Is that total of 31,767 the correct total for the date of the report? compiled in Berlin and many mistakes could have happened. You said that you knew the total figures in the report. All right, we'll see if we can refresh your memory further. Will you turn in the same Document Book II-D to page 25 of the German, page 20 of the English, to Document NO-2825, to a report from Einsatzgruppe D, as published by the RSHA in Berlin, which shows that by the 12th of December, 1941, the total executions performed by Einsatzgruppe D, are 54,696 persons. Is this a reasonably correct figure for that time?
A I cannot say, Mr. Prosecutor. Berlin figured that out.
Q All right. The first five documents in this document book -
THE PRESIDENT: Mr. Walton, I would like to know whether he is familiar with the sentence which preceded the sum total of executions.
MR. WALTON: Very good, Sir, I will inquire into that. Q (By Mr. Walton): Under the paragraph marked "Shootings" it says that 2,910 Jews, plus 19 Communist officials were shot. Where did Berlin get this fact? These figures could have been sent on to Berlin by the Einsatzgruppe, but whether these are the figures I cannot say. I mean to say by this that here mistakes might have cropped up, but these figures were sent by the Einsatzgruppe to Berlin. I merely cannot say whether these are the very figures.
also sent to Berlin?
Q How do you know it was not?
A Because this was never done. Fritsch had the job to add up the figures for all the kommandos for the period covered by the report, and a place would be left open for this figure on the report, but otherwise no figure was provided for. sent to Berlin, is that what you say? or a month period was sent to Berlin, were they not? 1941 to June 1942, how many people were executed by Einsatzgruppe D? reported figures correspond with those which were actually executed.
Q Forget the reports. From your general knowledge, you know that some people were executed by Einsatzgruppe D, do you not? an approximate figure from you as to how many people in your best estimate Einsatzgruppe D executed?
AAny figure I would mention would be incorrect. I didn't see all reports for I had a chief who worked himself and who often made out reports himself.
Therefore this would give a completely wrong picture, since I did not know any list where the figures were compiled. says in his same affidavit, which I have already called to your attention in Document Book III-D, page 1 of the German, page 1 of the English Document NO-2856, and Prosecution Exhibit 148. Let's go back to paragraph 2. "In rare cases only," says General Ohlendorf, "if very important reports had to be written, I dictated them myself and later informed Seibert of the contents as a routine matter." Is this statement true?
DR. GAWLIK (Attorney for the Defendant Seibert) Your Honor I would like to point out a translation mistake. In the German document it says "customarily". "I later informed Seibert customarily of the contents," and, as far as I have just heard, the word, "customarily" which is very important and gives the sentence an entirely different sense was not contained in the English.
MR. HORLICK HOCHWALD: If your Honor please, "as a routine matter" covers the word "ueblicherweise". I do think it is there in the translation.
THE PRESIDENT: Well, whatever was said, the affidavit which we have before us reads "and later informed Seibert of the contents as a routine matter." Now, "as a routine matter" is different from "customarily".
DR. GAWLICK: Yes.
THE PRESIDENT: "Customarily" would mean "generally". "As a routine matter" -- it would mean"without exception".
DR. GAWLICK: Yes.
THE PRESIDENT: Very well.
DR. GAWLICK: I ask then that this be corrected, Your Honor.
THE PRESIDENT: Well, I think that the discussion, as it has now taken place, up to this moment, will all appear in the transcript and therefore it will be clear just what was meant.
Q (By Mr. Walton): I ask you, Colonel, if this statement is correct that General Ohlendorf made?
A The statement is correct, Mr. Prosecutor, for you must know that many reports were made out daily, that is to say, within a period of two or four weeks, a great number of reports were made out and these rare cases where actually secret matters were reported they concerned those reports which happened once or twice a month and it wasn't that I merely passed on these two reports to the Army which have been submitted here. There was a very large number of reports which I made out, almost all of which concerned themselves with my work as Chief III, but they do not appear here.
Q All right. We will return to my other question. From the information which you gained and which you were able to gather while you served with Einsatzgruppe D, according to your best recollection and belief, how many people were executed by Einsatzgruppe D from June 1941 to June 1942? or belief, because my figure could be incorrect. by Einsatzgruppe D? what I should say. Of course, I know that executions took place and I saw the figures in the various reports, but to give you a total figure, I cannot do it.
Q All right, I'll ask you this: Do not the total number of executions present a fairly accurate picture of the number performed by Einsatzgruppe D during the time that you were with the unit? kommando.
Q You mean that you won't say.
