On the morning of 8 April 1948 the three judges of the United States Military Tribunal II-A at Nuremberg, presided over by Michael A. Musmanno of Pennsylvania, began reading the judgment of the Einsatzgruppen Trial. The case before them, formally United States v. Otto Ohlendorf et al., had been the largest murder trial in the history of any court anywhere. Twenty-four senior officers of the SS Einsatzgruppen, the mobile killing units that had followed the Wehrmacht into the Soviet Union from 22 June 1941 onwards, had been put in the dock by a thirty-eight-year-old prosecutor named Telford Taylor and his deputy, the twenty-seven-year-old Benjamin Ferencz. The case the prosecution had presented was the case of approximately one million murdered men, women and children, killed in pits at hundreds of locations across Ukraine, Belarus, Lithuania, Latvia, Estonia and Russia between June 1941 and the autumn of 1942. The judgment took two days to read out. The sentences were delivered on 9 April. Fourteen of the defendants were sentenced to death, two more to life imprisonment, and the remaining eight to lesser terms. Most of the death sentences were subsequently commuted by the High Commissioner John J. McCloy in his clemency review of January 1951. Four were carried out, on the same morning at Landsberg prison on 7 June 1951.
The Einsatzgruppen Trial was the case the popular history of the Nuremberg proceedings has tended to forget. The original International Military Tribunal of 1945 to 1946 has the famous defendants: Göring, Hess, Speer, Ribbentrop. The Doctors’ Trial has the moral landmark of the Nuremberg Code. The IG Farben and Krupp cases have the corporate dimension. The Einsatzgruppen case has the highest body count, the most articulate perpetrators, the most direct examination of the question of how educated middle-class men could have done what they did, and the most carefully reasoned single judicial treatment of the doctrine of superior orders. It has been studied in law schools, in international relations programmes, and in the literature of moral philosophy ever since. It is, by some assessments, the most consequential of the twelve Subsequent Proceedings.
How the case was made
The Einsatzgruppen field reports, the daily and ten-day situation reports filed by the four units (A, B, C and D) back to the Reich Security Main Office in Berlin between June 1941 and the spring of 1942, were the foundation of the case. The reports had been kept by the killers themselves for internal administrative purposes; they had been duplicated, distributed to relevant Reich offices including the Reich Chancellery and the Foreign Office, and filed. They had survived the war in part because they had been copied widely and could not all be destroyed in the closing weeks. They had been recovered from the Reich Security Main Office archives in Berlin in 1945 by American investigators.
The reports were detailed and precise. They listed locations, dates, units and victim counts. The Einsatzgruppe A operational situation report of 15 October 1941, for example, gave a unit-by-unit and location-by-location accounting of killings to that date in the three Baltic states and Belarus, with a running total of 135,567 Jews killed since the start of operations on 22 June. The Einsatzgruppe C report of 12 December 1941 recorded the killing at Babi Yar of 33,771 Jews on 29 and 30 September. The Einsatzgruppe D reports for the southern Ukraine and Crimea recorded approximately 90,000 killings in the first year of operations. The reports together totalled, on the prosecution’s calculation, approximately 1.4 million identified killings; the actual figure, on subsequent historiographical reconstruction, is closer to 1.5 to 2 million when allowance is made for mass shootings not individually reported.
Ferencz had personally read the reports through over three days in April 1947 in the document centre at Berlin. The conversation he had with Taylor on returning to Nuremberg has been recorded by both men: Ferencz had argued that the reports made the case prosecutable, document by document, on a single piece of paper each. Taylor had pointed out that the Subsequent Proceedings docket was already full and the budget closed. Ferencz had argued that the case could not be passed up. Taylor had found him the budget. The case became the ninth of the twelve.
The defendants
The senior defendant was Otto Ohlendorf, who had commanded Einsatzgruppe D, the southernmost of the four units, in southern Ukraine and the Crimea. Ohlendorf had been thirty-three when he had taken command in June 1941. He had a doctorate in jurisprudence from the University of Pavia and had served as a research economist at the Reich Group Trade. His unit had killed, on his own subsequent testimony at the trial, approximately 90,000 men, women and children in the year between June 1941 and June 1942. He had taken the field appointment, on his own account, because he had thought it offered a better path of advancement than continued staff work in Berlin. He had been forty when he sat in the Nuremberg dock.
