Inconsistencies in sentencing at Nuremberg

[Manstein]

Here is one thing that has puzzled me: Why is it that some defendants who were members of the SS were not imprisoned for being SS members while others were sentenced for that sole reason? Here is some background on who was convicted solely for that reason and who wasn't:

Convicted just for being SS member:

SS-Oberfuehrer Josef Altstoetter (Justice Case) (5 years imprisonment)
SS-Oberfuehrer Helmut Poppendick (Doctors Case) (10 years imprisonment)
SS-Brigadefuehrer Otto Steinbrinck (Flick Case) (5 years imprisonment)
SS-Hauptsturmfuehrer Felix Ruehl (Einsatzgruppen Case) (10 years imprisonment)

Acquitted, despite being SS members:

SS-Oberfuehrer Karl Engert (Justice Case)
SS-Standartenfuehrer Josef Voegt (Concentration Camp Case)
SS-Standartenfuehrer Rudolf Scheide (Concentration Camp Case)
SS-Obersturmbannfuehrer Horst Klein (Concentration Camp Case)
SS-Oberfuehrer Konrad Meyer-Hetling (RuSHA Case)
SS-Oberfuehrer Otto Schwarzenberger (RuSHA Case)
SS-Standartenfuehrer Max Sollmann (RuSHA Case)
SS-Oberfuehrer Gregor Ebner (RuSHA Case)
SS-Hauptsturmfuehrer Guenther Tesch (RuSHA Case)
SS-Untersturmfuehrer Mathias Graf (Einsatzgruppen Case)

[demonio]

Here is one thing that has puzzled me: Why is it that some defendants who were members of the SS were not imprisoned for being SS members while others were sentenced for that sole reason? Here is some background on who was convicted solely for that reason and who wasn't:

Convicted just for being SS member:

SS-Oberfuehrer Josef Altstoetter (Justice Case) (5 years imprisonment)
SS-Oberfuehrer Helmut Poppendick (Doctors Case) (10 years imprisonment)
SS-Brigadefuehrer Otto Steinbrinck (Flick Case) (5 years imprisonment)
SS-Hauptsturmfuehrer Felix Ruehl (Einsatzgruppen Case) (10 years imprisonment)

Acquitted, despite being SS members:

SS-Oberfuehrer Karl Engert (Justice Case)
SS-Standartenfuehrer Josef Voegt (Concentration Camp Case)
SS-Standartenfuehrer Rudolf Scheide (Concentration Camp Case)
SS-Obersturmbannfuehrer Horst Klein (Concentration Camp Case)
SS-Oberfuehrer Konrad Meyer-Hetling (RuSHA Case)
SS-Oberfuehrer Otto Schwarzenberger (RuSHA Case)
SS-Standartenfuehrer Max Sollmann (RuSHA Case)
SS-Oberfuehrer Gregor Ebner (RuSHA Case)
SS-Hauptsturmfuehrer Guenther Tesch (RuSHA Case)
SS-Untersturmfuehrer Mathias Graf (Einsatzgruppen Case)

Did the same court handle all the matters ?

[David Thompson]

manstein -- Thanks for posing an interesting question.

The judgment on the SS as a criminal organization is often misunderstood. The IMT did not declare the entire SS to be a criminal organization. Instead, the concluding portion of the judgment reads:

Conclusion

The SS was utilized for purposes which were criminal under the Charter involving the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labor program, and the mistreatment and murder of prisoners

516
30 Sept. 46

of war. The Defendant Kaltenbrunner was a member of the SS implicated in these activities. In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS, including the members of the Allgemeine SS, members of the Waffen-SS, members of the SS Totenkopfverbaende, and the members of any of the different police forces who were members of the SS. The Tribunal does not include the so-called SS riding units. The Sicherheitsdienst des Reichsfuehrer SS (commonly known as the SD) is dealt with in the Tribunal's judgment on the Gestapo and SD.

The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph, who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes, excluding, however, those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes.

The basis of this finding is the participation of the organization in war crimes and crimes against humanity connected with the war; this group declared criminal cannot include, therefore, persons who had ceased to belong to the organizations enumerated in the preceding paragraph prior to 1 September 1939.