A No, Mr. Prosecutor, I am aware of the fact that my figure could be wrong and therefore I cannot mention any and I did not perform any service with a kommando and therefore I have no way of knowing the answer to the questions which you put to me.
an inspection trip? before this Tribunal make the statement that you had the authority to stop bad conditions of an execution? That's found on the transcript of the record, English text, page 730. You still insist that you did not have this authority to stop improper or bad conditions of an execution?
A I know of no such authority, Mr. Prosecutor.
Q All right, Let's go on to another subject. Is it true that the deeper into Russian territory that EinsatzGroup D proceeded the more difficult became the communications with Berlin? territory the difficulties of communications between the Kommandos increased did it not?
A Here I must make a difference. We were in radio communication with the Kommandos and we had radio communications with Berlin. These communications did exist but otherwise it was very difficult. For example, the Crimea in the first months of 1942 was always cut off and the Army had ordered that only ammunition could be brought to the Crimea. Otherwise no traffic took place. virtually a free hand in carrying out their missions in the area assigned to them?
A Mr. Prosecutor, this is a matter of interpretation. The Kommando leader was able to get in touch with Ohlendorf, by radio any day.
variance with the statement you made on 11 March this year. In that interrogation you stated they had virtually a free hand in the areas assigned to them. Now which one do you stand on, the one in the interrogation or the one you just made?
A I see no difference in that, Mr. Prosecutor. Of course, the Kommando leaders, after they had received an order, had the possibility to carry out an order the way it was appropriate in their area and as it was suitable to their division, etc. But, this does not exclude that in questions which the Kommando leader thought he could not decide himself he could apply to the chief by radio. I see no contradiction in this. the Kommando leader acted on his own initiative, did he not? gas van? parked in the courtyard at the headquarters in Simferopol?
A There was a gas van there. I saw a gas van but it was not there all the time. I do not know this exactly and by inquiring from the driver I found out it was the so-called gas van. van when they needed it?
that they might have turned to the chief. I do not know.
Q Did you ever dispatch the gas van to a Kommando?
A No. I never did that. was not there of dispatching this gas van? April. That's when I was on the staff by myself. Simferopol?
A I cannot give you the date. I could even be wrong in giving the month. leave the courtyard at Simferopol and then it would come back later? does not exclude that the gas van had been requisitioned and brought to the Kommando but in no case was it a continuous traffic during the periods which I was present. van in the courtyard at Simferopol, haven't you? later, was it not? in Simferopol?
Q It could have been there, you just don't remember?
A I do not know. I saw it one single time. It could have been there. There was a very large garage in the courtyard where all vehicles were kept.
that they had used the gas van?
A No, I did not see such a report. It never mentioned that - whether they were executed by the gas van or whether they were shot. The expression shot was used but I do not know that the gas van was mentioned.
Q Well, are you familiar with Himmler's order that women and children should be executed by gas rather than shooting which was published to your group in the early spring of 1942?
A I do not remember such an order as Himmler's order in this form.
Q Whose order was it? have described. the first place? but I did not see any express Himmler order to this effect.
Q Did you ever see anybody's order to that effect?
A Saw the order? Pardon me, I don't understand the question. women and children by the use of gas vans?
Q Well, didn't it excite your curiosity as to why the gas van should be there and didn't you seek to find out the reason for its presence in the courtyard in Einsatzgruppe D?
A I didn't bother about these things, Mr. Prosecutor. I know, of course, that people were to be executed by gas vans or I could unfortunately imagine it but I did not investigate the matter because it was none of my business.
saw situations which needed improvement didn't you offer suggestions for dealing with these situations to the Kommando leader?
A Prdon me, what conditions do you mean, Mr. Prosecutor?
Q All right. Suppose that the Kommando leader when you arrived at his headquarters said, "Colonel Seibert, I have a problem here which concerns the morale of my men. I should like your advice and counsel on it." Would you discuss such a matter with a Kommando leader? comradely fashion and would have given him personal advice but if I visited a Kommando leader it wasn't that he said, "Colonel, may I ask you this?" but the relationship was much more friendly, so that one was able to discuss it. getting worried about the fact that his execution squads seemed to enjoy their duties as an execution squad and asked for your advice about replacements, what advice would you give him?
A I didn't get the question. The Kommando was to enjoy the execution you mean? That is completely impossible. so many executions until it was the impression of the Kommando leader that these men enjoyed their duties. Now General Ohlendorf has testified here that he always saw that men who reached this frame of mind were shipped out of the group. Suppose this Kommando leader told you that this situation existed in his Kommando and asked your advice about getting replacements for these men. What advice would you give him?
