## Facts

- During World War II, Otto Ohlendorf and 21 other German officers served in the *Einsatzgruppen*, mobile units that operated behind German front lines as German forces advanced through Eastern Europe into the Soviet Union.
- The *Einsatzgruppen* were tasked with carrying out orders to kill persons deemed threats to Nazi Germany, including Jews and other groups labeled enemies of the regime (including Communists and Roma).
- As the units moved through occupied areas, they conducted mass executions of thousands of men, women, and children, often by gathering victims and shooting them in large groups.
- After the war, the United States tried the defendants before an American military tribunal sitting at Nuremberg under Allied Control Council Law No. 10 (the “Einsatzgruppen Case,” Case No. 9).
- The defendants were charged with: (1) war crimes; (2) crimes against humanity; and (3) membership in criminal organizations, including the SS, SD, and Gestapo, which had been declared criminal in earlier Nuremberg proceedings.
- At trial, the defendants argued that international law regulates only nations (not individuals) and therefore could not impose personal criminal liability on them.
- The prosecution relied on documentary and testimonial proof that the killings were large-scale and organized, and that defendants held command roles or otherwise participated in the units’ operations.

## Issues

1. Whether international law and Control Council Law No. 10 permit criminal punishment of individuals (not only states) for war crimes and crimes against humanity.
2. Whether obedience to superior orders or asserted state authority bars conviction for participation in mass executions of civilians.
3. Whether prosecuting the defendants under Control Council Law No. 10 was improper as retroactive criminal punishment.
4. Whether the *Einsatzgruppen* mass shootings of civilian groups in occupied territory constituted war crimes and crimes against humanity under Control Council Law No. 10.
5. What must be shown to convict a defendant for membership in an organization declared criminal (SS, SD, Gestapo), including whether membership must be knowing and voluntary.

## Decision

- The Tribunal held that individuals can be held criminally responsible under international law and Control Council Law No. 10 for war crimes and crimes against humanity.
- The Tribunal rejected the claim that international law applies only to states; it reasoned that international crimes are committed through human action and may be punished as personal offenses.
- The Tribunal ruled that superior orders and asserted *Führer* authority did not excuse participation in the deliberate killing of unarmed civilians; at most, obedience could be considered in assessing punishment.
- The Tribunal rejected challenges that Control Council Law No. 10 was an unlawful ex post facto measure, concluding that the charged conduct—mass murder and related persecutions—was already contrary to the laws and customs of war and general principles recognized by civilized nations.
- The Tribunal found that the *Einsatzgruppen* killing program constituted war crimes and crimes against humanity under Control Council Law No. 10, including murders of civilians in occupied territories and persecution and extermination directed at civilian populations.
- The Tribunal found Ohlendorf guilty on the charged counts (war crimes, crimes against humanity, and membership in criminal organizations) and imposed a sentence of death.

## Legal Principles

- International criminal law can impose direct liability on individuals for war crimes and crimes against humanity, even when the acts are carried out under color of state authority.
- Superior orders are not a full defense to plainly unlawful acts such as the mass killing of civilians; obedience may be relevant only to punishment in limited circumstances.
- Control Council Law No. 10 may be used to prosecute atrocities committed during World War II where the conduct charged was already prohibited by established international law; the law supplies jurisdiction and a workable legal framework.
- Mass shootings and related persecutions conducted as part of an organized program against civilian groups in occupied areas can constitute both war crimes and crimes against humanity.
- Membership in an organization declared criminal (such as the SS, SD, or Gestapo) can be punished where the prosecution proves knowing and voluntary membership, with the defendant’s role and knowledge relevant to guilt and sentence.

## Conclusion

United States of America v. Otto Ohlendorf held that *Einsatzgruppen* defendants could be personally convicted under Control Council Law No. 10 for war crimes and crimes against humanity arising from mass executions in the occupied East, rejected state-acts and superior-orders arguments as a bar to guilt, upheld the legality of applying Control Council Law No. 10 to such conduct, and confirmed that knowing, voluntary membership in organizations previously declared criminal could support conviction.


United States of America v. Otto Ohlendorf, 4 N.M.T. 411 (1947)