior peoples, but the consequences they wrought gave it a new and terrible meaning. The Nazi conception has little in common with that arrogance and pretention which has frequently accompanied the mingling of different peoples. The master race dogma as the Nazis understood and practiced it was nothing less than the most all-encompassing and terrible racial persecution of all time. It was one of the most important points of the "unalterable program of the Nazi party" and the only one which was consistently advanced from the very beginning of Nazi rule in Germany to the bitter end. It was, as Gottfried Feder, the official commentator of the Nazi program, called it "the emotion foundation of the Nazi movement". The Jews were only one of the peoples marked for extermination in the Nazi program. The motivation of the crime of genocide, as it was carried out by Hitler and his legions in all of the occupied and dominated countries, stemmed from the Nazi ideology of "blood and race". In this theory of the predominance of the alleged Nordic race over all others and in the mystic belief that Nordic blood was the only creative power in the world, the Einsatzgruppen had their ideological basis. In this primitive theory, derived in part from Nietzsche's teaching of the Germanic superman, the Nazis found the justification for Germany's domination of the world. As Rosenberg put it in mystic fog:
"A new faith is arising today; the myth of the blood, the faith, to defend with the blood the divine essence of man. The faith, embodied in clearest knowledge that the Nordic blood represents that mysterium which has replaced and overcome the old sacraments."
In his speech, concluding the Reichsparteitag in Nuernberg, on 3 September 1933, Hitler professed a similar creed, but gave it a more practical expression:
"But long ago man has proceeded in the same way with his fellowman. The higher race - at first higher in the sense of possessing a greater gift for organization - subjects to itself a lower race and thus constitutes a relationship which now ernbraces races of unequal value. Thus there results the subjection of a number of people under the will often of only a few persons, a subjection based simply on the right of the stronger, a right as we see it in nature can be regarded as the sole conceivable right because founded on reason."
This theory led the Nazis to consider many of the other nations and races, particularly the Slavs of Eastern Europe, as inferior, and Jews and gypsies as sub-human. From this thesis to the conclusion that inferior people should be decimated, and sub-humans exterminated like vermin, is but an easy step. The International Military Tribunal found in its judgment -
"The evidence shows that at any rate in the East, the mass murders and cruelties were not committed solely for the purpose of stamping out opposition or resistance to the German occupying forces. In Poland and the Soviet Union these crimes were part of a plan to get rid of whole native populations by expulsion and annihilation, in order that their territory could be used for colonization by Germans. Hitler had written in 'Mein Kampf'on these lines, and the plan was clearly stated by Himmler in July 1942, when he wrote: 'It is not our task to Germanize the East in the old sense, that is to teach the people there the German language and the German law, but to see to it that only people of purely Germanic blood live in the East.'" *
In August 1942 the policy for the eastern territories as laid down by Bormann was summarized by a subordinate of Rosenberg as follows:
"The Slavs are to work for us. Insofar as we do not need them, they may die. Therefore, compulsory vaccination and Germanic health services are superfluous. The fertility of the Slavs is undesirable."
and
"In Poland the intelligentsia had been marked down for extermination as early as September 1939, and in May 1940 the defendant Frank wrote in his diary of 'taking advantage of the focussing of world interest on the Western Front, by wholesale liquidation of thousands of Poles, first leading representatives of the Polish intelligentsia.' "
This aim was openly admitted by the highest SS dignitaries.
Himmler gave vivid expression to this viewpoint in a meeting of SS major generals at Poznan, in October 1943.