DR. GAWLICK: Your Honor, I object to this question. First of all the question is so long I must say I didn't even understand it myself and there is great danger the witness may give an answer that may be wrongly understood because of the translation. First of all, I ask about a definite rule about hypothetical questions. According to German procedure hypothetical questions are inadmissable and I would like to refer myself here to rulings in criminal procedure - even in American criminal procedure hypothetical questions are inadmissable. What the witness should testify is what he did, what he said, what he saw, and only facts but he cannot imagine himself what he would have done if a, b, c, d, e, or f had happened. This is impossiple for one to demand of the witness and, therefore, I ask of the Tribunal that the Tribunal make a basic ruling about hypothetical questions.
THE PRESIDENT: Gawlik, have you ever read any standard work on evidence as presented in Anglo-American Criminal procedure?
DR. GAWLIK: Yes, "Wharton's Evidence in Criminal Cases".
THE PRESIDENT: Now, can you point out to the Tribunal any section in "Warton's Criminal Evidence" which states that hypothetical questions are not permitted?
DR. GAWLIK: Yes, I could do this if the book is put at my disposal.
THE PRESIDENT: All right, where did you see this book?
DR. GAWLIK: The book is here in the library but it is difficult for me to get hold of it, when I go to the library on Saturday and Sunday maybe.
THE PRESIDENT: All right, Mr. Walton will have that book available for you to persue during the recess, and when we reconvene I want you to read to the Tribunal the section you refer to where it says that hypothetical questions are not permitted.
( A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Professor Gawlik, are you ready now to give us the law?
DR. GAWLIK: I am sorry, Your Honor, there are three fat volumes, and I shall have to look at these fat volumes first. At the moment I have no objection to the actual questions until I find it. I only would like the last question to be put so that it is understandable to me; otherwise, I don't want to hold up proceedings for the time being.
THE PRESIDENT: Rephrase the question, Mr. Walton, and put it very briefly.
CROSS EXAMINATION (Continued) BY MR. WALTON:
Q. Colonel, if a commando leader felt that his members of an execution squad were no longer of any furhter use to him and he wished to have them replaced, would he informally discuss his replacements with you on one of your inspection trips?
A. That is quite possible, Mr. Prosecutor, that the commando leader would have informed me about it and would have talked to me about it. Yes, that is possible.
Q. And you would have discussed the matter with him, is that correct?
A. I certainly would have talked to him.
Q. And you would have given him that advice as to how to proceed?
A. If personally I had been in the position to do so and to give him some comradely advice I would have done so.
Q. Would you have also discussed the tactical situation, confronting the commando leader with him while you made a visit to his commando headquarters?
A. You mean the tactical situation, the military tactical situation, is that what you mean --Yes, we talked about it.
Q. Well, would the security tactical situation also be discussed?
A. It obviously happened when I talked to commando leaders that, of course, they informed me about the situation.
Q. Did you give them advice and counsel toward the solution of their immediate problems?
A. He did not expect me to do so because he was certain that such advice concerning security I could not tell him more than he knew himself because I wasn't an expert as far as that goes.
Q Who was the acting Commander when Ohlendorf was away?
A What absence are you referring to, Mr. Prosecutor? Commander? mentioned before, which sometimes lasted a week -- there was no deputy for him. When he was absent for a longer time, like the absence which was mentioned, he, as I have said, appointed as his deputy for their areas the respective commando-leaders. which is page 737, and which is in the English transcript of the Record at page 727. This is the cross examination of General Ohlendorf, and I ask you to look at the portion which is marked, and the question that was asked General Ohlendorf: "Who was the acting Commander of your group while you were away?" Do you see that?
A Yes, in the German transcript it says, "Who was during your absence your deputy in the Einsatzgruppe?" Yes,
Q All right, what was the answer?
A "The deputy in the staff of my group was the co-defendant Seibert." words? he was gone,does it not? statement unless it was true?
A I beg your pardon -- I didn't understand that question.
Q That is a true statement, is it not?
A The statement that during Ohlendorf's absence I was his deputy on the staff is correct, yes.
Q Isn't it a fact that due to yourposition or rank, you were well acquainted with all the duties and problems of Einsatzgruppe-D? because I held this particular rank, but they were just know to all the members of the Einsatzgruppe.
Q All the duties and all the problems?
A Excuse me. All the problems is a bit too far, Mr. Prosecutor. I have already stated that I could never say that I was acquainted with all problems, or all matters concerning Einsatzgruppe, for as I said, I wasnot present in a number of discussions which Ohlendorf had. Book III-D, page 1 of the English, page 1 of the German, which is Document NO-2856, and is Prosecutor's Exhibit No, 148; the same being Ohlendorf's affidavit. Let's look at page 2 of the original, which is the second complete sentence on page 2 of the original, and it says, and I quote: "Seibert wasacquainted with all the duties and problems within the framework of Einsatzgruppe-D." Is that statement true? the fact that one question might have cropped up that I didn't find out and I didn't learn about in some form or other, because it is quite impossible during a period of one year to say all questions and all problems have been made know to me. We would have again to discuss the term "problems."
