"The Einsatzgruppen Case"


Case No. 9

The Nature of the Charges - Count One

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

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

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

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

*Report of the VIU Conference for the Unification of Penal Law. 11 July 1947.

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

Control Council Law No. 10 clearly lists war crimes as offenses constituting violations of the laws or customs of war, and crimes against humanity as a distinct offense unrelated to war. (1) The London Charter restricted the jurisdiction of the Interna- tional Military Tribunal to crimes against humanity connected with crimes against peace or war crimes.(2) This restriction does not appear in the Control Council enactment, which recognizes that crimes against humanity are, in international law, completely independent of either crimes against peace or war crimes. To deny this independence would make the change devoid of meaning.(3)

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

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

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

In dealings between nations these principles were well-known,

1 Article 11, I (b) and (c). See p. XIX.

2 Charter of the INT, Article 6 (a). See P. XIV.

3 Opening statement by the prosecution In Case No. 5, U. S. vs. Friedrich Flick, et al., contains a detailed exposition of the distinction between war crimes and crimes against humanity. See vol. VI.

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and Germany itself had been their champion. In the Berlin Treaty of 1878, Germany declared that religious differences could not be used to exclude a person from his civil or political rights. Following the First World War, in the German-Polish Convention of 1922, Germany obtained the legal protection for her ethnic minorities throughout Poland. The German Government bound itself under German Law to guarantee the complete protection of the life and liberties of all inhabitants, without discrimination as to their birth, nationality, language, race or religion.(1) Germany agreed that these were obligations of international concern (2) and were basic laws which could not be superseded by any official, order, or any other law.(3) In the Permanent Court of International Justice, Germany obtained recognition of the guarantees by international law of her minority rights in Poland.(4) Indeed, it was under the guise of protecting the rights of minorities that the Nazis invaded Czechoslovakia. So mindful of their own rights; so callous of the rights of others.

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

1 Reichzgesetzblatt (OMCIRI LSW Gazette), Part 11, 1922, No. 10, dated 15 May 1922, Articles 66, 67, 68, 71

2 Ibid., Article 72.

3 Ibid., Chapter 1, i.

4 0pinion No. 6 and No. 7. Permanent Court of International Justice, series A. No. 6. pp. 4-41, dated 25 Auxwt 1925; 13cries A. No. 7. PP. 4 - 107. dated 26 May 1926.

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Trials of War Criminals Before the Nurenberg Military Tribunals Under Control Council Law No. 10, Volume IV, Washington, D.C.: U.S. Government Printing Office. pp. 48 - 50

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Electric Zen
Ken Lewis
September 27, 1998
Rev. 1.0