Judgment Day for Mass Murderers

Benjamin B. Ferencz

Throughout the Einsatzgruppen trial, both the prosecution and the judges were determined to be absolutely fair to every defendant. I frequently doubted that equal consideration was being given to the Prosecutors. To be sure, it was a fault we could tolerate better than the accused since, for us, it did not risk fatal consequences. It was annoying, however, when the court regularly accepted evidence, such as remote hearsay, obviously falsified documents, or biased witnesses that should have been excluded. Well-founded objections by the prosecution were systematically overruled. Finally, Judge Musmanno made his position clear, as he laid down what came to be known as “The Penguin Rule.” He informed the Prosecutors that he would admit anything offered in evidence by the defendants, “up to, and including the sex life of a penguin.” I was, of course, quite annoyed. What I didn’t quite realize, and discovered only later, was that the learned judge could afford to be tolerant because he wanted to give the accused every possible right. He was confident that he would not be deceived by spurious submissions, and that in the end, the court would have the last word.

The defendants submitted what Prosecutors called “affidavits by the bushel” to provide an alibi or justification for their evil deeds. It was not uncommon, when a defendant swore that he was nowhere near the scene of the crime, that our investigative division uncovered letters bragging about how many Jews he had just “eliminated.” We should not have been surprised that Nazis who would be willing to die for their country would also be willing to lie for their country.

After all the evidence was submitted, every defendant was invited to make a Final Statement. There were no surprises. Most of the glum looking men in the dock simply summed up previous arguments made by attorneys or in briefs submitted on their behalf. Several of the accused men decided it might be better to remain silent. The cat and mouse game had gone on for several months. The Prosecutors were patient. After all, we were the cats. Four and a half months after the trial began, Chief of Counsel, Brigadier General Telford Taylor, who had not previously taken the floor, made the Closing Statement for the Prosecution. He summarized the evidence and the arguments in his usual elegant way.

Taylor noted that obedience to orders that were obviously criminal was illegal. Under German as well as international law, it had long been held “that one is not legally authorized to kill defenseless people.” Responsibility for the atrocities of “total war” rests not on those who finish the war but on those who start it. “The laws of war develop by common observance, so they are not changed merely because one country breaches them.” He compared the defendant’s contention, that they were only acting to protect Germany, to the argument of a burglar who breaks into a house, shoots the owner, and then claims it was necessary “self-defense.” He stressed that racial killing was always a prime objective of Hitler’s war. He asked the judges to protect international law and counseled “firmness rather than leniency to those adjudged guilty of this terrible crime against humanity.”

The judges ordered a recess for almost two months to weigh the evidence and arguments and to study the copious briefs submitted by Counsel. It was April 8, 1948 when the Court reconvened to render its Opinion and Judgment in open court. It took the judges two days of reciting in tandem to conclude reading the 175 printed pages. Every argument raised by any defendant was carefully analyzed and compared to the evidence. The authenticity of the EG Reports was confirmed and illustrative extracts showed the basis for the Court’s conclusions. The judgment noted that Jews were sometimes killed by working them to death rather than shooting, or by leaving the executions to local Ukrainians who could be incited to conduct pogroms under SS supervision. Jewish prisoners-of-war were systematically annihilated by the EG after all fighting had ceased. The Court described various sadistic means of execution by the EG, including the camouflaged gas vans that carried the aged, infirm, and children on a free ride to their unmarked graves.

The most comprehensive portions of the Judgment were the fifty-five pages analyzing the validity and interpretation of the applicable law. Every defense argument regarding jurisdiction, self-defense and necessity, superior orders, and non-involvement was put under the judicial microscope and systematically rejected. The decisions reached by the International Military Tribunal on September 30, 1946 were reaffirmed and upheld. The war crimes trials were not victor’s justice or an arbitrary exercise of power, but instead the expression and upholding of existing international law. Every German soldier carried a paybook which included the phrase, “The civilian populations should not be injured.” “Certainly no one can claim,” wrote the EG judges, “that there is any taint of ex post factoism in the law of murder.” Murder was not a crime invented retroactively by the prosecution.

The court gave detailed consideration to the defense argument that the accused were acting in self-defense of their country that was threatened by Bolshevism, Gypsies, and Jews. The Tribunal was astounded that such a proposition could be advanced in all seriousness, since it failed to recognize the distinction between patriotism and murder. Jews were killed because they were Jews, even if they posed no threat to anyone. Nazi rulers started an aggressive war—not the other way round. The argument that the Jews constituted an aggressive menace to Germany was dismissed as untenable and “opposed to all facts, all logic, and all law.”

Judge Musmanno felt strongly that “where law exists a court will rise.” He saw an international criminal court as a means of the diminishing crimes against humanity and combating hatred and violence between ideologies. He expressed the hope that mankind, with intelligence and will, would be able “to maintain a tribunal holding inviolable the law of humanity, and by doing so, preserve the human race itself.” The basis for each individual judgment was spelled out. I suddenly developed a much greater respect and affection for Judge Michael Musmanno. When the trials were over, I relayed my admiration of Naval Captain Musmanno in a letter of appreciation to the U.S. Secretary of the Navy.