SS-Major Fendler studied dentistry from 1932 to 1934 and served in the Wehrmacht from 1934 to 1936. He then joined the SD.
Fendler served in Sonderkommando 4b, Einsatzgruppe C, from May 1941 to October 2, 1941. During this time, the Sonderkommando was engaged, as all other kommandos of the Einsatzgruppe, in the execution of the Fuehrer-Order. The reports show that, during the time that Fendler was with the unit in question, many executions occurred:
Report No. 24 - IIA/8l, NO-2938
Report No. 19 - IIC/49, NO-2934
Report No. 111- IIA/44, N0-3155
Fendler denies participation in these executions, but he goes further and asserts complete ignorance of them. In fact, according to his story, he did not learn of the Fuehrer execution order until after he had severed all connections with the Sonderkommando.
Fendler submits that his work with the kommando was restricted to Department III and that he was concerned only with the gathering of information. Defendant after defendant has asserted that, in doing Department lll work, he was utterly ignorant of the functions performed by the other departments, but one cannot help but observe that Department lll did not operate within the confines of a high stone wall separating it from the rest of the kommando. An einsatzkommando in the field usually consisted of from 80 to 100 men and 7 to 10 officers. Sonderkommando 4b had a staff of 7 officers. Fendler lived, ate and associated with these officers. He was Department III, some other officer was Department IV, and still another officer was Department V or VI, and so on. It is absurd to assume that Fendler could not know what these other officers were doing, especially in view of the fact that Fendler was the second senior officer in the kommando.
It is not contended by the Prosecution, nor does the evidence show that Fendler, himself, ever conducted an execution, but it is maintained that he was part of an organization committed to an
extermination program. Fendler asserts that Department IV alone conducted the executions and, therefore, within the water-tight compartment of his own Department III, he did not know what was happening in Department IV.
The International Military Tribunal, in considering the relationship between the SD (which is Department III) and the Gestapo (which is Department IV), said:
"0ne of the principal functions of the local SD units was to serve as the Intelligence Agency for the local Gestapo units. In the occupied territories, the formal relationship between local units of the Gestapo, Criminal Police and SD was slightly closer."
Fendler asserted over and over that he only learned by accident of executions and that, generally, he did not know what was taking place. Fendler's assertion runs counter to normal every day experience because it is simply incredible that a high-ranking officer in a unit would not know of the principal occupation of that unit.
The defendant stated that he learned of the extermination order only after he had left the kommando and was at Kiev on his way home. He was asked:
"So that you had to travel five hundred kilometers and two days' distance from the very heart of this execution district before you learned that,executions were being performed upon Jews because they were Jews, is that right?"
And his answer was "yes".
The defendant explained that one of his principal occupations in the kommando was making out morale reports on the population. He was asked whether, when he learned of the pogrom which had occurred in Tarnopol, where about 600 people were murdered, he included this fact in his report. He replied in the negative. He was asked why he would not include so momentous an event as the murdering of 600 people in the streets in a report which he was compiling on the morale, of the population, and he replied he did not have a chance:
"Q. We'll, how much time would it take in an SD report which you were compelled to make and which it is your job to make, to say that there were excesses in Tarnopol to the extent that 600 Jews were murdered,--- or you didn't want to say murdered,--- were killed by the population. How much time would it take to include that, with your fingers on the typewriter, into a report? How much time would it take to say that?
A. Two seconds.
Q. Well then, why didn't you have the two seconds to write that?
A. Because I made no report.
Q. Why didn't you make a report?
A. Because I was given the order by the kommando leader to evaluate this material."
Fendler denies that he ever functioned as deputy to the kommando leader and stated that, when he acted as an advance kommando leader, he occupied himself only with the obtaining of intelligence files left behind by the Bolshevists. But, in evaluating these reports, it is inevitable that he would need to tell someone what he found. In fact, he did admit that this information usually was "utilized for individual reports". The Army was also informed "in a written form or orally".
In order to prove that the work of every officer was specialized and thus one would not know what the others were doing, the defendant stated that his unit never divided its forces. Thus, one officer would not need to do the job of others. However, since this would establish that, by sheer proximity, the officers could not help but know each other's business, the defendant later stated that the unit was not always together because of the distance it had to travel.
The defendant knew that executions were taking place. He admitted that the procedure which determined the so-called guilt of a person which resulted in his being condemned to death was "too summary". But, there is no evidence, that he ever did anything about it. As the second highest ranking officer in the kommando, his views could have been heard in complaint or protest against
what he now says was a too summary procedure, but he chose to let the injustice go, uncorrected. He was asked:
"Do I understand you correctly that you were of the opinion that there was an insufficient safeguard for the suspected person, as there was no trial, that his rights as a defendant were not sufficiently safeguarded? Is that what you want to say, that that was your opinion; was that your opinion?"
And he replied:
"That was my theoretical opinion, Mr. Prosecutor."
The defendant is presumed to be innocent until proved guilty, and the Tribunal is not prepared to say that the evidence in this case rises to that degree of certainty which could conclusively establish that the defendant was guilty of planning the killing of people or ordering their death. It does, however, show that the defendant took a consenting part in the criminal activities in the sense intended in Control Council Law No.10, although tbere are some mitigating circumstances. From the evidence in the case the Tribunal finds the defendant, guilty under Counts I and II of the lndictment.
The Tribunal finds the defendant was a member of the criminal organizations SS and SD under the conditions defined by the Judginent of the International Military Tribunal and is, therefore, guilty under Count III of the Indictment.