(My emphasis). IMT Proceedings, vol. 22, pp. 515-16

The full five page text of the judgment is available at:

http://www.thirdreichforum.com/viewtopic.php?t=15476

and

The Avalon Project at the Yale School of Law
http://www.yale.edu/lawweb/avalon/imt/proc/09-30-46.htm

If the defendant was charged with the offense of criminal membership in the SS, there is usually an explanation for the conviction or acquittal in each individual judgment. It will take me a while to look up all the judgments, but here is the court's explanation for acquitting Matthias Graf:

In considering the subject of membership in a criminal organization, as defined by the International Military Tribunal Decision, September 1, 1939 is accepted as a crucial date. On that date Graf was not a member of any criminal organization. When, in 1940, he was drafted by the Emergency Service Regulations he applied to rejoin the SS. He explained that this application was purely a perfunctory function because he would automatically have fallen into this organization on account of his thenbeing a member of the SD:

"The Personnel Department Chief could see from my documents that I used to be a member of the SS, so he said, 'Of course, in that case you have to rejoin the SS.' Therefore, I made out the application, but, if I had not been deferred to the SD, I would never have rejoined the SS. After all, I had left the SS and also I did not rejoin the General SS, but I was transferred to the special formation, the SD. After all, this was on the war emergency status. In my opinion then, it was merely a formal matter to regain my former SS number." In substantiation of his claim that he rejoined the SS because of the insistency of his departmental chief the defendant pointed out, that although drafted into war service on January 1, 1940 he did not make his application for the SS until July 28. Had he had a sincere desire to rejoin the SS, he would not have waited 7 months to make the application. He, therefore, submits that the filing of the application was a mere form.

The Tribunal finds that the defendant's leaving the SS in 1936 showed a clear intention to disassociate himself from that organization and accepts the defendant's explanation that he would not have rejoined the SS in July 1940 had he not been drafted by the Emergency Service Regulations and deferred to the SD. The Tribunal therefore finds him not guilty of membership in the SS under the conditions declared criminal by the International Military Tribunal.

(Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. pp. 225-227 [original mimeographed copy]), at:

http://www.einsatzgruppenarchives.com/trials/graf.html

[Manstein]

Thanks, David, that explains the Graf acquittal, but what about Gregor Ebner? He had been a member before 1939 and showed no intention to leave the SS and he surely had some knowledge of some criminal activities the SS was doing, being an Oberfuehrer, a friend of Himmler, and a "racial expert", same with Otto Schwarzenberger, Konrad Meyer-Hetling, and Guenther Tesch.

BTW, yes, demonio, they were all tried by the American tribunal at Nuremberg, except in different trials, yet they had the same policies for judging Nazi war criminals.

[David Thompson]

Manstein -- Ebner was convicted of being a member of the criminal group within the SS (Trials of War Criminals before the Nuernberg Military Tribunals [NMT], vol. 5, p. 164):

COUNT THREE

The Tribunal finds that the defendant Gregor Ebner was a member of a criminal organization, that is, the SS, under the conditions defined and specified by the judgment of the International Military Tribunal, and he is, therefore, guilty under count three of the indictment.

See the judgment of the American military tribunal in the RSHA trial against Gregor Ebner, in the Mazal Library, available on-line at:

http://www.mazal.org/archive/nmt/05/NMT05-T0164.htm

so was Meyer-Hetling (p. 157)

COUNT THREE

The Tribunal finds that the defendant Meyer-Hetling was a member of a criminal organization; that is, the SS, under the conditions defined and specified by the judgment of the International Military Tribunal, and he is, therefore, guilty under count three of the indictment.

http://www.mazal.org/archive/nmt/05/NMT05-T0157.htm

and Schwarzenberger (p. 158):

COUNT THREE

The Tribunal finds that the defendant Schwarzenberger was a member of a criminal organization, that is, the SS, under the conditions defined and specified by the judgment of the International Military Tribunal, and he is, therefore, guilty under count three of the indictment.

http://www.mazal.org/archive/nmt/05/NMT05-T0158.htm

and Tesch (p. 164):

COUNT THREE

The Tribunal finds that the defendant Guenther Tesch was a member of a criminal organization, that is, the SS, under the conditions defined and specified by the judgment of the International Military Tribunal, and he is, therefore, guilty under count three of the indictment.

http://www.mazal.org/archive/nmt/05/NMT05-T0164.htm

I haven't had time to run down the other judgments for you yet.

[David Thompson]

The remaining defendant you listed from the RuSHA case, Max Sollmann, was also convicted of criminal membership in the SS:

COUNT THREE

The Tribunal finds that the defendant Sollmann was a member of a criminal organization, that is, the SS, under the conditions defined and specified by the judgment of the International Military Tribunal, and he is, therefore, guilty under count three of the indictment.

