Superior Orders Defense Must Establish Ignorance of Illegality

To plead Superior Orders one must show an excusable ignorance of their illegality. The sailor who voluntarily ships on a pirate craft must not be heard to answer that he was ignorant of the probability he would be called upon to help in the robbing and sinking of other vessels. He who willingly joins an illegal enterprise is charged with the natural development of that unlawful undertaking. What SS man could say that he was unaware of the attitude of Hitler toward Jewry?

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As early as February 24, 1920 the National Socialist Party announced in its 25 point program, which was never changed, its opposition to Jews and declared that a Jew could never be an equal citizen. Mein Kampf was dedicated to what may be called the "Master Race" theory, the doctrine of Aryan superiority over all other races. When the Nazis seized power in 1933, persecution of the Jews became an official state policy. Then in September 1935 came the well-known Nuremberg Laws which among other things deprived the Jews of German citizenship.

Mein Kampf was not a private publication. Its brazen voice rang throughout Germany. One passage was proclaimed over and over:

"The soil on which we now live was not a gift bestowed by Heaven on our forefathers. They had to conquer it by risking their lives. So also in the future, our people will not obtain territory, and therewith the means of existence, as a favor from any people, but will have to win it by the power of a triumphant sword."

The Nazi party dinned into the ears of the world its odium for the Jews. "Der Stuermer" and other publications spread the verbal poison of race hatred. Nazi leaders everywhere vilified the Jews, holding them up to public ridicule and contempt. In November 1938 an SS inspired and organized hoodlumism fell upon the Jews of Germany; synagogues were destroyed, prominent Jews were arrested and imprisoned, a collective fine of one billion marks was imposed, ghettos were established, and now the Jews were compelled on orders of the Security Police to wear a yellow star on their breast and back.

Did the defendants not know of these things? Could they express surprise when, after this unbroken and mounting program of violence, plans were formulated for the "final solution of the Jewish problem?"

Some of the defendants may say they never knew of the Nazi Party extermination program or, if they did, they were not in accord with the sentiments therein expressed. But again, a man who sails under the flag of skull and cross-bones cannot say that he never

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expected to fire a cannon against a merchantman. When Bach Zelewski, SS General and many years member of the Party, was asked to explain the phenomenon of the Einsatzgruppen killings, he replied:

"I am of the opinion that when, for years, decades, the doctrine is preached that the Slav race is an inferior race, and Jews not even human, then such an outcome is inevitable."

The argument has, however, been advanced that the Fuehrer-Order was not criminal. Although this proposition is at first blush out of harmony to all common sense, contrary to natural human reactions and out of harmony with the rudimentary law of cause and effect, yet it has been presented seriously by the defendants and in fact constitutes the major item of defense. Therefore, it cannot simply be dismissed as intolerable; reasons must be advanced as to why it is intolerable.

Let us suppose that the Fuehrer-Order had proclaimed the killing of all people, regardless of age, sex or position. So long as the iris of the eyes responded to those light rays in the spectrum which make up grey, the possessor of such eyes was destined for evil days. Character, occupation and health could not influence nor could religion, politics and nationality alter the predetermined doom. The farmer at his plow, the teacher at her desk, the doctor at the bedside, the preacher in his pulpit, the old woman at her knitting, the children playing in the yard, the cooing infant at the mother's breast -- would all be condemned to death, if they saw the wondering world through the tell-tale grey eyes.

Let us glance at the unfoldment of such a program and look in on a family, whose members, because of that unfathomable selection of life's chemicals and inscrutable mixing in the mystic alembic of time, all have grey eyes. Suddenly comes a thunderous knocking and the door bursts open. Steel-helmeted troopers storm in and with automatic guns and drawn pistol order the dismayed occupants into the street.

We hear the screams of the children, we see the terror in the

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faces of mother and sister, the biting of lips of the helpless father and brother, the wild tramping of the invaders' boots through the house, the overturning of furniture, the smashing into cupboards, attics, wardrobes seeking out the hidden, horrified Grey-Eyed. The tearful farewell to home, the piling into the waiting truck of the pitiful family possessions, the bewildered mounting of the doomed Grey-Eyes. The truck rumbles forward, stops to pick up other Grey-Eyes and still more Grey-Eyes in the market square, at the corner store, in the parish church.

