A Legacy of the Nuremberg Tribunals—The Einsatzgruppen Trial

Lee Spielmann writes: 'United States v. Ohlendorf' helped secure important legal principles and found prescient echoes in later Holocaust-related proceedings.

November 27, 2017 at 02:00 PM

24 minute read

By Lee Spielmann

Commencing in September 1947 and concluding the following April, ranking members of the “Einsatzgruppen,” part of Nazi Germany's SS and Police apparatus, were prosecuted in Nuremberg Military Tribunal Case No. 9, United States v. Ohlendorf (NMT9). The passage of 70 years makes it appropriate to explore the significance and lasting legal legacy of “the biggest murder trial in history.” Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945-1958: Atrocity, Law, and History (2009), 196.)

With Germany's June 1941 invasion of the Soviet Union, four battalion-sized Einsatzgruppen (designated A, B, C and D) followed the German army to secure the areas behind military lines by shooting those deemed Germany's enemies. While the Einsatzgruppen initially shot male Jews of military-service age, within several weeks they were shooting all Jews irrespective of gender, age or position in Soviet society. The Einsatzgruppen compiled reports of their activities. For example, in mid-October 1941, Einsatzgruppe A reported having killed over 118,000 Jews; Einsatzgruppe D reported in March 1942 having killed nearly 92,000. By the end of 1941, approximately 600,000 Jews had been murdered in the Soviet territories, the eventual total reaching 1.5 million. (NMT9, at 428-30. Saul Friedländer, The Years of Extermination: Nazi Germany and the Jews, 1939-1945 (2007), 209; Peter Black, “Foot Soldiers of the Final Solution: The Trawniki Training Camp and Operation Reinhard,” 25 Holocaust and Genocide Studies (2011), 2. Other SS and Police units, and both indigenous collaborators and the German army, also perpetrated massacres.)

Beginning November 1945, the United States, Great Britain, France and Soviet Union jointly tried leading Nazi criminals in the International Military Tribunal (IMT). In December 1945 they authorized each nation to try accused Nazi criminals within its occupation zone, and NMT9 was one of 12 such proceedings.

Twenty-three defendants were charged with crimes against humanity (defined to include “murder [and] extermination … against any civilian population”), war crimes and membership in an organization the IMT found criminal. Defendants were the commanders and deputy commanders of the Einsatzgruppen, their subordinate company-sized operational units, or officers within these units. The NMT9 Tribunal found defendants killed over 1,000,000. Twenty-one were found guilty on all counts; 14 were sentenced to death, two to life imprisonment and five to 10- or 20-year prison terms. (NMT, at 431, 509-89.)

NMT9's significance can be variously measured. Rejecting all defense arguments, the Tribunal reaffirmed salient IMT rulings, including that individuals can be criminally liable for perpetrating state-sponsored crimes. The decision helped secure important legal principles and found prescient echoes in later Holocaust-related proceedings.

Discussing crimes against humanity, the Tribunal wrote, “Humanity is the sovereignty that has been offended and a tribunal is convoked to determine why.” The defendants were tried because they were “accused of having offended against society itself, and society, as represented by international law, has summoned them for explanation.” The Tribunal analogized to piracy, stating “no authority … denies any belligerent nation jurisdiction over individuals in its actual custody charged with violation of international law.” (NMT9, at 497, 462, and 459-60.)

Such statements invoked the principles underlying the universal jurisdiction doctrine (“universality principle”) as the lawful basis for defendants' prosecution. This doctrine holds some crimes are so universally condemned that any nation may prosecute one accused of such a crime even if committed extraterritorially and no other connection exists between the prosecuting sovereign and the crime. (See, e.g., Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir. 1985); Restatement 3rd of United States Foreign Relations Law (1987), §404, at 254; Kenneth Randall, “Universal Jurisdiction Under International Law,” 66 Texas Law Review 785, 805 (1988).)

The Tribunal's jurisdictional discussion comports with analyses in subsequent Holocaust-related proceedings, its explanation presaging later courts' express reliance upon the universality principle to try accused Holocaust perpetrators. NMT9 was one of the earliest cases to invoke this principle as the jurisdictional basis for prosecuting crimes against humanity, thereby helping expand the doctrine's future use. (See, e.g., U.S. v. Yousef, 327 F.3d 56, 105 (2d Cir. 2003); Thomas Sponsler, “The Universality Principle of Jurisdiction and the Threatened Trials of American Airmen,” 15 Loyola Law Review 49-50 (1968-1969).)