"What happens to a Russian, to a Czech does not interest me in the slightest. What the nations can offer in the way of good blood of our type, we will take, if necessary by kidnaping their children and raising them here with us. Whether nations live in prosperity or starve to death interests me only so far as as we need them as slaves for our Kultur; otherwise, it is of no interest to me. Whether 10,000 Russian females fall down from exhaustion while digging an antitank ditch interests me only insofar as the antitank ditch for Germany is finished. We shall never be rough and heartless when it is not necessary, that is clear. We Germans who are the only people in the world who have a decent attitude towards animals will also assume a decent attitude towards these human animals. But it is a crime against our own blood to worry about them and give them ideals, thus causing our sons and grandsons to have a more difficult time with them. When somebody comes to me and says, 'I cannot dig the antitank ditch with women and children, it is inhuman, for it would kill them', then I have to say, 'You are a murderer of your own blood because, if the antitank ditch is not dug, German soldiers will die, and they are the sons of German mothers. They are our own blood. That is what I want to instill into this SS and what I believe have instilled into them as one of the most sacred laws of the future. Our concern, our duty is our people and our blood. It is for them that we must provide and plan, work and fight, nothing else. We can be indifferent to everything else. I wish the SS to adopt this attitude to the problem of all foreign non- Germanic peoples, especially Russians. All else is vain, fraud against our own nation and an obstacle to the early winning of the war." (1919-PS *)
Hans Frank, the Governor General of occupied Poland, addressed a cabinet session in the government building at Krakow on 16 December 1941 and advocated the following solution of the Jewish problem:
Gentlemen, I must ask you to rid yourself of all feeling of pity. We must annihilate the Jews, wherever we find them and wherever it is possible, in order to maintain there the structure of the Reich as a whole."
The same Hans Frank summarized in his diary of 1944 the Nazi policy as follows: "The Jews are a race which has to be eliminated. Wherever we catch one it is his end." And earlier, speaking of his function as Governor General of Poland, he confided to his diary this sentiment: "Of course, I cannot eliminate all lice and Jews in only a year's time."
When von dem Bach-Zelewski, who testified before the International Military Tribunal, (1) was asked how the defendant Ohlendorf could admit the murder of 90,000 people, he replied -
"I am of the opinion that when, for years, for decades, the doctrine is preached that the Slav race is an inferior race, and Jews not even human, then such an outcome is inevitable."
No one could have defined better the ideology which prompted Nazi Germany to embark on the program of extermination. The prophecy of Hitler, made in his speech to the German Reichstag on 30 January 1939, that the result of war would be the annihilation of the Jewish race in Europe, came very near fulfillment. It is estimated that, of the 9,600,000 Jews who lived in Nazi dominated countries, 6,000,000 have perished in the gas chambers of the concentration camps or were murdered by the Einsatzgruppen. As the International Military Tribunal found in its judgment -
"Adolf Eichmann, who had been put in charge of this program by Hitler, has estimated that the policy pursued resulted in the killing of 6 million Jews, of which 4 million were killed in the extermination institutions."
The unholy trinity, the SS, the Gestapo, and the SD, accomplished this work with hideous and ruthless efficiency. It was Himmler who boasted proudly in his speech to the highest SS leaders, in 1943,
"Only the SS was equal to the task of exterminating the Jewish people. Others talked about it but had too many reservations * * *. To have completed such a mission is an unwritten page of honor in the history of the SS."
At least one of the chief advocates of the master race theory, Hans Frank, has publicly regretted his advocacy -
"We have fought against Jewry, we have fought against it for years, and we have allowed ourselves to make utterances - and my own diary has become a witness against me in this connection - utterances which are terrible* * *. A thousand years will pass, and this guilt of Germany will still not be erased."
During the last years the world has learned much about this " state within the state" which was formed by the SS. Much about this new aristocracy of "blood and elite" need not be repeated here. The Einsatzgruppen were part of the SS. They were created at the direction of Hitler and Himmler by Heydrich the Chief of the Security Police and SD, who was Himmler's right hand man, and operated under the direct control of the RSHA, the Reich Security Main Office, one of the most important of the twelve main offices of the SS. The Einsatzgruppen were formed in the spring of 1941. The sequence of events was as follows:
In anticipation of the assault on Russia, Hitler issued an order directing that the Security Police and the Security Service be called in to assist the army in breaking every means of resistance behind the fighting front. Thereafter, the Quartermaster General of the Army, General Wagner, representing Keitel, the Chief of the Supreme Command of the Wehrmacht, met Heydrich, Chief of the Security Police and Security Service. These two men reached an agreement concerning the activation, commitment, command, and jurisdiction of units of the Security Police and SD within the framework of the army. The Einsatzgruppen were to function in the rear operational areas in administrative subordination to the field armies, in order to carry out these tasks as directed by Heydrich and Himmler.