Then the wild careening ride into the woods where other villagers are waiting chalk-faced, mute, staring at each other. The unloading of the truck, the guttural command to line up with the others. Then the red-mouthed machine rifles speaking their leaden sentences from left to right and from right to left. The villagers falling, some cut in two, others with blood flowing from their mouths and eyes, those grey eyes, pleading for understanding, for an explanation as to why? Why? Others only wounded but piled into a ditch already dug behind them. The shooting party rides away, piteous hands uplift from the uncovered grave, we hear a moaning which, at times, decreases to a murmur, then mounts to a wail, then ceases altogether.

Of course it is all fantastic and incredible, but no more fantastic and incredible than what has happened innumerable times in this very case. If one substitutes the word Jew for Grey-Eyed, the analogy is unassailable.

It is to be presumed that, if the defendants had been suddenly ordered to kill the grey-eyed population, they would have balked and found no difficulty in branding such an act as a legal and moral crime. If, however, fifteen years before, the Nazi Party program had denounced all grey-eyed people and since then the defendants had listened to Hitler vituperating against the Grey-Eyes, if they had seen shops smashed and houses destroyed because Grey-Eyes had worked and lived there; if they had learned of Himmler's ordering all

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Grey-Eyes into concentration camps, and then had heard speeches in Pretzsch wherein the mighty chieftains of the SS had declared that all Grey-Eyes were a menace to Germany -- if this had happened, can we be so certain that the defendants would not have carried out a Fuehrer-Order against grey-eyed people? And in that event, would there not have been the same defense of Superior Orders?

If now, from the vantage point of observation of a thing which did not come to pass, the defendants can denounce, as we assume they would, this hypothetical massacre, how can they less denounce a slaughter which did occur and under circumstances no less harrowing than the one pictured only for the purpose of illustration?

But throughout the trial it has been answered, in effect, that it was entirely different with the Jews. They were bearers of Bolshevism. If that was their guilt, then the fact that they were Jews was only incidental. They were being exterminated not because of Judaism but because of Bolshevism. If by that argument they mean that a Jew was to be executed only because he was a Bolshevik, why was it to be assumed that a Russian Jew was any more bolshevistic than a Russian Russian? Why should Alfred Rosenberg, chief Nazi philosopher, be less inclined biologically to Communism than his obscure Jewish namesake and neighbor? What saved Benjamin Disraeli, leader of the Conservative Party and several times prime minister of Great Britain, from being a Bolshevist? And had he lived in 1941, would Hitler have declared him a carrier of Bolshevism?

According to Nazi ideology the Jew by his very nature was simply destined to be Bolshevistic, but it is a demonstrable truism that, if the einsatzkommandos themselves had adopted Jewish babies, those babies would have grown up to be staunch SS men. In point of fact, during the war, thousands of Czech, Polish, Russian, and Yugoslav children were taken into German to be reared as Germans. No one knows how many Jewish offspring were included in these carloads of kidnapped children because it was seriously assumed that so long as they were blonds they could not belong to the hated race.

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During the trial there was introduced in evidence a letter written by one of the defendants in which he quoted from Heydrich:

"Many of the Jews listed in your register are already known for continually trying to deny that they belong to the Jewish race by all possible and impossible reasons. It is, on the whole, in the nature of the matter that half-breeds of the first degree in particular try at every opportunity to deny that they are Jews.

You will agree that in the third year of the war, there are matters of more importance for the war effort, and for the Security Police and the Security Service as well, than worrying about the wailing of Jews, making tedious investigations and preventing so may of my co-workers from other and much more important tasks. If I started scrutinizing your list at all, I only did so in order to refute such attacks by documents once and for all.

I feel sorry to have to write such a justification six-and-a-half years after the Nuremberg Laws were issued."

The defendant noted in his letter his enthusiastic accord with the sentiments expressed by Heydrich and added on his own that consideration for the Jews was "softness and humanitarian day-dreaming." He also declared that it was unthinkable that a German should listen to Mendelssohn's music, and, to hearken to Offenbach's "Tales of Hoffman," simply revealed ignorance of National Socialist ideals. Yet, he saw nothing unidealistic about invading the office of his superior, the General Commissioner of White Ruthenia, kidnapping seventy Jews employed there and spiriting them away for cold execution. And the General Commissioner for White Ruthenia, trained in the same school of Nazi idealism, entered a complaint against the defendants action, not because seventy innocent human beings had been killed but because a subordinate had dared to come into his office and shoot his Jews without telling him about it.

The defendant was also annoyed that anyone should have questioned the propriety and correctness of removing gold fillings from the teeth of the Jews designated for killing.

The Tribunal is devoting much time and space to expounding the obvious, but perhaps it is no so obvious. Otherwise the

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arguments by and on behalf of the defendants might not have been presented with such insistence. Furthermore, this is the time and place to settle definitively, insofar as it is part of the issue in this trial, the business of the so-called Jewish problem.

