The other part which had been separated, those who had horses, went via Nikopol to meet me again, in Mikailowka.
Q I remember that explanation. Let's come to this point. Now the half of the Kommando with you, how long from the time that the Kommando split until the entire Kommando was more or less under your command again, how much time elapsed from the time it split in half until it came back together again?
A It was combined again a few days before I was released. Weather conditions improved, therefore, the Kommando, that is the other half with Dr. Bolte could come up from Dnjepr and come back to me, five hundred kilometers back. forces under your command, is that correct? you did they round up any Jews? German territory?
A I said already I was given an order to meet the 17th Army. That was the first time that I, similarly to the other Kommandos, was going to be attached to an Army unit. This immediate march was interrupted by a special task, because Partisans had been reported in the Dnjepr area and we had to fight them as they endangered the supply line. Incidents occurred of which I could not speak in detail yesterday or Thursday, namely that the other half who had the horses in Nikopol were stopped by the local Wehrmacht officers and had to fight together with other Wehrmacht units against Partisans in their hide-outs in the Dnjepr area. The other half with whom I was, about 6 or 8 November, arrived in Mirailowka with me. I myself at the other side made reconnaissance and combat operations; this was the only time I interrupted the march before I finally reached the 17th Army at last.
Kommando never had to carry out the Fuehrer order at all?
A Mr. Prosecutor, This is my personal opinion. There are several bases, the most important of them....
THE PRESIDENT: Mr. Walton, now please see that you get direct answers. We don't want a long discussion on philosophy. Now, put a specific question and see that you get a specific answer. days of October until some time in March your Kommando never had to carry out the Fuehrer order for the execution of Jews at all? same period of time when it was split off from the main body?
A I don't know. I did not hear what this Kommando did. It reported immediately to the group and before Bolte joined my in Fedorowka a wireless message was in hand already for a few days in which Bolte had been instructed to go to Simferopol Immediately to the group. But I believe that because of the situation in the territory which was similar to mine he would hardly have had the opportunity to apply the Fuehrer order.
Q All right, witness. Let's travel on to the crossing of the Jewish transport which is Document Book II-B, page 7 of the English, page 5 of the German, Document no-2837, Prosecution Exhibit 58. is found on page 11 of the English text and page 29 of the original. German? that what you mean?
Several pages later on, it says "Einsatzgruppe D - location Ananjew." incident which is referred to in the affidavit of your co-defendant Felix Ruehl which is in Document Book III-B page 76 of the English, page 121 of the German, and is Document No-4149, Prosecution Exhibit 169. Your Honors, I especially refer in that document to paragraph 3. Now the question I would like to ask you after you have read paragraph 3 of Ruehl's affidavit is this one and the same incident?
Court No. II, Case No. IX.
A. I would like to comment on this fact. It is not quite the same event. The affidavit of the co-defendant, Ruehl, refers, and can only refer to a small excerpt of what is mentioned in the entire report of the Document 2837.
Q. Well, what I mean is, it is the same transport of Jews, is it not?
A. I wouldn't like to assume that; it could not be the same transport. In Ruehl's affidavit there is an inconsistency it does not agree with this report, and my opinion, and also the opinion of Herr Ohlendorf.
Q. Let me ask you this, did you receive another transport of Jews from the Co-defendant Ruehl; were there two transports of Jews that you handled there near the Dnjestr River?
A. What we brought back, that is where Ruehl was the messenger was an order to the subkommando leader Mogilev, which he had to hand over, which said that the Jews were to be moved fro Mogilev, and on the other side, the part which I received as an order, that the Jews which had arrived and collected in Jampol should be brought across the bridge, that is, to make it possible for the Rumanians, that they be brought back to the other territory again. That is the same event. But these two reports contained in document , No. 2837, I cannot identify as the same.
Q. All right, Now answer the question, did you ever receive any Jewish transport of Rumanian Jews from the Co-defendant Ruehl?
A. I assume, and I cannot assume anything else, that they were those Jews who had come from Mogilev and were to be moved to Jampol, and were not taken over by Reuhl personally at all. As far as I know he had nothing to do with it, but the subkommando of the Commando 10-B in Mogilev moved them and crossed over quite alone without any guards.