THE PRESIDENT: I am sorry.
MR. GAWLIK: Mr. President, I think I found it. In the following words which are found in the volume of Wharton's, volume 3, it is page 1301, about cross examination. It says here: "Irrelevant, collateral, improper, or repetitious testimony," and it says the following, I shall translate it and I shall give it to the translators in case I make a mistake in the translation. "The cross examination should be confined to the question of factual questions, and should exclude questions concerning expressions of opinion, or speculative questions, or all argumentative questions, especially questions of an argumentative nature which call for an opinion or conclusions, or of some assumed knowledge of facts improper.
"And an exception so far as I know has only been made within scope of an expert when one can, of course, ask speculative questions of an expert, hypothetical questions based on facts. This is expressed here. It says here, it is maintained that a hypothetical question to an expert witness can be put in the cross examination, and it must be based on the basis of material which is offered in this particular case, and this is not the case here because he is not an expert witness. I shall not passit unto the interpreter, or to Mr. President, if you would like it, I shall show it then to the President.
THE PRESIDENT: Well, Professor Gawlik, what you have read is, of course, the law, and your interpretation is absolutely correct, and the best evidence on that is that the witness replied to the question which is now a matter of record, namely, the question put to him was of a factual nature. Mr. Walton asked the witness, what happened when he called on the commando leaders, what wasthe relation between then, and the witness stated, it was a very friendly one, and that they discussed what occurred. Then Mr. Walton askedhim, if the commando leader sought your advice in the matter of replacements, what would you have said to him. You see, it is purely factual, and it is entirely relevant. If Mr. Walton had said to the witness, now witness, suppose while you were in the wilds of Crimea, you were attacked by ten tigers, and you did not have a pistol, what would you do? Now that would not be permissible, because up to this point we have not heard anything about tigers in the Crimea. So long asit is based on facts in the case, a question such as Mr. Walton put is entirely proper.
Dr. GAWLIK: Yes, but it follows, Your Honor, that repeatedly the following happened. The witness said these things had not happened, and then he was asked if it had happened what would have happened, and I believe.......
THE PRESIDENT: Yes, oh ---
DR. GAWLIK: And I think in this case the question is inadmissible. I would like Your Honor to tell me whether I am right in this?
THE PRESIDENTS Yes, again, Dr. Gawlik, we go back to whether it is factual, if it is based upon what has actually been testified to, and it is entirely relevant, and the mere form of the question does not make it inadmissible, because in cross examination that is the only way you can arrive at the truth, because if you allow a witness to say that didn't happen, and you stop there, then you cannot delve into it any further, and there is no use having a cross examination; so long as it stay within the realm of the subject of discussion, questions of the nature which were put by Mr. Walton, which you call hypothetical questions, which are not really hypothetical questions, are entirely in order. However, I do not exclude to you, Dr. Gawlik, the right to object any time you feel that the question is improper.
DR. GAWLIK: Thank you, Your Honor.
THE PRESIDENT: You are welcome.
MR. WALTON: If it please the Tribunal, may I confer with the court stenographer to find what was the last question. I don't think the answer was complete.
THE PRESIDENT: Mr. Gallagher, will you please read that last question.
(Whereupon the last question was read before the Tribunal as follows)
"Allright, I can only call your attention again to Document Book Document No. 2868, and is Prosecutor's Exhibit No. 148; the same being Ohlendorf's affidavit.
Let's look at page 2 of the original, and it says, and I quote:
"Seibert was acquainted with all the duties and problems within the framework of Einsatzgruppe-D." Is that statement true?"
) BY MR. WALTON: before you?
Q Is that sentence quoted true?
A The sentence as quoted here is correct. I have already added to it that it did not exclude -- that it never could exclude that discussions took place, the contents of which I was not informed about, and, secondly, I do not know how far the concept a "problem" can be defined. Ohlendorf was away?
A I cannot answer this. It is quite possible that orders came, but I don't know. a commando? the order, that order would be given to the Commando itself. If, however, I had received it, I would, have passedit on to the authorities of the Commando. headquarters were located, there was one or more commandos nearby? your headquarters was there?
A In Simferopol itself there was Kommando-XI-B. The other units were according to my present estimate, the nearest commandos were at a distance of about eighty to one-hundred kilometers to the south, and to the east and to the west.