For example, Israel's criminal prosecution of Adolf Eichmann (head of the Nazi office responsible for the European-wide [outside Poland] deportations of Jews to the extermination camps) was upheld because Israel, as any other country, “was entitled, pursuant to the principle of universal jurisdiction…to try” him. The court certifying John Demjanjuk subject to extradition to stand trial in Israel on charges he operated the gas chambers at the Nazi extermination camp Treblinka held Israel's intention to try him under its domestic law “conforms with the international law principles of 'universal jurisdiction'” without “violat[ing] United States jurisdictional principles or practices.” (Attorney General v. Eichmann, 36 I.L.R. 277, 304, 306 (Sup. Ct. Israel 1962), Raul Hilberg, The Destruction of the European Jews (3rd ed. 2003), 425; In re Extradition of Demjanjuk, 612 F. Supp. 544, 554-55 (N.D. Ohio 1985).)

Courts today accept “universal jurisdiction exists to prosecute” crimes universally condemned including “torture, genocide, crimes against humanity, and war crimes.” Federal law implementing ratification of the international genocide convention reflects this. Congress, constitutionally-empowered “[t]o define and punish … Offences against the Law of Nations,” authorized criminal prosecutions of persons accused of genocide even when the crimes occur extraterritorially and defendants' only domestic nexus is their “presen[ce] in the United States.” A direct line runs from NMT9's jurisdictional principles to present-day conceptions regarding universal jurisdiction. (Sosa v. Alvarez-Marchain, 542 U.S. 692, 762 (2004) (Breyer, J., concurring); 18 U.S.C. §1091(e)(2)(D); Art. I, Sec.9, cl.10.)

The Tribunal's rejection of defense arguments foreshadowed later rulings. Arguing the killings were committed for Germany's defense, defendants asserted, in part, when “the war aims of one of the opponents are total, then the opponent is vindicated in claiming self-defense and state of necessity … .” The Tribunal unequivocally rejected this patently absurd argument: “The annihilation of the Jews had nothing to do with the defense of Germany [and] was in no way connected with [its] protection” and “the argument … the Jews … constituted an aggressive menace to Germany … which called for their liquidation in self-defense, is untenable as being opposed to all facts, all logic and all law.” NMT9, at 465, 469-70.

In federal proceedings against Holocaust perpetrators, comparably untenable arguments met similar repudiation. One argument in the Demjanjuk extradition proceeding prompted the response that the “claim that the killing of defenseless civilians at Treblinka was part of the Nazi war effort…is frivolous and offensive.” When a former concentration camp chief invoked the court's sense of “decency” and “compassion” to prevent his deportation to the Soviet Union, the tone and tenor of the court's dismissal matched NMT 9's repudiation of the self-defense argument: “Linnas' appeal to humanity, a humanity which he has grossly, callously and monstrously offended, truly offends this court's sense of decency.” (612 F. Supp. at 570; Linnas v. INS, 790 F.2d 1024, 1032 (2d Cir. 1986).)

Some rulings reflect well-settled principles of American criminal law.

A number of defendants, admitting participation in the killings, denied culpability, arguing they followed orders. The Tribunal rejected this argument:

“The subordinate is bound to obey the lawful orders of his superior and if he accept a criminal order and executes it with a malice of his own, he may not plead superior orders in mitigation of his offense. If the nature of the ordered act is manifestly beyond the scope of the superior's authority, the subordinate may not plead ignorance to the criminality of the order.”

(NMT9, at 470-71.)

This reflects the American standard that obedience to a patently criminal order is no defense to criminal liability. For example, in a case resulting from the My Lai massacre in Vietnam, the Court of Military Appeals wrote: “An order to kill infants and unarmed civilians who were so demonstrably incapable of resistance to military force … is … palpably illegal.” At least one American proceeding, involving the premeditated murder of a Vietnamese prisoner, cited NMT9 as guidance on the superior orders defense. (Gary Solis, “Obedience of Orders and the Law of War: Judicial Application in American Forums,” 15 American University International Law Review (2000), 519; U.S. v. Calley, 22 U.S.C.M.A. 534, 544 (Court Military Appeals 1973); U.S. v. Griffin, 39 C.M.R. 586 (Army Board of Review 1968).)

Discussing whether “any … defendants were coerced into killing Jews under threat” of death if they refused orders to kill, the Tribunal observed such threat must be “imminent, real and inevitable.” This mirrors federal law. Duress is a defense when “an immediate threat of death or serious bodily injury” and “a well-grounded fear that the threat will be carried out” exist. (NMT9, at 480; U.S. v. Shryock, 342 F.3d 948, 987 (9th Cir. 2003).)