Q. Crossed over into your territory, the EinsatzKommando 12 territory?
A. Well, to Jampol, where I found them.
Q. Well, this is part of the same Rumanian Jewish transport?
A. Ruehl's order referred to the same as my order. Ruehl's part was the first part and mine was the last one.
Q. Yes, it was the same Rumanian Jews that had been expelled into German territory?
A. I assume so. I cannot imagine anything else, but I cannot say, of course. What happened in Mogilev and what -
Q. I am not asking you what happened in Mogilev. I am asking you if you got from Herr Ruehl or Lippert a part of the Jews which you took over to Rumanian territory?
A. I neither talked to Lippert nor Ruehl about this, nor did I take anything over from them, but the Jews were moved, and I found them at Jampol. Probably they are the same ones. I did not ask them because there were no guards, no soldiers nor any Security Police with them. I did ask them where they came from. They said from Jampol, I mean from Mogilev.
Q. All right, what is your estimate of the number of Jews in this transport?
A. I estimated this figure, but I am not quite sure how many there were. I must say that, under the circumstances as they were at the tiie, I never tried to find out or to estimate how many there were, but I hope that the witness who has been found at the commando of the bridge will make a statement concerning this. As far as I know there were about 6,000 to 7,000. I don't want to tie myself down. That is not possible.
Q. About how many of this number were women and children that you saw there?
A. There were -- I can't estimate this either.
Q. There were some?
A. In any case there were women and children among them.
Q. Now, do you know why these Jews were expelled from their homeland by the Rumanians?
A. I have no idea. I assume that the Rumanians wanted to get rid of them and send them into the German Territory so that we would have to shoot them, and we would have the trouble of shooting them. We didn't want to do that. We didn't want to do the work for Rumanians, and we never did, nor at all other places where something similar happened. We refused it, and, therefore, we sent them back.
Q. You testified here that the Rumanians attempted to damaged the bridge across the Dnjestr River in order to prevent the return of these Jews, did you not?
A.. I said that I remember vaguely that the events in Jampol were such that because a few boards had been taken out it was quite impossible to take them across the bridge in Mogilev. I did not see this myself. I only remember it as as possible memory.
Q. Did you assume when you found out about the damage to this bridge that the Rumanians wanted to prevent the return of these Jews to Rumanian territory?
A. Of course, certainly.
Q. All right.
A. But the following played a part here. I could be expected, or it had already been determined, in view of the attitude of the Rumanians, that between the German and the Rumanian sovereign territory transfer of persons, of civilian persons, should not take place. I believe that hose measures which the Rumanians took, namely to sent the Jews across to German territory, were used as causes by the German Wehrmacht to tell the Rumanians not to do this in the future, but I assume -- although I am not certain -- that the Rumanians received instructions and they were told at last that conditions were to be the same as they had been before.
Q. All right. You said that you talked to the Jews that were camped around Jampol through interpreters and you could make yourself understood through similiarity of the language to German?
A. Yes.
Q. Did the Jews generally know that they were not wanted by the Rumanians?
A. No, I don't think so. They had to assume that the whole matter had been settled. They were very pleased that they were able to return to Rumania, and I tried to express this.
Q. Did they know any reason why they had been brought over into German territory; did the Jews themselves give you any reason?
A. That they wanted to return; they wanted to go home.
Q. No. When you went into the Jewish encampment and spoke to them, did you ask them why they were there in the first place?
A. Yes.
Q. And did you further ask them for a reason for their being expelled from Bukovina or wherever they came from?
A. I did not ask them about that. I only asked where they came from, that is, that they came from Mogilev, that they were the ones whom I had to accept and to lead across the bridge.
Q. Well, weren't they fully aware that the Rumanian authorities wanted to get rid of them, were they not, the Jews that you talked to?