The reason why decisions of the highest military and administrative level were necessary for the creation of such small units is shown by the character of their assignment. These "security measures" were defined according to the principles of the Security Police and the SD, the principles of Heydrich, the principles of unmitigated terror and murder. The actions of the Einsatzgruppen in the conquered territories will demonstrate the purpose for which they were organized.
In the beginning four such Einsatzgruppen were formed, each of which was attached to an army group. Einsatzgruppe A was attached to Army Group North, Einsatzgruppe B was attached to Army Group Center, Einsatzgruppe C was attached to Army Group South and Einsatzgruppe D was assigned to the llth German Army which was to be nucleus for the formation of a fourth army group after it reached the Caucasus. The function of the Einsatzgruppen was here to insure the political security of the conquered territories both in the operational areas of the Wehrmacht and the rear areas which were not directly under civil administration. These two missions were made known at a mass meeting of the Einsatzgruppen personnel before the attack on Russia. At this meeting Heydrich, Chief of the SIPO and SD, and Streckenbach, chief of the personnel office of the Reich Security Main Office (RSHA) flatly stated that the task of the Einsatzgruppen would be accomplished by exterminating the opposition to National Socialism.
Nor were the commanders of the armed forces ignorant of the task of the Einsatzgruppen. Hitler himself instructed them that it was the mission of these special task forces to exterminate all Jews and political commissars in their assigned territories. The Einsatzgruppen were dependent upon the army commander for their billets, food, and transport; relations between armed forces and the Security Police and SD were close and almost cordial, and the commanders of the Einsatzgruppen reported again and again that the understanding of the army commanders for the task of the Einsatzgruppen made their operations considerably easier.
The normal strength of the Einsatzgruppen was from 600 to 800 men. The officer strength of the Einsatzgruppen was drawn from the SD, SS, Criminal Police (Kripo) and Gestapo. The enlisted forces were composed of the Waffen SS, the regular police, the Gestapo, and locally-recruited police. When occasion demanded, the Wehrmacht commanders would bolster the strength of the Einsatzgruppen with contingents of their own. The Einsatzgruppen were divided into Einsatzkommandos and Sonderkornmandos. These subunits differed only in name. When a rnission called for a very small task force, the Einsatz or Sonderkommandos was capable of further subdivision, called Teilkommando or splinter group.
The activity of the Einsatzgruppen was not limited to the civilian population alone, but reached into prisoner-of-war camps in total disregard of the rules of warfare. Soldiers were screened by Einsatzkommandos personnel in order to find and kill Jews and political commissars. Shortly before the campaign against Russia, Hitler gave an explanation of the ideological background of this fight to the commanders in chief and the highest officers of the three branches of the armed forces. This war, he said, would not be an ordinary war, but a clash of conflicting ideologies. Special measures would have to be taken against political functionaries and commissars of the Soviet Army. Political activities and commissars were not to be treated as prisoners of war, but were to be segregated and turned over to special detachments of the SD which were to accompany the German troops. The carrying-out of this Hitler directive was described by the International Military Tribunal in its judgment that-
"* * * There existed in the prisoner-of-war camps on the eastern front small screening teams (Einsatzkommandos), headed by lower ranking members of the Secret Police (Gestapo). These teams were assigned to the camp commanders and had the job of segregating the prisoners of war who were candidates for execution according to the orders that had been given, and to report them to the office of the Secret Police." *
When a general expressed concern that the morale of the average German soldier might suffer from the sight of these executions, the Chief of the Office IV of the RSHA assured him cynically that, in the future, this "special treatment" - the euphemistic expression for killing - would take place outside the camps so that the troops would not see them.