Several defendants argued they were not involved in the killings. One denied responsibility for the killings carried out by his subordinates, asserting they decided whom to execute. Rejecting this defense—“A superior may not delegate authority to a subordinate and then plead noninvolvement for what the subordinate does”—the Tribunal stated once a court determines an act was a crime, “then all those who participated in it, both superior and subordinates, are accomplices.” (NMT9, at 540, 486.)

Such principles govern federal conspiracy law. Each of the “partners in a criminal plan … is responsible for the acts of each other.” When “conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators.” These rules cover anyone “who counsels, procures, or commands another to commit a crime.” As the Second Circuit concluded: “Where … defendant has become a member of a joint undertaking, he cannot avoid responsibility for its unlawful acts by closing his eyes to what is readily apparent.” (Salinas v. U.S., 522 U.S. 52, 63-64 (1997) (“partners … perpetrators”), Pinkerton v. U.S., 328 U.S. 640, 647 (1946); U.S. v. Reed, 790 F.2d 208, 211 (2d Cir. 1986).)

Other NMT9 observations are noteworthy.

The Tribunal stated “no one can claim with the slightest pretense of reasoning that there is any taint of ex post factoism in the law of murder.” This tracked the Demjanjuk extradition court statement 40 years later when Israel sought to try him under its postwar Nazi and Nazi Collaborators (Punishment) Law. The court found the statute was jurisdictional. Refuting a retroactivity argument that it created a new crime, that court observed “it is absurd to argue that operating gas chambers, and … killing unarmed prisoners were not illegal acts under the laws and standards of every civilized nation in 1942-43.” (NMT9, at 411, 458-59. Demjanjuk, 612 F. Supp. at 544.)

Although defendants were not tried for genocide, a crime first defined in 1944, the Tribunal provided one of the earliest references to the Nazi extermination of the Jews as genocide, acknowledging “[t]he annihilation of the Jews…the genocide program….” This pronouncement stands as early judicial recognition the Holocaust constituted genocide, as American courts subsequently have done. NMT9 is a milestone in the evolution of civilized nations juridically condemning genocide. (NMT9, at 469; see also 450, 451. Raphael Lemkin, Axis Rule in Occupied Europe (1944). See, e.g., Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016); American Insurance Association v. Garamendi, 539 U.S. 396, 430 (2003) (Ginsburg, J., dissenting).)

NMT9 remains historically important. Many people remain unaware of the Einsatzgruppen killings. With the Tribunal expressly recognizing “the main objective of the [Einsatzgruppen] was to kill Jews,” the case record constitutes unassailable and readily available judicial documentation of Nazi mass murder attested to by the perpetrators' contemporaneous records. Unlike the IMT, with its “relentless focus on the German conspiracy to wage war obstruct[ing] a clear understanding of German policy towards the Jews,” NMT9 provides a comprehensive picture of the Nazi annihilation of the Jews in the Soviet Union. (Alison Smale, “Germany Confronts, in a Unique Exhibit, Its 'Holocaust of the Bullets,'” N.Y. Times (October 24, 2016), A6; NMT9, at 490; David Cesarani, Final Solution: The Fate of the Jews 1933-49 (2016), 785.)

NMT9 was a watershed proceeding if only because “never before had defendants been called to answer for crimes associated with genocide.” Its rulings constitute viable de facto precedent for future prosecutions for crimes against humanity. Seventy years later, as time recedes the Holocaust further into a more remote past, United States v. Ohlendorf remains an instructive legal blueprint into one of the earliest prosecutions to confront the horrors of Nazi crimes that “def[ied] language in the depths and vastness of their brutality.” (Earl, 296; NMT9, at 500.)

Lee Spielmann is assistant regional counsel at the U.S. Environmental Protection Agency in New York.

Such statements invoked the principles underlying the universal jurisdiction doctrine (“universality principle”) as the lawful basis for defendants' prosecution. This doctrine holds some crimes are so universally condemned that any nation may prosecute one accused of such a crime even if committed extraterritorially and no other connection exists between the prosecuting sovereign and the crime. (See, e.g., Demjanjuk v. Petrovsky , 776 F.2d 571, 582 (6th Cir. 1985); Restatement 3rd of United States Foreign Relations Law (1987), §404, at 254; Kenneth Randall, “Universal Jurisdiction Under International Law,” 66 Texas Law Review 785, 805 (1988).)

