"The Einsatzgruppen Case"


Case No. 9

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.

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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. (2)

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." (3)

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.

1 Application of Yamashita, 66 Supreme Court, pp. 840-347.

2 Judgment of Military Tribunal in Case No. 1, United States vs. Karl Brandt et al. See Vol. 11, pp. 171 to 300.

3 United States vs. Karl Brandt, at al. See vol 11. p. 198.

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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-

"If the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefore. However, the obeying subordinates will share the punishment of the participant-

(1) If he has exceeded the order given to him, or
(2) It was within his knowledge that the order of his superior officer concerned an act by which it was intended to commit a civil or military crime or transgression."

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.

1 Article 47, German Military Code. Reichsgesetzblatt (Reich Law Gazette) 1926, No. 87, 278.

2 Trial of the Major War Criminals, vol. 1. p. 292, Nuremberg, 1947.

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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. 51 - 53

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Electric Zen
Ken Lewis
September 27, 1998
Rev. 1.0