A problem presupposes a situation with advantages and disadvantages to be considered on either side. But what in Nazi Germany was so delicately called the "Jewish problem," was a program, that is, an anti-Jewish program of oppression leading finally to extermination. The so-called Jewish problem was not a problem but a fixation based upon the doctrine that a self-styled "master-race" may exterminate a race which it considers inferior. Characterizing the same proposition as the "Jewish menace" is equally devoid of sense. In fact, if it were not so tragic, the National Socialistic attitude toward the Jews could only be considered nonsensical.

We will recall how the einsatz units treated the Krimtschaks in the Crimea. In the same area they came across a sect known as Karaimians. The Karaimians resembled the Krimtschaks in that they shared the same Jewish religion. However, the ethnic experts in Berlin after some kind of study, concluded that the Karaimians had no Jewish blood in their veins and were, therefore, exempt from the extermination order. Thus, although the Karaimians had Jewish religion in their souls, they did not have that kind of corpuscles in which the seeds of Bolshevism ride. Hence they had the right to live. If one can picture an einsatz unit rounding up the worshippers in a synagogue and distinguishing the Karaimians from the Krimtschaks, releasing the former and killing the latter, one is privileged to decide whether the Nazi attitude toward Jewry was not something which could well fall into the category of nonsense, that is, tragic nonsense.

It was all a matter of blood and nothing could save the person with Hebrew arteries. Although any other person could change his religion, politics, allegiance, nationality, yet, according to the

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National Socialist ideology, there was nothing the Jew could do. It was a matter of blood, but no one has testified as to the omniscient wisdom which counted and evaluated the offending corpuscles.

One thing can be said about the Fuehrer-Order. It was specific, it was unambiguous. All the Jew were to be shot. And yet, despite the unambiguity of this order, in spite of the unappealable and infallible pronunciamento that Jews were absolutely outside the pale, defendant after defendant related his great consideration for the Jew. Scores of affidavits were submitted, in behalf of nearly all the accused, demonstrating their generous conduct towards some individual Jews in Germany. One of the defendants related, in a pre-trial interrogation, how he even lived with a Jewish women. He wished to prove by this that he was entirely devoid of prejudice.

But, if it were true that the defendants regarded Jews as equals in Germany, why did they consider them sub-human in Russia? If they did not recognize them as a potential danger in Germany, why should they regard them as a threat in the Crimea 2,000 miles away? It is not too much to say that most of the Jews did not know of Hitler and his doctrines until the Einsatzgruppen arrived to kill them.

Although forming no part of the charges in the indictment, the systematic attempts to destroy the graves of the slain as described in official German documents are interesting in that they shed some light on the mental attitudes of the executioners. Did they regard the executions as culpable acts, ocular evidence of which should be destroyed? The defendant Blobel in an affidavit, signed June 18, 1947, stated that in June 1942 he was entrusted by Gruppenfuehrer Mueller with the task of removing the traces of the executions carried out by the Einsatzgruppen in the East. He leaves nothing to the imagination:

"I myself witnessed the burning of corpses in a mass grave near Kiev, during my visit in August. This grave was about 55 m long, 2 m wide, and 2-1/2 deep. When the cover had

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been lifted, the bodies were covered with fuel and set on fire. It took about two days for the grave to burn down. I myself saw that the grave became red-hot right down to the ground. Afterwards the grave was filled in, and thus all traces were as good as eliminated.

Owing to the approach of the front, it was not possible to destroy the mass graves further to the South and the East, resulting from the executions of the Einsatzgruppen."

So intent was Blobel, evidently in obedience to orders, to wipe out the incriminating evidence of the killings, that he even tried to destroy the corpses by means of dynamite. Rudolf Hoess, commandant of the Auschwitz concentration camp, who supervised these experimentations, stated that the dynamiting method was not successful:

"Blobel constructed several experimental ovens and used wood and gasoline as fuel. He tried to destroy the corpses by means of dynamiting them too; this method was rather unsuccessful."

Hence other means were used:

"The ashes, ground to dust in a bone mill, were thrown in the vast forests around. Staf. Blobel had the order to locate all mass graves in the entire Eastern territory and to eliminate them.....The work itself was carried out by Jewish work units, which, upon finishing their particular task, were shot. Concentration camp Auschwitz had to furnish continuously Jews for this kommando."

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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. 81 - 89 (original mimeographed copy)

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Electric Zen
Ken Lewis
April 13, 1998
Rev. 1.0