A. Yes, I knew that before, but I also knew -
Q. No, not you, the Jews were fully aware that the Rumanian authorities wanted to get rid of the, were they not?
A. They knew, of course they had heard it, that they had been expelled.
Q. That is right. Now -
A. May I add this? I heard from German authorities that I had to bring them back to Rumanian territory....
THE PRESIDENT: Witness-
Q. (By Mr. Walton) Witness, I didn't ask you about that. I just wanted an answer to my question.
A. I believe it is incomplete....
Q. These Jews knew; these Jews knew that they were expelled or were unwanted in Rumanian territory, and you answered that yes. Now, will you explain to the Tribunal why, since these Jews knew they were not wanted in Rumanian Territory, why they were so anxious to go back into Rumanian Territory under your leadership?
A. They were not anxious. On the contrary they were glad that they were able to return home, and there I want to add that they were able to believe, in spite of being expelled before, because of the fact that we took care of them, that the matter had been settled with the Rumanian authorities and they were able to return home.
THE PRESIDENT: Do you suppose that those Jews were eager to get back into Rumania because they had learned of the Fuehrer Order?
THE WITNESS: I don't know, but they wanted to return home.
MR. WALTON: Your Honor--
THE WITNESS: I don't think that they knew anything about the Fuehrer Order and that they had an opportunity to hear about the Fuerher Order. I think that is quite impossible.
THE PRESIDENT: Well, Witness, I have here in my notes 8 Dec 47_A_BJ_24_6_Hoxsie_(Juelich) that you said the Jews didn't know that the Rumanians didn't want them.
Now, did you say that?
THE WITNESS: May I have that again, please?
THE PRESIDENT: That the Jews did not know that the Rumanians did not want them.
THE WITNESS: of course, that is right. Certainly, that is right, but they still had the hope and the expectation, since German offices took care of them, that their stay in their home had been settled.
THE PRESIDENT: Just a moment. I don't know whether you understood the question or not. You follow up with something that doesn't agree with you previous answer.
DR. HOFFMANN: The translation was incorrect, your Honor. You asked that the Jews did not know that the Rumanians did not want them, Is that what you said? Did they know that they had not wanted them?
THE PRESIDENT: That is right, that the Jews did not know that the Rumanians disliked them?
THE WITNESS: Did not like them? At what time? It depends. In connection-
THE PRESIDENT: Just a moment. You said that in your conversation with the Jews you learned that they were ignorant of the fact that the Rumanians did not want them.
THE WITNESS: Yes, that is right.
THE PRESIDENT: That is correct?
THE WITNESS: That is right.
THE PRESIDENT: Very well. Then Mr. Walton has asked you, and we would like to put it to you again, how could the Jews not know that the Rumanians didn't want them when the Rumanians had expelled them? If someone kicks you out of his house, you have reason to assume that they don't want you.
THE WITNESS: Right.
THE PRESIDENT: All right. How do you explain that?
THE WITNESS: I thought I had already explained in my previous reply that the Rumanian Jews knew that they had been expelled. At that time the Rumanians did not like them, out in the meantime we had taken care of them. They believed, therefore, that an agreement had been made between German and Rumanian offices, Wehrmacht agencies and others, and not the matter had been settled so that they could go back, that the reasons for expelling them had been eliminated.
THE PRESIDENT: I see.
MR. WALTON: Your Honor, in view of the lateness of the hour, I would like to go into this question in the morning from another angle. I think it would be a good place to stop.
THE PRESIDENT: Very well. The Tribunal will adjourn until tomorrow morning at nine-thirty.
(The Tribunal adjourned until 9 December 1947, at 0930 hours.)
Otto Ohlendorf, et al., defendants, sitting at Nuernberg, Germany, on 9 December 1947, 0930-1630.
Justice
THE MARSHAL; The Honorable, the Judges of Military Tribunal II. Tribunal.
DR. HOFFMANN: Your Honor, the Tribunal wanted to make a ruling today about the admissibility of an affidavit. I have asked my colleague, Dr. Gawlik, whether he would support me in this legal explanation.
THE PRESIDENT: Listen, Dr. Hoffmann, I think that you have a stronger support with all the respect we have for Dr. Gawlik. You have the Tribunal's support.
DR. HOFFMANN: Only because your Honor once described my colleague, Dr. Gawlik, as a professor. if that pleases the Tribunal.
