This was one of the most obviously malevolent, vicious, and Criminal Orders ever issued by any army of any time. It called for the murder of Russian political functionaries and, like so much of the evils of the Third Reich, originated in Hitler's fertile brain. As will be shown, it was issued prior to the opening of the campaign against Russia.
On 3/30/1941, Hitler held a conference at Berlin with leaders of the Wehrmacht. Von Leeb was present. At that time, according to the summary contained in General Halder's Diary, Hitler said:
"Clash of two ideologies. Crushing denunciation of bolshevism, identified with asocial criminality. Communism is an enormous danger for our future. We must forget the concept of comradeship between soldiers. A Communist is no comrade before nor after the battle. This is a war of extermination. If we fail to grasp this, and though we are sure to beat the enemy, we shall again have to fight the Communist foe 30 years from now. We do not wage war to preserve the enemy.
"War against Russia. Extermination of the Bolshevist commissars and of the Communist intelligentsia. The new states must be Socialist, but without intellectual classes of their own. Growth of a new intellectual class must be prevented. A primitive Socialist intelligentsia is all that is needed. We must fight against the poison of disintegration. This is no job for military courts. The individual troop commander must know the issues at stake. They must be leaders in the fight. The troops must fight back with the methods with which they are attacked. Commissars and GPU men are criminals and must be dealt with as such. This need not mean that the troops get out of hand. Rather the commander must give orders which express the common feelings of his troops.
"This war will be very different from the war in the West. In the East, harshness today means leniency in the future. Commanders must make the sacrifice of overcoming their personal scruples."
This seemed to have caused quite a bit of excitement among those present who, of course, recognized it as being brutal, murderous, and uncivilized. After Hitler had made his speech and had departed to his inner sanctum, protests were uttered by the commanders to the effect [that] the extermination planned by Hitler would violate their soldierly principles and, further, would destroy discipline. Brauchitsch agreed with them and promised to express their opinion to the OKW and Hitler respectively. He tried through Keitel to obtain a change in the plans but was unable to do so. Subsequently, he lent his approval to the objections made by the field commanders, who, in some instances at least, expressed a negative opinion of the order to their subordinates and tried to avoid its execution as far as they could do so without peril to themselves. One of the means to ameliorate the brutality of the Commissar Order was the issuance by von Brauchitsch of what is known as the "Maintenance of Discipline" order hereafter referred to.
On 6/6/1941, the Commissar Order was issued from the Fuehrer Headquarters as "Top Secret. Transmission only by officer!" and was captioned "Directives for the Treatment of Political Commissars." It was as follows [NOKW-484, Pros. Ex. 56] [Document reproduced preceding in section VII, A2.]:
"In the fight against bolshevism it is not to be expected that the enemy will act in accordance with the principles of humanity or of the international law. In particular, a vindictive, cruel, and inhuman treatment of our prisoners must be expected on the part of the political commissars of all types, as they are the actual leaders of the resistance.
"The troops must realize:
"1. In this fight, leniency and considerations of international law are out of place in dealing with these elements. They constitute a danger for their own safety and the swift pacification of the conquered territories.
"2. The originators of barbarous Asiatic methods of warfare are the political commissars. They must therefore be dealt with most severely, at once and summarily.
"Therefore, they are to be liquidated at once when taken in combat or offering resistance.
"For the rest, the following directives will apply:
"I. Combat zone.
"(1) Political commissars who oppose our troops will be treated in accordance with the 'decree concerning the application of martial law in the Barbarossa area'. This applies to commissars of any type and grade, even if they are only suspected of resistance, sabotage, or of instigation thereto.
"Reference is made to the 'directive concerning the conduct of the troops in Russia.'
"(2) Political commissars as organs of the enemy troops are recognizable by special insignia - red star with interwoven gold hammer and sickle on the sleeves. (For particulars see 'The Armed Force of the USSR', High Command of the Armed Forces General Staff of the Army, Qu. IV, Section Foreign Armies East, (II) No. 100/41 Secret of 1/15/1941, Appendix 9d.) They are to be segregated at once, e.g., still on the battlefield from the prisoners of war. This is necessary to prevent them from influencing the prisoners of war in any way. These commissars will not be recognized as solders, the protection of prisoners of war by international law does not apply to them. They will be liquidated after segregation.
"(3) Political commissars who have not committed, or are not suspected of hostile acts will not be harmed for the time being. Only after deeper penetration of the country will it be possible to decide whether officials who were left behind may stay where they are or will be handed over to the Sonderkommandos. Preferably the latter should decide on this point. As a matter of principle, in deciding the question whether 'guilty or not guilty' the personal impression which the commissar makes of his mentality and attitude will have precedence over facts which may be unprovable.
"(4) In cases (1) and (2) a short message (message form) about the incident will be sent: (a) by divisional units to divisional headquarters (intelligence officer); (b) by troops directly under the command of a corps, an army, an army group or a Panzer group, to the respective headquarters (intelligence officer).