The Tribunal's jurisdictional discussion comports with analyses in subsequent Holocaust-related proceedings, its explanation presaging later courts' express reliance upon the universality principle to try accused Holocaust perpetrators. NMT9 was one of the earliest cases to invoke this principle as the jurisdictional basis for prosecuting crimes against humanity, thereby helping expand the doctrine's future use. (See, e.g., U.S. v. Yousef , 327 F.3d 56, 105 (2d Cir. 2003); Thomas Sponsler, “The Universality Principle of Jurisdiction and the Threatened Trials of American Airmen,” 15 Loyola Law Review 49-50 (1968-1969).)

For example, Israel's criminal prosecution of Adolf Eichmann (head of the Nazi office responsible for the European-wide [outside Poland] deportations of Jews to the extermination camps) was upheld because Israel, as any other country, “was entitled, pursuant to the principle of universal jurisdiction…to try” him. The court certifying John Demjanjuk subject to extradition to stand trial in Israel on charges he operated the gas chambers at the Nazi extermination camp Treblinka held Israel's intention to try him under its domestic law “conforms with the international law principles of 'universal jurisdiction'” without “violat[ing] United States jurisdictional principles or practices.” ( Attorney General v. Eichmann , 36 I.L.R. 277, 304, 306 (Sup. Ct. Israel 1962), Raul Hilberg, The Destruction of the European Jews (3rd ed. 2003), 425; In re Extradition of Demjanjuk, 612 F. Supp. 544, 554-55 (N.D. Ohio 1985).)

Courts today accept “universal jurisdiction exists to prosecute” crimes universally condemned including “torture, genocide, crimes against humanity, and war crimes.” Federal law implementing ratification of the international genocide convention reflects this. Congress, constitutionally-empowered “[t]o define and punish … Offences against the Law of Nations,” authorized criminal prosecutions of persons accused of genocide even when the crimes occur extraterritorially and defendants' only domestic nexus is their “presen[ce] in the United States.” A direct line runs from NMT9's jurisdictional principles to present-day conceptions regarding universal jurisdiction. ( Sosa v. Alvarez-Marchain , 542 U.S. 692, 762 (2004) (Breyer, J., concurring); 18 U.S.C. §1091(e)(2)(D); Art. I, Sec.9, cl.10.)

Some rulings reflect well-settled principles of American criminal law.

A number of defendants, admitting participation in the killings, denied culpability, arguing they followed orders. The Tribunal rejected this argument:

(NMT9, at 470-71.)

This reflects the American standard that obedience to a patently criminal order is no defense to criminal liability. For example, in a case resulting from the My Lai massacre in Vietnam, the Court of Military Appeals wrote: “An order to kill infants and unarmed civilians who were so demonstrably incapable of resistance to military force … is … palpably illegal.” At least one American proceeding, involving the premeditated murder of a Vietnamese prisoner, cited NMT9 as guidance on the superior orders defense. (Gary Solis, “Obedience of Orders and the Law of War: Judicial Application in American Forums,” 15 American University International Law Review (2000), 519; U.S. v. Calley , 22 U.S.C.M.A. 534, 544 (Court Military Appeals 1973); U.S. v. Griffin , 39 C.M.R. 586 (Army Board of Review 1968).)

Such principles govern federal conspiracy law. Each of the “partners in a criminal plan … is responsible for the acts of each other.” When “conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators.” These rules cover anyone “who counsels, procures, or commands another to commit a crime.” As the Second Circuit concluded: “Where … defendant has become a member of a joint undertaking, he cannot avoid responsibility for its unlawful acts by closing his eyes to what is readily apparent.” ( Salinas v. U.S. , 522 U.S. 52, 63-64 (1997) (“partners … perpetrators”), Pinkerton v. U.S. , 328 U.S. 640, 647 (1946); U.S. v. Reed , 790 F.2d 208, 211 (2d Cir. 1986).)

Other NMT9 observations are noteworthy.

Although defendants were not tried for genocide, a crime first defined in 1944, the Tribunal provided one of the earliest references to the Nazi extermination of the Jews as genocide, acknowledging “[t]he annihilation of the Jews…the genocide program….” This pronouncement stands as early judicial recognition the Holocaust constituted genocide, as American courts subsequently have done. NMT9 is a milestone in the evolution of civilized nations juridically condemning genocide. (NMT9, at 469; see also 450, 451. Raphael Lemkin, Axis Rule in Occupied Europe (1944). See, e.g., Simon v. Republic of Hungary , 812 F.3d 127 (D.C. Cir. 2016); American Insurance Association v. Garamendi , 539 U.S. 396, 430 (2003) (Ginsburg, J., dissenting).)