THE PRESIDENT: Mr. Walton, do you have anything to add to what you stated yesterday with regard to the presentation of this affidavit prepared by someone now deceased end, thereby, depriving the person against whom it is to be used of the right of cross examination which is inherent in Anglo American procedure and in every system of justice.
Mr. WALTON: Yes, your Honor, I have a motion, or I am prepared to argue from the basis of twelve points on this motion as a matter of precedence at the Nuernberg Tribunals already set up, particularly in four cases - the medical case, the Milch case, the Justices case, and the Pohl case.
THE PRESIDENT: Let us try, Mr. Walton, to have precise precedence, and not general precedence.
Mr. WALTON: I can give them to you, sir. It is a little long.
THE PRESIDENT: What I mean is that we must have a duplication of facts, a co-defendant .....
MR. WALTON: Yes. I am prepared, if the Tribunal desires to hear me, I can go into that argument at the present time. was in the medical case and it involved document number NI-2057. It was the affidavit of Dr. Erwin Ding alias Dr. Erwin Schueler who committed suicide after giving the affidavit which is exactly the case in point here. This affidavit was admitted over objection and after argument as Prosecution Exhibit 283, the transcript of Case I for 6 January 1947, page 1093. The argument for the defense was, just as in this case, a denial of the alleged right of cross examination. The Tribunal referred to this affidavit, or to facts recited in the affidavit, in its decision which is found in the transcript of the case at page 11465 and page 11517. The Ding precedent has been followed ever since in Nuernberg until the ruling of the Farben Tribunal, and I might add, in that citation Mr. Justice Herbert dissented so it was not an unanimous decision. remember, document 3721-PS, Exhibit 41-A, an interrogation of Fritz Sauckel, who was executed as a major war criminal, was objected to by the defense, transcript of Case II 6 January 1947, pages 134 to 135. The Tribunal deferred ruling until it could confer with Tribunal I on the Ding precedent.
On 7 January 1947 Tribunal II admitted the affidavit,according to the transcript of the record, page 194, and stated, and I quote: "The Court has determined that under the Charter and Ordinance this exhibit is admissible. Its weight, however, in view of the peculiar circumstances attending it, is of course still for the Tribunal to determine. This ruling is made after a conference with the Judges of Tribunal I who had a similar problem presented and which made the same ruling as this Tribunal now makes." who committed suicide after having been sentenced to death by the IMT, was also admitted over objection as Prosecution Exhibit 311, transcript of said Case II 8 January 1947, page 280. The Tribunal again made appropriate references to the Charter of the IMT and Ordinance No. 7. Case III or the Justice case. Document NG-401, an affidavit of Karl Foch, deceased at the time of the offer, was admitted over defense's objection as Prosecution Exhibit 147. The Tribunal noted that "those portions which appear to be experiences of the witness, that is the affiant, will be considered." That quotation is taken from the transcript of Case III, 25 March 1947, pages 976 and 977. in Nuernberg was in Case IV, the Pohl case. This was document 3868-PS, an affidavit of Rudolf Hoess who at that time was being tried in Poland and could not be produced for cross examination. This document was admitted over defense's objection as Prosecution Exhibit 51. Judge Thoms as President of the Tribunal ruled "that the affiant could not be produced.
Therefore, the case is as much in point as where the affiant cannot be produced because he is dead. That is taken from the transcript of the Pohl case, pages 129 to 131. later admitted without objection as Prosecution Exhibit 297, transcript of Case IV, 17 April 1947, pages 571 to 575. In its judgment this Tribunal stated that it had received proof from Rudolf Hoess, transcript of Case IV, 3 November 1947, page 8069. taking up the Model Code of Evidence of the American Law Institute. I can go even further and take up precedence of the German order of 1870 of the Reich Gesetzblatt with quotations from that, if the Tribunal would like to hear it. Also, I would like, if they wish to hear further, to argue from both Control Council Law No. 10 and Ordinance 7. can go further into it if desired.
