The Tribunal is again in session.
DR. KOESSL: Dr. Koessel for the defendant Ott.
I ask that the defendant Ott be excused from tomorrow' session, that is, in the morning to prepare his defense, and in the afternoon for a visit of the dentist.
THE PRESIDENT: The defendant Ott will be excused from attendance in court tomorrow in accordance with the request of his counsel. testify as follows:
THE PRESIDENT: Defendant Fendler, there was apparently an error in the interpretation of a question, or rather, an answer made by you to a question, which in all fairness should be corrected in the transcript. On page 4073 of the transcript you were asked: "When you arrived in Pretsch, weren't you for a few days in command of Einsatzkommando IV-B?" To which you replied , "No". The reason that question was put to you is that, when your attorney first questioned you on the matter - - - D r. Fritz, do you have that page when he was first asked about reporting? Yes, this is it, on page 3992 of the transcript, we find this: "Finally Einsatzgruppen and Einsatzkommandos were set up. personally was sent to Sonderkommando IV-B as its commanding officer. The then Government Counsellor and Sturmbannfuehrer Hermann was then designated as leader of the Kommando." We had the film checked, and it is apparent that an error was made, because of perhaps your failure to pause between one part of your declaration and the other part. The correct interpretation should be, "I myself was assigned to Sonderkommando IV-B to the leader of which the then Government Counsellor and Sturmbannfuehrer Hermann was appointed." Is that correct?
A. Yes, your Honor, that is the way it should be.
Q. So that you were at no time the commanding officer even for the shortest period of Sonderkommando IV-B?
A. No, no.
Q. Then you will recall that a question arose as to whether you were familiar with the reasons for the execution of certain individuals. we were of the impression that you had stated, you didn't know why these executees were killed, and the reason we were of that impression is that you had said, according to the transcript, page 4017: "I only know that in Kremenchug shortly before the commando left for Poltava, an execution was carried out. What kind of persons they were, and how many they were. I can not say." Do you remember having said that?
A. Yes.
Q. Well, then after you were questioned about the soldiers who were discussing the execution, you indicated that these soldiers had not told you why the execution had been carried out, and that you had not stated that you didn't know why the victims were killed. So we call your attention to that statement in the transcript where you said: "what kind of persons they were and how many they were, I can not say." Do you recall having said that?
Q Then again on page 4071 the transcript shows "As I have already said on Saturday, I heard about it in Kremenchug that one execution took place but I don't know what people were concerned there." Do you recall that?
A Well, that's the way I might have said it but I don't remember the exact wording. your testimony caused the Tribunal to believe that you did not know why these people were killed and we questioned you at great length as to why they were killed when you were telling us that the members of the squad who had done the killing were talking about it. Then you said that you thought that we were asking you if these people had told you, if these other soldiers had told you, as to why they had done this killing but the general impression was that you did not know. Then after all this questioning you said, "Well, of course, I knew because it was very obvious why they were killed. It was in retaliation to some murders done. Now we call your attention to some points in the transcript where you said definitely you did not know why they were killed. clarify this, this whole mistake does not refer to the executions in Kremenchug but to those in Tarnopol.
Q Well, where were these 20 to 30 shot?
A That was in Tarnopol. Perhaps my attorney can give you the place in the English transcript. I think he had the page before.
Q Can you give it to us, Dr. Fritz? described as follows: I said that I had heard that 20 to 30 people had been shot in Tarnopol. Thereupon, Your Honor asked me whether I was told why these people were shot. I said thereupon, "No, I did not know, or pardon me, not that I didn't know but that I was not told."
That is what I said . Thereupon you asked me a few sentences later whether I knew why these people were shot. Then I said, "Yes, these people were shot as a reprisal measure because of the murder of German prisoners of war who were found in the Tarnopol prison". And I added that this was an assumption and a conclusion on my part, that of course this seemed to me a matter of course for me that this execution which was carried out in Tarnopol could only be connected with this incident of this murder of German prisoners of war.