(Trials of War Criminals before the Nuernberg Military Tribunals [NMT], vol. 5, p. 164), available on-line from the Mazal Library at:

http://www.mazal.org/archive/nmt/05/NMT05-T0164.htm

Of the defendants in the Concentration Camp or WVHA case, all three were acquitted of criminal membership in the SS. Here are the judgments:

on Josef Vogt:

JOSEF VOGT

The date at which Vogt joined the National Socialist Party is uncertain due to contradictions in the proof, but it was either in 1920, 1937, or 1938. The date of his entry into the SS is also indefinite. In his affidavit he states that he was never a member of the Allgemeine SS, but his official service record contains the entry, "1 October 1936, entry into Allgemeine SS." In any event, it is clear that he was a member of the Party and of the SS before the war. In the SS he attained the rank of Standartenfuehrer, or colonel. Between 1936 and 1942, he served as an auditor, or in some related capacity in various SS offices, and when WVHA was organized in the spring of 1942, he became chief of Amt A IV, the office of audits, under the defendants Frank and Fanslau, in which office he continued until the surrender. Certain departments of the SS were excluded from the auditing functions of Vogt's Amt. Amtsgruppe C, the Main Construction Office, had its own separate auditing service under defendant Eirenschmalz in Amt C VI; Amtsgruppe W, the economic enterprises, was independently audited; expenses for medical and welfare service were not audited by Vogt's Amt, as was also true of the SS paymaster's office in Dachau. Only the stationary units of the Waffen SS were subject to audit by Amt A IV; all mobile units were subject to audit by the army administration, and all SS offices in the occupied territories were independently audited on the spot. Amt A IV did audit the receipts and disbursements of about 300 garrison cashiers, together with the records of Amtsgruppen A, B, and D of the WVHA. Vogt's duties never transcended those of an auditor. He was never a financial director; he did not authorize purchases, requisition material, direct distribution, order payment, or in any other way control fiscal policy. His sole task was to inspect and analyze the records (which others had made) of past transactions.

The prosecution seeks to inculpate Vogt on two grounds — that he took a consenting part in and was connected (1) with the mistreatment of concentration camp inmates, or at least in the employment of slave labor in the camps, and (2) with the atrocities incident to Action Reinhardt.

As to the first specification, there is no claim that Vogt was either a principal in, or an accessory to the actual mistreatment or enslavement of the concentration camp inmates. The most that is claimed is that because of his position he must have known about them and therefore tools a consenting part in and was connected with them. His consent is not objectively shown. He nowhere expresses or implies consent. The only consent claimed arises from imputed knowledge — nothing more. But the phrase, "being connected with" a crime means something more than having knowledge of it. It means something more than being in the same building or even being in the same organization with the principals or accessories. The International Military Tribunal I recognized this fact when they placed definite limitations on criminality arising from membership in certain organizations. There is an element of positive conduct implicit in the word "consent." Certainly, as used in the ordinance, it means something more than "not dissenting." Perhaps in the case of a person who had power or authority to either start or stop a criminal act, knowledge of the fact coupled with silence could be interpreted as consent. But Vogt was not such a person. His office in WVHA carried no such authority, even by the most strained implication. He did not furnish men, money, materials, or victims for the concentration camps. He had no part in determining what the inmates should eat or wear, how hard they should work, or how they should be treated. Nor is there any proof that he knew what they did eat or wear, or how hard they did work. or how they were treated. The most that can be said is that he knew that there were concentration camps and that there were inmates. His work cannot be considered any more criminal than that of the book keeper who made up the reports which he audited, the typist who transcribed the audit report, or the mail clerk who forwarded the audit to the Supreme Auditing Court.

ACTION REINHARDT

In June 1943 there arose some suspicion of financial irregularities in the SS garrison treasury at Lublin, whereupon Frank ordered Vogt to proceed to Lublin to audit the treasury books. During his audit, Vogt came across an "Account P.," containing the record of a very large amount of money on hand. Vogt asked Wippern, Globocnik's deputy, what the account represented and was told that it was a secret which could not be disclosed. Vogt was told later, however, that the money had been confiscated from the Jews and then was shown a trunk full of jewelry and rare coins which was kept in a safe. The next day Wippern showed him a house stored with clothing which Wippern said had come from the confiscation. Before leaving Lublin, Vogt complained to Globocnik that the record of this account was not properly kept and that Globocnik did not have proper certificates identifying: the owners of the property. He also commented that the Supreme Auditing Court had no notice of the fund and had no opportunity to audit it, as was their right and duty. After some controversy-. Vogt and his assistant, Hahnefeld, returned to Berlin and reported to Frank and Pohl, and also to Knebel, a representative of the Supreme Auditing Court.