THE PRESIDENT: Mr. Walton, first, we are very grateful for the exhaustive manner in which you have treated this and apparently you have gone even further as you indicate. We would like to avail ourselves of what you have prepared, perhaps in the form of a brief. Just in passing, because this will have nothing to do with our decision on the matter - the Saukel, Goering, and Hoess affidavits scarcely seem to be exact duplicates of the situation before us because in each of those instances those affiants were subjected to cross examination. Saukel and Goering, as everyone knows, were defendants in a trial and most ample opportunity was given to everybody to cross examine them on the subject of the affidavit. And, in the Hoess case the same thing is true because he later was tried end he was under oath and the opportunity for cross examination was there. Foch one to which you refer.
MR. WALTON: Well, if your Honors please, I would like for the Tribunal to keep in mind that at the time Saukel and Goering, et al, were questioned on these particular matters there was no defendant in the case in which they were finally introduced. Therefore, there was no defense counsel to cross examine them in an interrogation.
THE PRESIDENT: That is true but none the less they were in the witness box end everything that they hid written and said was open to the world for inquiry, scrutiny, and interrogation. Whereas in this case the man makes up in affidavit and then seals the door for ever for any cross examination or inquiry on any subjects discussed by leaving the world. So, it is slightly different. However, we feel under all circumstances it is of great importance, Mr. Walton, and what we will do is to refuse the admittance of the affidavit now but when it comes to rebuttal, if you still desire to present it, you may present it for the consideration of the Tribunal. In the meantime you may prepare a brief on this subject because you have other material and if you submit it to the Tribunal we will be happy to receive it.
The same thing is true with the defense. Dr. Gawlik, anything in the way of legal precedent you have can be submitted to Dr. Hoffmann and we would be happy to receive it and I think both sides should exchange briefs. In that way when it comes up in rebuttal, and that would be the proper time for the presentation of the document anyway, and at that time exclusively the subject can be treated and the decision rendered in accordance with the facts and in accordance with what the Tribunal deems justice in the matter.
DR. HOFFMANN: Your Honor, I only wanted to add for interest the fact that Dr. Gawlik who was in the doctor's proceedings as a defense counsel when the Ding diary was introduced based his appeal on - - -
THE PRESIDENT: There is one word that we don't have.
DR. HOFFMANN: In the doctor's trial Dr. Gawlik made a habeas corpus and sent it to the Supreme Court in Washington and he based it on the fact that the Tribunal I introduced this Ding affidavit.
THE PRESIDENT: Yes, but what did the Supreme Court do? the briefs. You might not used to wait until the actual moment of rebuttal, Mr. Walton, so that we can prepare and hand down a written opinion on this point for it is certainly important and might be helpful in other cases.
MR. WALTON: Very good, sir. I shell be prepared to proceed with my brief as soon as the record of today's proceedings are out so I can cite the Tribunal's deferred ruling.
THE PRESIDENT: It can be done in that why and Dr. HOffmann when you get Mr. Walton's brief I should be happy if you would immediately prepare your reply brief.
CROSS EXAMINATION(continued) BY MR. WALTON:
Q Witness, at the close of yesterday's session we were discussing that portion of document NO-2837 - I am sorry, your Honors, Document Book II-B, page 7 in the English - we were referring, your Honors, to page 11 of the English text which is Document NO-2837 and is Prosecution Exhibit 58.
This again is the crossing of the Jews over the Dnjestr River. Now, witness, if these Jews were aware, as from what you have said, that Roumanian authorities wanted to get rid of them why were they so anxious to return to Roumanian territory where they could only expect further difficulties and even danger to life itself?
A The Roumanians wanted to go home again. What happened to them over there and what reasons they had to come across I never experienced. These were not organized measures but obviously excesses and had occurred in Roumanian territories. seven thousand Jews in this unguarded camp, is that correct? stay in Jampol or refused to return to Roumanian territories?