Q On page 4014 you were talking about executions and you said, "I learned from hearsay that executions occurred." I remember at the moment -
In answer to a question you stated, "I learned from hearsay that executions occurred. I remember at the moment only one case that a figure was mentioned to me. It is possible that I knew at the time that I heared about it, that I had forgotten in the meantime. "Then you stated that 20 to 30 persons were mentioned. You had indicated that you did not remember and then immediately afterwards you said 20 to 30 were killed. Now, was it that you then suddenly recalled or worked out logically in your mind that 20 to 30 had been killed?
A well, I cannot explain, Your Honor, and I still haven't found the place in the transcript in order to read it in the German text in which connection I said the first - I knew from the first, and I think I said it in an interrogation already that I had heard that in Tarnopol 20 to 30 persons were shot by Special Kommando 4-B. tion?
Q Well, now I call your attention to page 4077. That's in the English. Can you find that in the German? You were asked, "How did you know 20 or 30 were killed? A. A lot was said about it in the Kommando at the time because the men were excited about the fact they had to carry out an execution."
Does it appear that way in the German?
DR. FRITZ: In the German record it is page 4152.
A Did I get you right, 4152? Yes, I found the place, Your Honor. BY THE PRESIDENT: it does in the English?
A In the German text it is not evident. In the German text there is only the objective,statement that something was said about executions in the Kommando, otherwise nothing. A statement as to whether these discussions took place before or afterwards cannot be gathered from this passage in the German text. And I would like to point out, Your Honor, that a few passages later - I hope I will be able to find it - I myself said in this connection that I learned of this execution afterwards. I would like to call the attention of my attorney to this - 4157 in the German. stand, to clear up these discrepancies and to find out if you did at one time say that you heard about the execution before and later stated you heard about it afterwards. If there is a mistake in the transcript we want to correct it. So, that's the reason we want to know what you said. On page 4077 please read it in the German. Read it slowly.
A I beg your pardon. "A lot was said at the time in the Kommando about this execution, because the men were very excited about the fact that they had to carry out an execution". It says here as far as the tense of the verb is concerned - "had had to carry out execution". This is the pluperfect - past. execution was carried out?
Q Did you hear about it before?
Q So that you only heard about it after?
Q Now I call your attention to page 4-68 in the English. Can you find that? Perhaps I had better tell you what it is first and then you can locate it.
"Q. Do you remember the execution? A I remember to have heard at the time that an execution would be carried out or was carried out."
Have you found it, Dr. Fritz? Not yet?
DR. FRITZ: Your Honor, in the German text on page 4143, the last line. BY THE PRESIDENT: Will you read that please, witness?
A One moment, please. "How many people were executed in that execution which you remember took place at that time?" Is that place, Your Honor?
Q Yes, yes. Then you have
AAnd this place refers to the execution in Kremenchug. In other words, it is a completely different incident.
Q How many were killed in the execution in Kremenchug?
A I cannot say; I don't know, Your Honor. it, but at that time I didn't hear it, in order to be precise about it. tion, as being familiar with the details, and you stated that twenty to thirty people were killed at that one execution, and isn't it? Weren't we talking about that execution? The first execution about which we spoke before was the execution of twenty to thirty people in Tarnopol. That was about the beginning of July. And now the last reference which Your Honor has made referred to an execution which took place between the 13th and 26th of September in Kremenchug, a completely different incident. Tarnopol?
the execution?
Q And they told you that they had conducted this execution?
A Yes, Your Honor;
Q This was in Tarnopol? about it in Tremblova, which was the next garrison.
Q Well, didn't you hear about it just when it happened?
Q How long after the execution did you learn about it?
THE PRESIDENT: Well, we merely called you to the witness stand to have the record very clear upon these various point. Do you have any questions, Dr. Fritz?
DR. FRITZ: Your Honor, I have no questions to ask the defendant Fendler. In reference to the execution at Tarnopol, however, would like to draw the Court' attention to page 4082 of the English transcript. On the middle of the page the defendant Fendler answered a question by saying, "I heard about this execution in Tarnopol afterward, Your Honor," That is to say the defendant Fendler gave the same description then as he did now.