No further audit of the Reinhardt fund was made by Vogt, nor does it appear that he ever did anything further in connection with it except to write a letter on 15 March 1944, to all WVHA advisors asking whether they had any receipts or expenditures in connection with the evacuation of the Jews which had not been settled. This letter was written in pursuance of Pohl's order 9 December 1943, directing that upon completion of the resettlement operation vouchers were to be presented for audit to Vogt's Amt A IV. Vogt's letter, 15 March 1944, was merely a final check on compliance with Pohl's order.

Except for the audit of June 1943, referred to above, Vogt made no further audit of the proceeds of Action Reinhardt, but subsequent audits were made by Melmer, who had no connection with Vogt or his Amt.

It will be observed that this audit by Vogt of the garrison treasury at Lublin was not in performance of his regular duties. It was a special assignment by Frank, impelled by unusual and urgent circumstances which called Vogt aside from his usual duties. It constitutes a single isolated instance in which Vogt came in contact with Action Reinhardt. The question naturally arises, what should Vogt have done under the circumstances to avoid implication in Action Reinhardt ? If his single experience amounted to taking a consenting part in or being connected with the felonious project, at least it can be said that he avoided all future experiences. At the time of his audit in Lublin, Action Reinhardt had been in progress for nearly two years and was near the point of conclusion. It was far too late to attempt to stop the launching of the vicious program even if Vogt had had the power to do so. The harm had been done, and he could not prevent it. He promptly reported his discoveries to his superiors and severed whatever slight connection he may have had with the project. He had inadvertently stumbled upon evidence of a crime which had already been committed. Instead of trying to conceal it, he openly uncovered it and had no further connection with it. Again, the Tribunal is impelled to ask, what should he have done? Unless we are willing to resort to the principle of group responsibility and to charge the whole German nation with these war crimes and crimes against humanity, there is a line somewhere at which indictable criminality must stop. In the opinion of the Tribunal, Vogt stands beyond that line.

The Tribunal therefore finds the defendant Vogt not guilty of war crimes and crimes against humanity, as charged in the indictment.

COUNT FOUR

The Tribunal finds the defendant Vogt not guilty under count four of the indictment.

NMT vol. 5, pp. 1000-1004
http://www.mazal.org/archive/nmt/05/NMT05-T1000.htm

on Rudolf Scheide

COUNT FOUR

The defendant admits that he joined the NSDAP in 1928, and that he was a member of the SS from 1930 until the end of the war. In regard to membership in certain organizations declared criminal by the International Military Tribunal, the following was said:

"A criminal organization is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the 'commission of crimes denounced by the Charter. Since the declaration with respect to the organizations and groups will, as has been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations."

The defendant admits membership in the SS, an organization declared to be criminal by the judgment of the International Military Tribunal, but the prosecution has offered no evidence that the defendant had knowledge of the criminal activities of the SS, or that he remained in said organization after September 1939 with such knowledge, or that he engaged in criminal activities while a member of such organization.

Therefore, the Tribunal finds and adjudges that the defendant Rudolf Scheide is not guilty as charged in count four of the indictment, and directs that he be released from custody under the indictment when this Tribunal presently adjourns.

NMT vol. 5, p. 1018
http://www.mazal.org/archive/nmt/05/NMT05-T1018.htm

on Horst Klein:

HORST KLEIN

Horst Klein studied law at the University of Lausanne, Freidburg, and Bonn, and in February 1933 finished his studies and passed his final examination as probationer. He worked in various; courts looking toward a judicial career, but abandoned this intention when, as he stated, he observed that under Nazi rule the judges were denied complete independence of judgment and decision. In 1937 he became an assessor and then obtained employment in the bookkeeping branch of the Duerkopp-Werke. In February 1938 he took up employment with the "Society Sponsoring and Maintaining German Cultural Monuments, Registered Corporation."

He joined the NSDAP in May 1933 but held no honorary or functional office therein. In the same year he joined the Allgemeine SS. He never became a member of the Waffen SS. In February 1945 he was about to be inducted into this organization but the induction never materialized.

In 1939, the Society Sponsoring and Maintaining German Cultural Monuments was incorporated into the administration of the SS under the name of HS-1 (Main Department for Special Tasks). In 1940 Klein became chief of this department. In 1942 when the WVHA came into being, Main Department HS-1 was designated Amt W VIII with Klein as its chief.