A None of them. They all desired to return home. once you consigned them to the administration of the Roumanians? once you consigned them to the administration of the Roumanian authorities? nothing happened to the Jews but I saw how they walked up the road between the few houses on the other bank of the river, toward their home country. The Roumanian soldiers who were on the other side of the bridge let the people pass. That is all I saw. And because my mission was thus finished I immediately, that is, the following morning because it became dark so early, I returned back to Tscharnamin in order to report to the chief of the Einsatzgruppen that my mission had been carried out according to orders.
what the German policy was toward all Jews and particularly toward Russian Jews?
A I cannot tell you that. I did not talk to them.
Q Well, wouldn't your Allied Roumanians be in agreement with such a policy when they expelled Jews from newly conquered territories?
A I cannot say anything about that. The Jewish question at the time was not an European question. That can be shown by facts which have become known now. wasn't it. the campaign, that is, in order to secure the territory and the supply lines in combat with the Red Army, that is with Bolchevism. There was one special order which we got and which only referred to this and, as we know now, was not at all connected with all the measures which Eichmann had to carry out at a later time. Eichmann himself had nothing at all to do with Russia but this was an order which we were given under the slogan of "Barbarossa" in the entire Russian campaign. the Roumanians, that other disposition of this sect of people would have to be made later rather than driving them into, as the report of the incident so clearly put it, and I quote "the territory within the sphere of German influence", did it not?
A. I did not quite understand the question. Your words were fairly clear, but I did not quite get the interpreter. Will you please repeat the question?
Q. I will state the question a little differently. When you took these Jews back and turned them over to the Rumanian allies, did you do this for the purpose of showing these Rumanian allies that other disposition would have to be made of Jews than sending them into territory under German domination or under German occupation and control? Is that why you sent them back to Rumania?
A. No, I sent them back, to say it quite simply, just because I got the order. I did not think about it any further because it was not my own decision. This question would be justified if I had known the entire background and had therefore decided on such a measure. I had not got this problem previously. I only happened to hear about it, but I didn't know the extent of it, because I had not been in that territory otherwise. But I was called from Tscharnomin, which was far away, only to carry out this special mission on this bridge. Therefore, I cannot tell you anything about this further.
Q. Well, can you tell the Tribunal the reason why this order was issued by your chief, General Ohlendorf?
A. Why the Einsatzgruppe chief-did this, and what motives he had, I don't know . In any case he did not want to put up with it that Jews should be sent, or rather helpless people should be sent to the German territory.
Q. Was it not for the reason that it was his viewpoint that it was not the task of Einsatzgruppe D but solely the task of the Rumanians to dispose of these Jews, was not that the reason why he gave the order?
A. Certainly not. I am convinced that Herr Ohlendorf would also have sent back other circles of persons who would have been sent to the territory and would have been a burden to us, because I heard that the Army strictly prohibited any civilian traffic -- that is the passing of any number or groups of persons from one bank of the river to the other bank, from one territory to another territory was prohibited.
Q. You have stated that the Fuehrer Order did not apply to these Jews as they were Rumanian citizens, have you not?
A. Yes, that was an assumption. I did not check up on that. I only wanted to say people who came from Rumanian sovereign territory don't concern us.
Q. Were these Jews less dangerous to the security of the German Armed Forces simply because they were not Soviet citizens.
A. That question does not play a part here at all. What mattered here there were no houses to accommodate large numbers of people who had been sent over to our territory, so that we could not help them under those circumstances. That is the only reason, and it is a burden, if you cannot take care of them and not house them -- We had no organization at the time like the U.N. who looked after these people. We had too few soldiers, and the rear Army territory had to remain in security and in order without too much effort, without too many people.
Q. All right, Witness, now you have explained the answer, let's give the answer to the same question. In your opinion, as a commando leader, were these Jews less dangerous to the security of the German Armed Forces simply because they were not Soviet citizens, or were they as dangerous as Soviet citizens?
A. At the moment I nevered considered this as a commando leader, but I simply had to carry out an order of the Einsatzgruppe Chief, which I had to do in respect to security. How much it would endanger the security I never thought about. Apart from that you must consider the fact that I had been in Russia only for a few weeks and knew nothing about this kind of thing.
Q. All right. Now that you think back on it and are able to judge now, from the facts you observed then, were these Jews less dangerous to the security of the German Armed Forces just because they were not Soviet citizens?