THE PRESIDENT: Yes. Well, we had called his attention to that one statement where it seemed rather clear he knew about it before, but now he tells us that that was a different execution. It wasn't so clear at the time that he was talking about another execution because he had maintained throughout the testifying that he only knew of one execution in any detail. he had heard of six others, six or seven others, but there was only one that he was familiar with and knew how many had been killed and why they had been killed, and the burden of the interrogation was directed entirely, at least so we thought,too this one execution of which hear had some detailed knowledge, but apparently he was thinking about another execution and that is what brought about the misunderstanding.
BY THE PRESIDENT: Tarnopol. How is it that you tell us only twenty to thirty were killed there? Your Honor. I cannot say anything about the others. I know that in Tarnopol people mostly of the Jewish race were killed by excesses of the Ukrainian population under the German Army, but I did not hear at that time how many people were killed. I only heard now from the situation report that this was supposed to have been 600.
Q You only heard there from twenty to thirty at the time? ted 600 Jews.
A I don't think so, your Honor. Isn't that an error? If I am orientated correctly it says in that passage that the Kommando liquidated 127 persons, and in the course of the excesses 600 people had been killed.
Q I will read it to you. "Einsatzkommando 4-B has finished its activity in Tarnopol. 127 Executions. Parallel to the, liquidation of 600 Jews in the course of the persecutions of Jews as induced by the Einsatzkommando." So that the responsibility would seem to rest on the Einsatzkommando, wouldn't it? prosecutor I already made a statement about this. he asked me what I had to say about this. I was only able to tell him that I am not informed about it, that I have no knowledge that the excesses in Tarnopol which led to the killing of 600 people were instigated by Kommando 4-B, that I heard about it only here through the situation report.
Q Just one more question. Did any of these members of the Einsatzkommando who participated in that execution tell you why they had killed twenty to thirty?
I will tell you why I am asking you that question. On page 4081 in the English transcript you give three different answers to that question, so we would like to have you tell us which of the three you stand upon, provided the transcript is correct. Will you please look for that, Dr. Fritz? The first question is, "And in all this excitement, and in all this talk, no one ever said 'We killed 20 to 30 people because of the murder.' Is that what you want us to believe?"
Do you find that?
DR. FRITZ: Yes. BY THE PRESIDENT: question with "I cannot say. In general maybe somebody did." Then later on the question was, "Well, you said everybody was talking about them. You did hear someone say that men were executed because of the murders which had occurred in the prison, is that right?" His answer now is "No". Then he was asked, "In all this discussion, in all this excitement, no one ever said why these 20 to 30 had been killed, is that right?" And the answer is, "I cannot remember", so that we have the three gradations; one that no one said that, very emphatically, the other maybesomeone said it, and then the witness doesn't remember whether anyone said that or not. Now, which one do you stand on?
A May I look this passage over, Your Honor? I just found it.
the impression that these are three different answers to one question, rather I have the impression that I understood the question of your Honor to mean whether anything was ever said about it at all, why these 20 to 30 people were executed, where no reference is made as to whether this was said to me. That is my first answer. he did not need to have given this explanation to me. learned of the execution, two days after the execution, these soldiers were talking about having participated in the execution, so I asked, 'and in all this talk no one ever said, We killed 20 to 30 people, "then you answered, "I cannot say in general, maybe somebody did". Now, in that answer, you say, "Well, perhaps someone did". Then we ask you again, "Well, then, someone did tell you then why the executions took place. you replied, "he wouldn't have had to give this explanation to me". Then we put to you, "Well, you said everybody was talking about them, you did hear someone say that the men were executed because of the murders which had occurred in the prison, is that right". You now say, "No", that is, no one talked about why they had executed these individuals, Then comes another question, "In all this discussion, in all this excitement, no one ever said why these 20 to 30 had been killed, is that, right", then you say, "I cannot remember." Now, upon our reading of that, you give us three different answers, one that perhaps someone did explain why the executions had occurred, another, "No, no one made that explanation," then a third answer you give is that, "well, I don't remember". That is the way we read it. If we don't read it correctly, that is the reason we called you to the witness stand, to explain it. that from the transcript before me, it is evident that I answered your question, namely, "during all this excitement and all this discussion no one ever said, "We executed 20 to 30 people because of this murder, Do you want us to believe that, no one ever gave this explanation" that I did not understand this question of yours to refer to my person, but that I understood it to mean the way it can only be understood in this context.
