Schultz states that each executee who fell under the rifles of his kommando had been thoroughly investigated and found guilty of participation in the massacre which proceeded his arrival. He
These Lemberg shootings, despite the defendant's explanation, still remain unexplained. Schultz states that 5,000 Ukrainians and Poles had been massacred by the Russians and that then the invading forces, which had already executed hundreds of thousands of Poles, took reprisals against the Jews for the murder of Poles. If the operation was a "reprisal" one, as the report states, the einsatz leaders would not have conducted investigations. If those executed were actually guilty of murder then the measure was not a reprisal but an orderly juridical procedure. Defense Counsel argues that Einsatzkommando 5 really had nothing to do with this affair:
" .....it was only to fire the shot, without having been consulted in any manner in the clarifying of the incidents which proceeded the shootings."
That should have been all the more reason why Schultz should not have proceeded with the execution. Shultz testified that German soldiers had also been murdered in the Lemberg affair, but he could not state how many. Hitler had ordered a reprisal measure and that seemed to suffice, The defendant admitted that he conducted the execution of those allotted to him without any report of their guilt. He was not even furnished with a list of the executees.
Following the Lemberg affair Einsatzkommando 5 marched on to Dubno and was successively at Zhitomir and Berditschew. On August 10, while at Zhitomir, Schultz was instructed by the Einsatzgruppen leader that Jewish women and children, as well as men, were to be executed. Schultz states that, in moral rebellion against the order, he left for Berlin on August 24, arriving there on August 27. He spoke with Streckenbach and asked to be relieved from his post, and he was assured that this would be done. He returned to the kommando on September 15, and turned over the unit to his
Whether Schultz was actually relieved because of his protestations against the execution order cannot be conclusively known, since the other participants in that discussion, assuming that it took place, are not available. It is true that he did give up his kommando in the latter part of September 1941. Whether this excluded him from responsibility for executions, however, remains to be seen.
Report No. 88 states that "between August 24 and August 30, Einsatzkommando 5 carried through 157 executions by shooting comprising Jews, officials and saboteurs". Schultz used his trip to Berlin which embraces the six days indicated in the report, as in alibi for this shooting. But if the operation was planned before he left, his absence would not exonerate him. The man who places a bomb, lights the fuse, and rapidly takes himself to other regions is certainly absent when the explosions occurs, but his responsibility is no less because of that prudent non-presence.
The fact that Schultz still regarded himself as commander of Einsatzkommando 5 even though he knew he intended to be absent while on the trip to Berlin is established by the fact that on the actual date of his departure, August 24, he ordered the kommando to move on from Berditschew to Skwira, 100 kilometers east of Berditschew, which removal actually took place on August 26. Schultz's explanation for this removal is a laudable one, if true. He says that he wanted to avoid that his kommando should come in contact with Higher SS and Police Leader Jeckeln who was set on execution of all Jews, including women and children. In any event, the fact remains that Schultz retained control of the kommando until the actual arrival of his successor in the latter part of September.
Schultz has denied knowledge of the Fuehrer-Order as such, but admitted that before leaving for Russia he heard Heydrich's speech in which Heydrich said:
"That every one should be sure to understand that, in this fight, Jews would definitely take their part and
that, in this fight, everything was set at stake, and the one side which gave in would be the one to be overcome. For this reason, all measures had to be taken against the Jews, in particular. The experience in Poland had shown this."
The expression "all measures" certainly put Schultz on notice as to what was expected of the Einsatz units.
The Prosecution has endeavored to charge Schultz with responsibility for the executions described in Reports Nos. 132 and 135. The former is dated November 12 and the latter November 19, so that if one allowed even the maximum of five weeks' delay in publication of the reports, these executions would still fall subsequent to the date Schultz admittedly left Russia.
However, Report No. 47, dated August 9, 1941 which describes the shooting of 400 Jews (mostly saboteurs and political functionaries) would be within the time Schultz was on duty in Russia. This report makes the further statement: "Einsatzkommando 5 shot an additional 74 Jews up to this date."
Report No. 94 definitely chronicling a period when Schultz was in command, even though absent on the Berlin trip, says: "Einsatzkommando 5 for the period between August 31 and September 6, 1941, reports the liquidation of 90 political officials, 72 saboteurs and looters and 161 Jews."
It has been insisted on behalf of Schultz that such Jews as were executed by his kommando were only those who had committed offenses entitling them to be shot and in this connection Dr. Durchholz said that the "perpetrators who were Jews, were designated only as 'Jews' in the reports of the Einsatzgruppe, upon orders from superior offices, that they were not to be listed as 'saboteurs, plunderers, etc.' "
The only authority for this statement is the defendant Sandberger whose handling of the truth was as careless as his review of the evidence in capital cases in Esthonia. The Tribunal now declares that the record is absolutely bare of credible evidence that those listed in the column headed "Jews" fell into any category
Dr. Durchholz claims for his client a liberal attitude towards Jews, but he adds:
"It goes without saying that he wanted to reduce again the tremendous influence of Jewry in his fatherland to normal proportions."
It was just this spirit of reduction to what the Nazis called "normal proportions" which brought about the excesses in Germany leading to disfranchisement, appropriation of property, concentration-camp confinement and worse.
In his final plea, Dr. Durchholz devoted some 20 pages to Schultz's activities prior to his Russian venture. He says here that Schultz was a competent police officer, that he was considerate and polite and was regarded as an "exemplary, modest, plain person who looked after his officials like a father." That the defendant is a person of innate courtesy has been evidenced in the court room, but the issue in this case is whether he lived up to International Law.
In this regard the Tribunal is forced to the conclusion that Schultz did not respond to the obligations imposed upon him not only by the International Law but the concept of law itself, of which, as a long police official, he could not be ignorant. In spite of this, however, it can be said in his behalf that, confronted with an intolerable situation he did attempt to do something about it.
The Tribunal finds from all the evidence in the case that the defendant is guilty under Counts I and II of the Indictment.
The Tribunal also finds that the defendant was a member of criminal organizations SS and Gestapo under the conditions defined by the Judgment of the International Military Tribunal and is, therefore, guilty under Count III of the Indictment.
Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 141 - 145 (original mimeographed copy)
April 7, 1998