Detailed instructions were put into force that no political functionary, commissar, higher-ranking civil servant, leading personality of the economical field, member of the intelligentsia, or Jew, might escape extermination. These purposes were realized in actions we shall now describe....
Theory of Individual Responsibilty
We have briefly outlined why this case is being tried, how the Einsatzgruppen were organized, and their ideological foundation in Nazi Germany. We have suggested that the chief significance of this case lies in the protection by law of fundamental human rights and we have described how those rights were systematically violated. We also seek here to hold a handful of men responsible for crimes they alone could not possibly have committed. What are the standards by which we test their guilt?
Many of the defendants ordered and participated in the mass executions committed by their units. In those cases they are clearly responsible under standards known and accepted by all. In other cases it may not be shown that these defendants specifically ordered or directly participated in the crimes of their Kommandos. Here guilt is just as great.
Every man in the dock had full knowledge of the purpose of his organization. We cannot believe that any member of a group engaged in murders by the thousands could fail to know its criminal intent. We do not undertake the burden of showing any defendant's foreknowledge of the precise contours of the crime committed. Nowhere on earth does the law impose such a burden. Each defendant held a position of responsibility or command in an extermination unit. By virtue of his post he had the power to order executions. It is not conceivable that these grave deeds were independent acts of misguided subordinates. They were bound by law, if not by conscience, to refrain from such activity. That they knew, no doubt, as well as all men know it. They will not here deny their knowledge of the Lord's Commandment.
As military commanders, these men were bound by laws well known to all who wear the soldier's uniform. Laws which impose on him who takes command the duty to prevent, within his power, crimes by these in his control. These laws, declaratory of common morality, rest lightly on the honorable soldier. He feels no restraint in the rule that old men, women, and children shall be protected as far as military necessity permits. It is this duty, legal and moral, to prevent, to mitigate, and to disavow the slaughter of innocents, that all the defendants flagrantly violated. The purpose of the laws of war to protect civilian populations and prisoners would largely be defeated if a commander could with impunity neglect to take reasonable measures for their protection. This was declared by the Supreme Court of the United States (1) and relied upon by Military Tribunal I in the case against German doctors.
We shall show in this case that the rank and position of these defendants carried with it the power and duty to control their subordinates. This power, coupled with the knowledge of intended crime and the subsequent commission of crime during their time of command imposes clear criminal responsibility.
It is not infrequent in the legend of these crimes that some word of explanation edges in as if to salve the conscience of the executioner. "So and so many persons were shot," the report will read "because they were too old and infirm to work," "this or that ghetto was liquidated, to prevent an epidemic," "so many children were shot, because they were mentally ill."
Such lean tokens cannot exculpate these wrongs. The Euthanasia Doctrine based on a Hitler order scorning pre-existing law spurred the annihilation program. Military Tribunal I, in discussing euthanasia laws, stated -
"* * * The Family of Nations is not obligated to give recognition to such legislation when it manifestly gives legality to plain murder and torture of defenseless and powerless human beings of other nations."
Murder cannot be disguised as mercy.
Law No. 10 specifically declares that certain acts are crimes against humanity "whether or not in violation of the internal law of the country where perpetrated." The defendants here can seek no refuge in the law.
The fact that any person acted on the order of his government or of a superior does not free him from responsibility for crime.
It may be considered in mitigation. This is the law we follow here, and is no innovation to the men we charge. Even the German Military Code (1) provides that-
Was it not within the knowledge of the accused that the mass murder of helpless people constituted crime? Moral teachings have not so decayed that reasonable men could think these wrongs were right.
The judgment of the International Military Tribunal declares that 2 million Jews were murdered by the Einsatzgruppen and other units of the Security Police. (2) The defendants in the dock were the cruel executioners, whose terror wrote the blackest page in human history. Death was their tool and life their toy. If these men be immune, then law has lost its meaning and man must live in fear.