Although Amt W VIII was definitely an integral part of the WVHA and answerable to Pohl, it is not apparent that it was active in any aggressive way or that it forms part of the pattern of concentration camp inmate exploitation. This office had no connection with SS industries. Its work fell rather into the category of cultural and social welfare. In addition to directing the affairs of the society above-mentioned, Klein also managed the Society of Convalescent Homes for Natural Recovery and Standard of Life which operated convalescent homes for women and children and administered SS hospitals. Then there were two other organizations under his charge, the Externsteins and the King Henry establishment, the former devoted to the preservation of an old Germanic early Christian relic and the latter to the maintenance of the Cathedral at Quedlinburg. All these activities could have been effectively pursued outside the WVHA and they were not an indispensable part of the machinery of the WVHA. These organizations brought no monetary returns to the coffers of the Reich. The direct opposite is true, since they were subsidized by the State.

It has been charged by the prosecution that Klein was responsible for excesses in the labor camp at Wewelsburg, but the proof before the Tribunal exonerates Klein from responsibility in that connection. He never managed or directed this camp. Several former inmates of Wewelsburg testified in Court that they not only never saw Klein in the camp, but never heard his name mentioned. The evidence would further establish that the Wewelsburg camp was not controlled by Klein, but by SS Obergruppenfuehrer Taubert. Further, that in the construction job itself which was being done at Wewelsburg, the man in charge was the architect SS Standartenfuehrer Bartels. Bartels had immediate control over the 500 men employed here and Klein had no authority whatsoever over them. In addition, Bartels had a rank superior to Klein's.

The construction work at Wewelsburg, which had to do with the restoration of a castle, was ordered by Himmler and the chain of command from Himmler to Bartels did not even go through Pohl, chief of the WVHA. The only objective part played by Klein in this entire project was the acquisition of the site, but there was nothing in the plan of taking over the real estate which indicated to Klein that a forced labor camp would go into operation here. On the contrary, his only information was that the land was to be used for enlargement of the castle area and future SS settlements.

The prosecution has charged Klein with obtaining credit on the Dresdner Bank for the financing of the Wewelsburg construction work. But when Klein entered this financial deal, the credit had already been obtained at the bank, the initiative having been taken in this respect by General Wolff on Himmler's orders. The sums which were then made available by Klein were used by Bartels who, on orders from Pohl, was not required to make any accounting for them to Klein.

The Tribunal also finds that Klein's participation in the matter of the acquisition of the Lakowicz property did not involve the commission of a war crime or crime against humanity. The little part which Klein had to do with this acquisition followed in point time its confiscation by another Reich agency with which Klein was in no way connected.

Nor is there any connection between Klein and the pamphlet : "The Subhuman," placed in evidence by the prosecution. Although this unsavory document was published by the Nordland Publishing Company, of which Klein had at one time been legal advisor and Prokurist, his connection with this organization had been severed a year or two prior to the appearance of the pamphlet.

Although Klein was a member of the SS, his conduct and attitude as it has come to us through the evidence did not reveal any fanatic adherence to the Nazi ideology. In point of fact, he got into personal difficulties himself because of his failure to cooperate wholeheartedly with the Nazi program. On 1 October 1944 he was arrested because of a statement he had made criticizing certain practices of the Third Reich and the SS. An immediately ensuing illness which kept him confined to his home under guard and under observation saved him from trial and a possible severe penalty. His own sister, Frau Helga von Rouppert, was also arrested, denounced by the Gestapo, and committed to the concentration camp at Ravensbrueck. Her crime also consisted of derogatory remarks against the Reich. One specific statement had to do with her criticism of the German generals for not having deposed Hitler as the Italians had ousted Mussolini. Frau von Rouppert testified in Court and stated that her husband was also persecuted by the Gestapo, and, in order to avoid arrest, with attendant torture and degradation, committed suicide. Klein states that his own father died as the result "of all this excitement."

From all the evidence in the case the Tribunal concludes that Klein is not guilty under counts two and three of the indictment.

COUNT FOUR

Under the interpretation of the IMT decision, pointing out the factors required to convict an SS member of criminality, the Tribunal concludes that Klein does not fall within the category specified and therefore finds him not guilty under count four.

[Signed] ROBERT M. TOMS
Presiding Judge

[Signed] FITZROY D. PHILLIPS
Judge

[Signed] MICHAEL A. MUSMANNO
Judge

NMT vol. 5, pp. 1059-1062
http://www.mazal.org/archive/nmt/05/NMT05-T1059.htm

I was unable to find the judgment on SS-Oberfuehrer Karl Engert in the Justice case on-line.

[Manstein]

Thanks again for the info. David, it gives me a better understanding of the sentencing at Nuremberg.

[David Thompson]

Anytime, Manstein. I always appreciate your informative posts over in the ABR section of the forum.

[Manstein]

Thanks, David, your posts are also great, very informative and they list all sources.