you asked me whether I was of the opinion that not any one of those who spoke about the execution didn't also mention why these people were shot. That is quite general, not referring to my person. That is how I understood your question, your Honor, and that is how I answered it in general. I asked that you regard the word "general", consider the word "general" possibly in the sense that one didn't give an explanation generally. as to whether anybody explained why he committed the murder, that naturally I would be asking you if he mentioned it so that you heard it. You couldn't be responsible for what he said to somebody else. I think the tenor of the question is very clear, that is, with regard to whether you had heard anyone say why they performed the execution. Wouldn't you say that is the normal interpretation of that, and in all this excitement, and in all this talk no one ever said, that is, no one ever said -provided you heard it, but any how, you proceed with your explanation.
A That was the first version your Honor. Then you ask me, "but now you have said that everybody spoke about it; you just heard from hearsay that people were killed because of the murders that occurred the prison, is that right?" Then I said, "No, Your Honor."
Q Well, we have it here, "You did hear someone say that men were executed because of the murders, "is that the way it appears in the German, "You did hear someone say that men were executed because of the murders which had occurred in the prison, is that right?"
Q Then you answered that "No".
A "During this entire discussion and naturally this excitement, no one ever said why these 20 to 30 people were shot, is that right", thereupon I said, "I cannot remember". Again I considered this generally.
Q Well, you had said just immediately before that, "No one had said it", then you said -
A Pardon me, for interrupting, "to me", I mean. they be saying it except to you, that is, within you earshot -- within your hearing? that I would pass two people who were conversing and during this occasion I might have accidentally heard them talk about it without their directing their words to me. I never intended that you tell me if any of the participants had said to you, "Herr Fendler, we killed these people for that reason", we were only asking you if in all the discussion which wasn't with you, but just generally, they hadn't said why they killed these people. That is the whole tenor of the questioning. And on that question as to whether you heard why they had killed anybody, as we read it, you gave three different versions, one, they did not mention it; two, they may have mentioned it; three, you don't remember whether they mentioned it or not. That is the way we read it.
A Well, your Honor, I beg your pardon. At the moment I am not in a position, or I see no way in explaining this to you in any more detail, but I beg your pardon, if I say that according to me and according to the version I have, II see no contradiction in is possible. If one discusses it, it might be quibbling, but I would like to add that II think quibbling was not my purpose at the time nor is it now. If I had correctly understood the sense of your question, I would have certainly made an effort to give you the definitive answer, the clear answer which you expected.
was to perhaps indicate that our questioning of you at the time had a certain reason, and that it wasn't done nearly to harass you on the stand. The main subject of discussion was whether you knew why these individuals were killed and we got the impression all the time that you had said you did not know, and that is the reason we began to question you asto why you couldn't have learned in all the conversation as to why they were killed and then you said, "Well, I thought you were merely asked me whether I had heard from the whether they had told me," but that you did know why they were killed because it was very obvious. Now, the reason we got the impression that you had said that you did not know why they were killed, and that is what precipated the whole question, is because on page 4013 of the transcript in the early part of your examination, this is what you said, according to the English transcript, on page 4013, Dr. Fritz, of the English, "He, the commando chief, reserved the right for Einsatzkommando 4 B for all executions which might become necessary. During the assignment I heard that Sonderkommando 4 B did carry out executions, but I did not get any information how many persons were involved or what kind of persons they were". Now, if that transcript is correct, you will see, witness, that right at the outset of your examination you laid down the promise that you did not know how many persons were involved, what kind of persons they were, which naturally indicates that you didn't know why they were killed. So that impression remained in our mind throughout your examination, and then we began to question you as to why you did not know. Is that clear? this first remark in connection with what the commando chief announced about the power of command, about carrying out executions, that this generalization, if I may put it that way, was too farreaching.