The other senior defendants included: Erich Naumann, who had commanded Einsatzgruppe B in Belarus; Otto Rasch, who had commanded Einsatzgruppe C and had supervised the Babi Yar killings before the case proceeded against him (he was severed from the trial on grounds of ill health and died in 1948); Erwin Schulz, deputy to Rasch; Franz Six, who had commanded Vorkommando Moskau; Paul Blobel, who had commanded the Sonderkommando 4a within Einsatzgruppe C and had been the senior officer at Babi Yar; Werner Braune, who had commanded Sonderkommando 11b in the Crimea; Walter Haensch, who had commanded Sonderkommando 4b; Heinz Jost, the second commander of Einsatzgruppe A; Eugen Steimle, who had commanded Sonderkommando 7a and Sonderkommando 4a; Walter Blume; Martin Sandberger; Adolf Ott; Eduard Strauch; Emil Haussmann; Ernst Biberstein, a Lutheran pastor before his SS service; Felix Rühl; Heinz Schubert; Lothar Fendler; Gustav Nosske; Mathias Graf; Waldemar von Radetzky; Willy Seibert.
The defendants were not low-ranking executioners. They were educated men. Six held doctorates. Three were lawyers. Two were architects. One was a Lutheran pastor. One had been an opera singer. One was a former agricultural economist. They had been selected for the field appointments by Reinhard Heydrich precisely because of their educational level and their political reliability; the work of the Einsatzgruppen had been understood by the SS leadership as requiring men whose professional backgrounds had given them the discipline and the ideological framework to do it without breaking down.
Ohlendorf on the stand
The most consequential single piece of testimony at the trial was Ohlendorf’s. He testified at length, beginning on 9 October 1947. He did not deny the killings. He defended them. He described the procedure his unit had followed: transports of victims brought to selected sites, often pits already dug by Soviet POWs or Jewish prisoners; the victims separated from their luggage; the older subjects sometimes shot first to spare them the wait; the firing details organised in rotation so that no individual SS man would have to fire continuously; alcohol provided after major operations.
The most quoted exchange between Ferencz and Ohlendorf came on the question of the killing of children. The transcript records:
FERENCZ: You knew that the orders which you had received were to kill the Jews because they were Jews?
OHLENDORF: Yes, that is correct.
FERENCZ: And to kill all of them, regardless of age or sex?
OHLENDORF: That is correct.
FERENCZ: Did you ever think of refusing the order?
OHLENDORF: No. The order was given by the highest authority. To refuse would have been impossible.
FERENCZ: Was that the only reason you did not refuse?
OHLENDORF: It was the principal reason. There was also the consideration that the children would otherwise grow up to seek revenge.
The court transcript records the answer without comment. Hannah Arendt’s later thesis on the banality of evil, developed in Eichmann in Jerusalem (1963), drew in part on her reading of the Ohlendorf testimony. The point was not that Ohlendorf was a stupid or brutal man. He was articulate, reasonable in manner, and answered every question. He had performed the killings with a competence and an organisational care that would have served him well in any senior management role in any postwar organisation. The killing of children, in his calculation, had been a measure of operational completeness. The court could not unhear the answer.
The judgment on superior orders
The defence in the case was, almost universally, the superior orders defence in its most direct form. The defendants had been ordered to do the killing on Hitler’s authority transmitted through Heydrich. They had been military officers serving under a constitutional head of state. They had had no lawful basis for refusal. To have refused would have meant their own execution.
The court took the unusual step of investigating the empirical question. Musmanno’s bench called witnesses on the actual treatment of SS officers who had refused to participate in the killings. The witnesses established that, in the documented record, no SS officer who had refused such an order had been executed for the refusal. The standard penalty for refusal had been transfer to a different unit, sometimes with an unfavourable note in the personnel file. Several SS men who had refused had gone on to ordinary postwar careers. The defence accordingly failed on its facts.
