LAW. NOT WAR.
Benjamin B. Ferencz

Benny Stories

CHAPTER 4:  Nuremberg Trials and Tribulations (1946-1949)

Story 34: Mass Murderers Seek to Justify Genocide

The Prosecution’s documentary evidence against the 24 leaders of the Einsatzgruppen was presented in only two days. The defense consumed 136 trial days, during which time they presented their objections, alibis, excuses, and justifications for mass murder of Jews, Gypsies, and other presumed opponents of the Nazi regime. Prosecutors could afford to be accommodating. They held the trump cards that revealed the truth. When, for example, a defense lawyer objected vehemently that a Prosecution exhibit was only a photostatic copy, he was invited to inspect the original in my office and I promised to correct any error. Some of the accused argued that their own self-incriminating reports were a pack of lies designed to please the Nazi higher-ups. The suggestion that the SS Commanders would deliberately lie to the dreaded SS Chief Himmler but not to the Nuremberg tribunal may have been flattering to the American judges, but it was not particularly persuasive.

When defendants insisted that they knew nothing about the murderous plans of the EG, we introduced a September 21, 1939 order from the Chief of the Security Police, Reinhardt Heydrich, to all EG units describing in detail how Jews were to be rounded up for annihilation. Among many other such revelations, we produced the July 31, 1941, instruction from Reich Marshal Hermann Goering, who had ordered the Security Police to carry out “a complete solution of the Jewish question.” The efficient Germans could not resist the temptation to brag about their achievements and to leave an impressive written record of their accomplishments. They weren’t so proud when they faced a war crimes court and their own murderous chronicles were submitted for scrutiny by international or American jurists.

Count One of the Indictment against the Einsatz leaders charged the defendants with being principles and accessories in a “systematic program of genocide,” the details of which were spelled out in the charges. The term “genocide” had not appeared in the indictment against Goering and cohorts by the International Military Tribunal since it was a term then unknown in criminal law. It was a newly-coined word invented by a Polish refugee lawyer named Rafael Lemkin. I had met Lemkin in the halls of the Nuremberg courthouse. He had fled from his homeland after his entire family had been murdered by the Nazis. Like the Ancient Mariner of Coleridge’s poem, he collared anyone he could, to tell them the story of how his family had been destroyed by Germans. Jews were killed just because they were Jews. He invented a special name for the efforts to destroy groups of people solely because of their race, religion, or nationality. He called it “Genocide,” and insisted that it be treated as a very special international crime.

The somewhat lost and bedraggled fellow with the wild and pained look in his eyes had written a book describing Axis Rule in Occupied Europe, which he thrust into my hands. It was my tribute and respect for him, and to the validity of his argument, that I deliberately used the term “genocide” in my opening statement to describe the activities of the EG. Today, there is worldwide recognition, based on a universally accepted United Nations Convention, that genocide is a crime that must be condemned and punished wherever it occurs. Lemkin proved that one determined individual, in persistent pursuit of a just cause, can make a difference. As an American, a veteran, and a human being, I feel a bit ashamed that it took the United States forty years to ratify the 1948 Genocide Convention that was hailed worldwide—except among isolationist and conservatives who tried to block it in the U.S. Senate.

One of the more interesting, and repulsive, arguments in defense of genocide was put forward by the lead defendant, SS General Otto Ohlendorf. He was a fairly handsome man, father of five children, and had earned a degree in economics. He was distinguished by the fact that Einsatzgroup D, the unit under his direct command, reported that they had killed 90,000 Jews. Of course, he denied any culpability. I would have loved to cross-examine Ohlendorf myself, but I decided to assign the role to James Heath, whose mature stately manner and southern drawl might make a better impression on the Germans, and avoid any taint of Jewish vengeance. Jim knew that he was on the verge of being fired because of his incapacitating alcoholism. It would be his last chance, and we went over the questions and possible answers carefully. My confidence in him had not been misplaced. He lived up to my expectations and even Telford Taylor, who wanted him fired, agreed that Heath did a fine job of grilling the Nazi General.

When Ohlendorf was asked to verify that his unit had murdered 90,000 Jews, the SS General began to quibble. He said he couldn’t confirm it. The reason given was that sometimes his men exaggerated the body count. “Would the General care to venture an estimate?” “No.” “Was it perhaps 80,000 or only 70,000?” “That was possible.” “Or perhaps 100,000?” “Maybe.” “And were there many Jewish children among those who were killed?” “Yes, of course.” But, added Ohlendorf, he never allowed his men to do as some other units did. He told his men never to use infants for target practice nor smash their heads against a tree. He ordered his men to allow the mother to hold her infant to her breast and to aim for her heart. That would avoid screaming and would allow the shooter to kill both mother and child with one bullet. It saved ammunition. Ohlendorf said he refused to use the gas vans that were assigned to his companies. He found that when the mobile killing vehicles arrived at their destination, where they were supposed to dump their asphyxiated human cargo into a waiting ditch, some of the captives were still alive and had to be unloaded by hand. His troops had to drag out corpses amid vomit and excrement and that was very hard on his men.

Judge Musmanno seemed to be fascinated by Ohlendorf’s testimony. He elicited the confirmation that all captured Jews were shot simply because they were Jews. Ohlendorf explained, like a school teacher, that those with Gypsy blood were unreliable and might help the enemy and therefore they too had to be killed. When asked by Heath and the Judge why Jewish children were slaughtered, Ohlendorf explained patiently that if the children learned that their parents had been killed, they would grow up to become enemies of Germany. He was interested in long-range security for his country. Hence killing all Jewish men, women, and children was a military necessity. Isn’t that clear?

Another outrageous Ohlendorf argument was that killings by the Einsatzgruppen were in self-defense. According to Hitler’s reasoning, with which Ohlendoirf agreed, Germany was threatened by Communism. Jews were known to be bearers of Bolshevism, and Gypsies could not be trusted. Both groups posed a potential threat to the security of the German State. It followed, logically, that all such opponents had to be destroyed. In total war, humanitarian rules are suspended by all sides—he recalled the Allied bombing of Dresden and the U.S. atomic bomb dropped on Hiroshima. He did not seem to notice that it was the one who struck the first blow who should expect legal retaliation.

Ohlendorf argued that even if Hitler was mistaken in his belief that the Bolsheviks, Jews, Gypsies, and others posed a mortal threat to Germany, the “executive measures” by the Einsatzgruppen were justified as anticipatory self-defense. The defendant insisted that he was in no position to second-guess the Head of State. Accepting Hitler’s orders without question showed the absence of any criminal intent. If the accused believes in good faith that anticipatory self-defense is lawful, the criminal intent required for conviction is lacking. Hence Ohlendorf, admitted killer of about 90,000 innocent people, should be acquitted—despite his assurance that he would do it again. Ohlendorf’s reasoning struck me as a recipe for world catastrophe.

next story 35: Judgment Day for Mass Murderers


Materials on this website may be utilized and/or reproduced for non-commercial purposes only. Reproduction or use of any of the materials contained herein for commercial purposes may not be undertaken without the express written consent of Benjamin B. Ferencz. © All rights reserved.
website: Voor&Achter Design — webmaster: Dan Skinner