"(5) None of the above-mentioned measures must obstruct the operations. Methodical searches and mopping-up actions, therefore, will not be carried out by the troops.
"II. In the communication zone commissars who are arrested in the communications zone on account of a doubtful attitude will be handed over to the Einsatzgruppen and/or Einsatzkommandos of the Security Police (Security Service).
"III. Limitations of courts martial and summary courts - The courts martial and summary courts of the regimental and other commanders must not be entrusted with the execution or the measures as per I and II."
On 6/8/1941, von Brauchitsch sent out a supplement of two additional clauses to be added to the original, viz, to I number (1), "
Action taken against a political commissar must be based on the fact that the person in question has shown by a special recognizable act or attitude that he opposes or will in future oppose the Wehrmacht."
To I number (2),
"Political commissars attached to the troops should be segregated and dealt with by order of an officer, inconspicuously and outside the proper battle zone."
On 5/24/1941, however, von Brauchitsch formulated the Maintenance of Discipline Order, in which as a supplement to the Fuehrer Order it is said:
"Subject: Treatment of enemy civilians and criminal acts of members of the Wehrmacht against enemy civilians
"Attached Fuehrer decree is (hereby) announced. It is to be distributed in writing down to the commanders with jurisdiction of their own, beyond that, the principles contained in it are to be made known orally.
"Supplements to I - I expect that all counterintelligence measures of the troops will be carried out energetically, for their own security and the speedy pacification of the territory won. It will be necessary to take into account the variety of ethnic strains within the population, its over-all attitude, and the degree to which they have been stirred up.
"Movement and combat against the enemy's armed forces are the real tasks of the troops. It demands the fullest concentration and the highest effort of all forces. This task must not be jeopardized in any place. Therefore, in general, special search and mopping-up operations will be out of question for the combat troops.
"The directives of the Fuehrer concern serious cases of rebellion, in which the most severe measures are required.
"Criminal acts of a minor nature are, always in accordance with the combat situation, to be punished according to detailed orders from an officer (if possible, a post commander) by resorting to provisional measures (for instance, temporary detention at reduced rations, roping-upon a tree, assignment to labor).
"The CinC's of the army groups are requested to obtain my approval prior to the reinstatement of Wehrmacht jurisdiction in the pacified territories. The CinC's of the armies are expected to make suggestions in this respect in time.
"Special instructions will be issued about the treatment to be given to political dignitaries.
"Supplements to II - Under all circumstances it will remain the duty of all superiors to prevent arbitrary excesses of individual members of the army and to prevent in time the troops becoming unmanageable. It must not come to it that the individual soldier commits or omits any act he thinks proper toward the indigenous population; he must rather feel that in every case he is bound by the orders of his officers. I consider it very important that this be clearly understood down to the lowest unit. Timely action by every officer, especially every company commander, etc., must help to maintain discipline, the basis of our successes.
"Occurrences with regard to 'I' and 'II', and which are of special importance, are to be reported by the troops to the OKH as special events.
"[Signed] von Brauchitsch"
There are 340 copies of this order which, as noted, had attached a copy of the Fuehrer order. This apparently was given wide distribution, although the original Fuehrer order had a very limited distribution.
It is said the maintenance of discipline order was conceived by von Brauchitsch as a means of sabotaging the Hitler order, but it will be noted that in the quoted part of Halder's diary he has Hitler saying, "This need not mean that the troops get out of hand".
It seems to be conceded - if any concession is necessary - that this order was criminal. It has neither defender nor apologist. Instead of a straightforward and manly refusal to execute a criminal order, some of the defendants sought a surreptitious sabotaging and evasion of its enforcement. However, in spite of such rejection or opposition on the part of those in high command, the record contains a large number of reports showing the execution of commissars by units subordinate to various of the defendants, as will be shown in the discussion of the case pertaining to each. This would have been avoided had some of these commanders been sufficiently courageous to have forced the issue. This was not done. It was implemented throughout the army.
It is claimed that on some occasions at least, blown up, exaggerated, or even fictitious figures were given of the number of these functionaries who were murdered. But the cold, hard, inescapable fact remains that many were so executed in utter violation of the laws of war and of humanity.
Can these defendants escape liability because this criminal order originated from a higher level? They knew it was directed to units subordinate to them. Reports coming in from time to time from these subordinate units showed the execution of these political functionaries. It is true in many cases they said they had no knowledge of these reports. They should have had such knowledge. If they had expressed their opposition to and rejection of the Commissar Order, that the reports showing the carrying out of this order would have been shown to them by their subordinates is a conclusion that is inescapable. It was criminal to pass it down to subordinate units. When the subordinates obeyed the order, the superior cannot absolve himself by the plea that his character was so well known that his subordinates should have had the courage to disobey the order which he himself in passing it down showed that he lacked. Such a plea is contemptible and constitutes no defense.
