arguments on self defense, necessity and national emergency, confirming and emphasizing what was said at great length by Dr. Aschenauer on these subjects. In the latter part of the plea, Defense Counsel insisted that his client in no way participated in the execution of the Fuehrer-Order. If, as a matter of fact, the defendant committed or approved of no act which could be interpreted either as a War Crime or a Crime against Humanity, the argument of self defense and necessity is entirely superfluous.
The record clearly demonstrates, however, that as Chief of Einsatzgruppe A the defendant was aware of the criminal purpose to which that organization was put, and, as its commander cannot escape responsibility for its acts. Jost outlined his activities outside of Germany in the following language:
"During my activity as Chief of the Einsatzgruppe A, I was also Commander-in-Chief of the Security Police and SD in Eastland (BdS Ostland). Headquarters for the Einsatzguppe A was located in Krasnogwardeisk, whilst headquarters for the Commander-in-Chief for the Security Police and SD Eastland was located in Riga. On the whole, the duties of a Commander-in-Chief of the Security Police and SD were the same as those of a Chief of an Einsatzgruppe, and the duties of a Commander of the Security Police and SD (KdS) the same as those of a Chief of Sonderkommando or Einsatzkommando, respectively."
During the time the territory under his jurisdiction was subject to Army control, Jost as Chief of Einsatzgruppe A co-operated with the army command. When the territory came under civilian administration, he, as commander-in-chief of Security Police and SD received his orders from the Higher SS and Police Leader or SS and Police Leader. Under this double designation he was responsible for all operations conducted in his territory.
Report No. 195, dated April 24, 1942, reporting on activities within the area under the command of Einsatzgruppe A, states:
"Within the period of the report a total of 1,272 persons executed, 983 of them Jews, who had infectiousdiseases or were so old and infirm that they could not be any more used for work, 71 gypsies, 204 Communists and 14 more Jews who had been guilty of different offenses and crimes"
The Prosecution charges the defendant with responsibility for these murders. The item itself does not carry the exact date of its happening, but the latest date revealed in the entire document is March 26. Thus the execution of the 1,273 persons mentioned therein could not have occurred on a date subsequent to March 26. The defendant testified that he was in Smolensk when, on March 24 or 25, he received his orders to take over the command of Einsatzgruppe A and that he did not arrive in Riga, headquarters of the Einsatzgruppe, until March 28 and 29.
The record shows that Einsatzgruppe A had accomplished some hundred thousand murders prior to March 29 and, as late as March 26, as indicated by the report above-mentioned, was still killing Jews. It would be extraordinary that it should suddenly cease this slaughter for no given reason and with the Fuehrer-Order still in effect, three days before Jost arrived.
The Prosecution argues that it would not take an officer of Jost's rank (Major General of Police) four days to travel the 400 miles between Smolensk and Riga. But whether Jost arrived the day before or the day after is not controlling in the matter of responsibility for the program involved. The Fuehrer-Order was in effect prior to Jost's arrival at Riga and he did not revoke it when he took over the Einsatzgruppe. The defendant does state then when in May 1942 he received an order from Heydrich to surrender Jews under 16 and over 32 for liquidation he placed the order in his safe and declined to transmit it.
Report No. 193 dated April 17, 1942, reports an execution in Kauen, as of April 7, 1942, of 22 persons "among them 14 Jews who had spread communist propaganda". The defendant was asked on the witness stand:
"Do you regard it proper, militarily proper, to shoot fourteen people, or only one person for that matter, because he spread Communist propaganda?"
and he replied:
"According to my orders these measures had to be carried out. In that far it was correct and justified."
Defence council in arguing this phase of the case said that the victims had indulged in Communist propaganda "up to the last moment". But there is nothing in International Law which justifies or legalizes the sentence of death for political opinion or propaganda.
At the trial the defendant testified that he did not remember any reports about "mass executions" during his time. If there had been no such executions during his incumbency it is reasonable to suppose that Jost would have emphatically so declared. It cannot be assumed that so grave and solemn an event as mass execution could fall into the realm of the forgettable. Thus the only possible conclusion is that here the defendant was equivocating.
On June 15, 1942, at a time when Jost was admittedly in charge of the area, one of his subordinates, SS Hauptsturmfuehrer Truebe, wrote to the RSHA, requesting shipment of a gas van and gas hoses for three gas vans on hand. Jost denied any knowledge of this letter but admitted that the subordinate in question had the authority to order equipment. It is not reasonable to suppose that the ordering of such extraordinary equipment would not come to the attention of the leader of the organization and the fact that the ordered gas van was to go to White Ruthenia (where he was also in command) does not absolve the defendant from responsibility.
The defendant, as well as all other defendants in this case, is not charged alone with the crime of murder. The indictment lists various offenses, including enslavement, imprisonment, and other inhumane acts against civilian populations. Thus the defendant cannot escape resposibility for a consenting part at least in the slave labor program instituted by Sauckel in his territory. Report No. 193, dated April 17, 1942 carried this item:
"On orders by the new Plenipotentiary for Mobilization of Labor, Gauleiter Sauckel, the Commissariate General 'White Ruthenia' has to muster about 100,000 workers. But until now only 17,000 have been shipped. In order to make available the manpower requested, the principle of voluntary recruiting is abandoned and compulsory measures will be adopted."
As already mentioned, Jost claims that he opposed the Heydrich order of May 19, 1942. He testified that he visited Heydrich and Himmler and urged his recall and even spoke to Rosenberg against the extermination program in principle. He asserted that later he was recalled and subjected to disciplinary action. Although he retained his general officer rank in the police he was sent to the front, as a sergeant in the Waffen SS. The credibility of this story depends entirely on Jost, since all the other alleged conferees are dead, and there were apparently no surviving witnesses that he could call to confirm his conversations.
Although it is possible that his illness at the time had something to do with the reversal in his military fortunes, it can be believed that illness alone could not have brought about such a drastic change in his situation. Nonetheless the evidence is irrefutable that he was a principal in and an accessory to the extermination program in his territory. He may have, after participation in this enterprise, at last relented, and this is to his credit, but this cannot wipe out the criminality which preceded his withdrawal from the field.
The Tribunal finds from all the evidence in the case that the defendant is guilty under Counts I and II of the Indictment.
The Tribunal also finds that the defendant was a member of the criminal organizations SS and SD under the conditions defined by the Judgment of the International Military Tribunal and is, therefore, guilty under Count III of the indictment.
Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 133 - 137 (original mimeographed copy)