In this connection, I just wanted to explain clarly that the responsibility for the ordering and carrying out of the executions rested alone with the commando chief, that on the basis of my own position and my activity, I got not knowledge, nor could I get any knowledge, as to who was executed and how many persons were executed. decisive in any way, but from this statement of yours that you did not know how many persons were involved or what kind of persons they were, speaking of those who were executed, it would be a contradiction then to say that it was obvious to you why certain people were killed, that you did know why certain people were killed because it was obvious. That would be more or less in contrast to this statement that you did not know how many were involved or what kind of persons they were. knowledge of these incidents, that I received no official knowledge of these executions. I did not want to give the impression, Your Honor, I beg your pardon, I did not want to give the impression that I had not perhaps heard about the fact that executions had taken place. officially and merely learning of it indirectly, or unofficially?
PRESIDENT: Well, I think that is where evidently the misunderstanding occurred. Dr. Belzer, we will give you that sign that you are so eagerly awaiting tomorrow morning at 9:30.
DR. ASCHENAUR: Your Honor.
PRESIDENT: Yes, Dr. Aschenaur.
DR. ASCHENAUR: May I reply to the statements of Mr. Walton and Mr. Ferencz tomorrow?
PRESIDENT: Dr. Aschenaur, do you think that is necessary? Your have indicated why you believe that these documents are relevant, they have indicated why they are irrelevant.
Now, if you reply to them showing that they are wrong, then they have the right to reply to you that you are wrong, then you will have the right to reply to that -sur-surrebuttal, and then next Christmas some time we will see Dr. Belzer coming up with a long beard saying, "Well, when are you going to listen to me".
DR. ASCHENAUER: Your Honor, as far as the technical matters which Mr. Walton has listed are concerned, I would like to say the following. The document, the originals are all correctly made out, and have the prescribed formula, and as required, they are certified by a notary public, or by an official, or by me, or by a mayor, or by an assistant of the defense, so that each regulation which is required has been fulfilled. Mr. Walton did not look at any single original and I cannot help any differences in the translation because the translation is only an auxiliary means of helping us.
PRESIDENT: Well, Dr. Aschenauer, I don't think that the Tribunal is much disturbed about the form of those declarations, if you tell us now that the originals carry the necessary authentication, that is adequate. We take your word for it. The only question which we will need to pass upon and we will in due time, is the relevancy and materiality. The competency, I think that we can tell you right now, that is, competency in the sense of authenticity of those declarations, I think that we can admit now. Your statement is on the record, and that is adequate for us.
DR. ASCHENAUER: One further request. I ask that the defendant, Ohlendorf, be excused from the session all day tomorrow.
PRESIDENT: The defendant, Ohlendorf, will be excused from attendance in court all day tomorrow and will hear Dr. Belzer in the morning, but not for all day tomorrow.
(The court adjourned until 0930 hours, 15 January 1948.)
of America; against Otto Ohlendorf, et al;
A. Musmanno, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
Military Tribunal II is now in session. God save the United States of America and this Honorable Tribunal.
DR. RATZ: Ratz for Radetzky.
Your Honor, I have a small request. I want to know whether I can start with the presentation of my documents after Dr. Belzer so that I can be prepared. Mr. Hochwald would be in agreement with my request.
MR. HORLICK-HOCHWALD: If the court please, inasmuch as the documents of Dr. Belzer and Dr. Ratz refer to the same subject and have also their main activity in Einsatzgruppe C, and both counsel will refer to the emergency decree of October 1938 and any decrees which led to the execution of this emergency decree, it would possibly be advisable to hear these two counsel one after the other.
THE PRESIDENT: Very well. Yes, then you will be next called.
DR. RATZ: Thank you.
DR. DURCHHOLZ: Durchholz for Schulz. excused from this afternoon's session to prepare his defense.
THE PRESIDENT: The defendant Schulz will be excused from attendance in court this afternoon.
DR. STEUBINGER: Steubinger for Braune.
Your Honor, since it may be assumed that it won't be my turn today to present my documents because only Document Book I is ready and the other is still in the filing department, I ask that my client, Dr. Braune, be excused from the session all day today.