The judgment included the passage that became, in the international criminal law literature, the canonical statement of the Nuremberg approach to the superior orders defence:
The mere fact that the defendant acted in pursuance of an order from his government or a superior does not free him from responsibility. The submission of the defendants that they obeyed the orders of their superiors falls to the ground when the orders themselves are crimes against international law. The true test is not the existence of the order but whether moral choice was in fact possible. In the situations these defendants faced, moral choice was possible. They chose to kill.
The reasoning has been quoted in every subsequent international war crimes proceeding involving the killing of civilians by uniformed personnel. It is the foundation of the modern doctrine of superior orders in international criminal law.
The sentences and the executions
Fourteen of the twenty-two defendants tried (Rasch had been severed before judgment; Haussmann had committed suicide before judgment) were sentenced to death. Two received life imprisonment. The remainder received terms ranging from ten years to twenty years. Three received time served.
The McCloy clemency review of January 1951 reduced or commuted ten of the fourteen death sentences. Four were carried out: Otto Ohlendorf, Erich Naumann, Werner Braune and Paul Blobel were hanged at Landsberg prison early in the morning of 7 June 1951. Oswald Pohl, Hans Schmidt and the four Einsatzgruppen defendants were the last men hanged at Landsberg. All ten were buried in the prison cemetery at Spoettinger Friedhof on the western edge of Landsberg.
By 1958, every other defendant in the Einsatzgruppen case had been released from custody. Most resumed substantial postwar professional careers. Heinz Jost worked as a lawyer in Düsseldorf; Eugen Steimle taught at a Stuttgart secondary school; Heinz Schubert worked as an industrial relations officer; Ernst Biberstein returned to the Lutheran ministry. Werner Braune, before his execution, had requested that his children be told that he had died for his country. They had been informed instead, by their mother, of the circumstances of his death.
What the trial established
The Einsatzgruppen case did three things that the wider Nuremberg framework had not done as clearly. The first was to put on the documentary record, in detail, the operational reality of the largest single component of the Holocaust death toll. The killing in pits in the East had killed approximately 1.5 to 2 million Jews, more than half the figure for the entire Holocaust prior to the operation of the death camps. The Einsatzgruppen field reports, introduced into evidence in their entirety, are the foundational primary source on the early Holocaust.
The second was to establish the moral choice test in international criminal law. The empirical investigation of what had actually happened to SS men who had refused, the legal reasoning that followed, and the application of the test to the individual defendants, produced the framework that has governed the law of war crimes ever since. Soldiers, security personnel and police officers in atrocity situations do not have a complete defence in superior orders. They have, at best, a mitigation argument. The conviction of Otto Ohlendorf and his colleagues established the principle.
The third was to demonstrate, in the most direct way the criminal trial format permits, the moral reality of educated men committing mass murder while remaining fully articulate about what they were doing. Ohlendorf’s testimony has been used in every subsequent serious treatment of the question of how educated middle-class people commit atrocities. Christopher Browning’s Ordinary Men (1992), Hannah Arendt’s Eichmann in Jerusalem (1963), Daniel Goldhagen’s Hitler’s Willing Executioners (1996), all draw on the Einsatzgruppen Trial record. The disagreements between these scholars on the explanation of perpetrator behaviour are real. The evidentiary base from which they all work is the Nuremberg Einsatzgruppen Trial.
See also
Sources
- Trials of War Criminals before the Nuernberg Military Tribunals, vol IV (Einsatzgruppen Case), U.S. Government Printing Office, 1950
- Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945 to 1958: Atrocity, Law and History, Cambridge University Press, 2009
- Christopher R. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland, HarperCollins, 1992
- Helmut Krausnick and Hans-Heinrich Wilhelm, Die Truppe des Weltanschauungskrieges: Die Einsatzgruppen der Sicherheitspolizei und des SD 1938 bis 1942, Deutsche Verlags-Anstalt, 1981
- Yitzhak Arad, The Holocaust in the Soviet Union, Yad Vashem and University of Nebraska Press, 2009
- Wendy Lower, Nazi Empire-Building and the Holocaust in Ukraine, University of North Carolina Press, 2005
- Tom Hofmann, Benjamin Ferencz, Nuremberg Prosecutor and Peace Advocate, McFarland, 2014