THE PRESIDENT: Well, let's keep this in mind, that we are going to move along with these document books as rapidly as possible. We will hear what are ready. There can be no lull, no moment that will not be actually used in court in connection with the presentation of documents, because as soon as the documents are presented then we will hear the rebuttal. So I would appreciate it if you would stand by to follow Dr. Ratz with whatever you have available, and that applies to all of the counsel. Just as soon as we reach a point where there is no counsel here with any documents ready then we are going to go ahead with the rebuttal, because there will be no delay. Counsel have been informed over and over again about these document books, and we cannot tolerate any hiatus, and gap in the schedule of the presentation of the documents and the evidence which still remains to be presented in this trial.
DR. STEUBINGER: Your Honor, I completely agree to submit Document Book I, but your Honor said yourself yesterday that those colleagues should come first who have their document books complete and before me there is my colleague Mayer who wants to submit three volumes, and Dr. Belzer and Dr. Ratz.
THE PRESIDENT: Yes. Well, of course if they are here, let's see who we have here this morning. There will be Dr. Ratz to follow Dr. Belzer and then there will be Dr. Mayer, and which of your defendants are you representing this morning with document books?
DR. MAYER: Your Honor, I can submit my document books for the defendant Steimle and immediately afterwards for Klingelhoefer.
THE PRESIDENT: Very well. Now who else in the courtroom is ready with document books?
(no response)
THE PRESIDENT: All right, now if you would want to be available sometime later on in the morning with this one document book, we will be glad to hear you. If not, we will go on without you, just as you wish in that respect.
DR. STEUBINGER: Then I shall withdraw my request for the time being.
THE PRESIDENT: Yes, and then renew it whenever the opportunity suggests itself.
DR. STEUBINGER: Yes.
THE PRESIDENT: Very well. All right, you may proceed, Dr. Belzer.
DR. BELZER: Belzer for Graf. document book for the defendant Mathias Graf. The Tribunal will recall that the defendant Graf stated on the witness stand that because of the emergency war draft to the SD he was torn out of his profession as an independent businessman, and thus suffered great disadvantages. In order to confirm this statement of the defendant Graf as a witness in his own case, I submit documents Graf No. 1, Graf No. 2, Graf No. 3 as Exhibits 1, 2 and 3. These are the affidavits by Matthias Neubaur, the partner of Mathias Graf, that is to say the business partner, and the affidavits of Theo Stellwag and Georg Beyerlein who negotiated with Herr Graf as representatives of larger firms.
As Exhib it No. 4 I submit the affidavit of the former SS major and personnel officer in the Office I, SD, in Augsburg, with the SD sector in Augsburg. May states that he was the one who in January, 1940 -
THE PRESIDENT: What is the name, please?
DR. BELZER: The name? May, M-a-y.
THE PRESIDENT: And the document number?
DR. BELZER: Document Graf No. 4, Exhibit No. 4.
THE PRESIDENT: Yes. Please always give the document number.
DR. BELZER: May states that in January 1940 he was the man who was the cause of putting Graf on a war emergency status, I also submit Graf Document No. 5 as Exhibit No. 5. That is an affidavit of Anton Graf. This man is the brother of the defendant, Mathias Graf, who was at the time director of the SD branch office in Kempton. After this emergency war draft of the defendant, Mathias Graf, he was assigned to his brother as an auxiliary war employee. It is confirmed in this affidavit that Mathias Graf was put on an emergency war status, Furthermore, the statement of the defendant Mathias Graf is confirmed, namely, that in 1936, because of personal differences, that is lack of interest in the service, he had to leave the SS and that merely through the war emergency draft of the defendant Mathias Graf to the SD there was a new contact with the SS. Mr. Anton Graf further confirms that his brother, the defendant Mathias Graf, in the years 1940, 1941, made repeated attempts to get away from the SD and that all these efforts were unsuccessful. Mr. Anton Graf also confirms that his brother, while in the eastern assignment, was always only a noncom and never an officer. He also explains that on direct questioning his brother never told him anything about having participated in executions in the Einsatzkommando 6.