Q That makes a church. Two people talking about religion makes a church. Now, did you have church services with your sub-kommando leaders and your commando members? tions from me on that subject which were valuable to him. At Christmas and on New Year's Eve I talked to my kommando in Rostov, and what I said on that occasion were not only masters dealing with outer matters, but inner matters which go deeply into the soul and the matters of the church and God. I know what kind of impression it made on my men. On Christmas Eve - in general I don't like to talk about this - Nehring came to me, took my hand, and said, "What you have learned, you have learned." What he was trying to say was, "You know how to deal with these things and can talk to people, in particular about these innermost things."
Q Did you have a religious service on Christmas?
Q That is a question. Now, answer it directly. Don't take us all the way to Russia. Just answer it directly, did you have a religious service in Russia on Christmas?
Q "Wherever there are two or three gathered together in my name, I shall be among then", says Jesus, and wherever people gather and talk about religious questions, that is a religious service.
Q Did you speak about the divinity of Christ on Christmas? your invisible church, every say to you, "I am in distress. I am being compelled to shoot people, and I have a struggle with my soul, and it is hard for me to do this. Can you assist me and give me comfort in this very difficult job which I have, to snuff out the lives of my fellowmen." Did anyone everyday anything like that to you? this. I mean, they knew what they did, that these judgments and these executions were done because these people were criminals, and had committed criminal acts.
Nothing unjust was requested of them,
Q Therefore it was a perfectly easy thing to shoot a man? soldier in the field does not find it easy to shoot the soldiers on the opponent's side. and night kill him unless he fired first, but in executions, you take the victim, you lead him up to a grave already dug, he looks into this hole in the gound, and he is shot in the back, so there is a great difference. There is a greater spiritual fortitude required on the part of the executor to do that kind of killing than there is to kill in the heat and the passion of battle. I think you recognize that. comfort and never once talked to you about executions. We will let it remain that way. Is that right? discussed in particular. with your men?
A I don't think so, no.
THE PRESIDENT: Dr. Bergold, will you please continue?
DIRECT EXAMINATION (Continued) BY DR. BERGOLD: deviated, so far, and talked about matters of the soul, this affidavit in which you stated that two to three thousand, executions were carried out by you. I now ask you, is the affidavit which was submitted to the Tribunal, is it correct in that form?
A No. This affidavit does not contain a great number of important points which I made in the general interrogation, and according to my conviction, I think, Your Honors, in order to understand me correctly - for example, during my interrogation I discussed in detail, as I have done here, what procedure was kept to until the death sentence was carried out. happened before the affidavit was set up, you made the following statement?
DR. BERGOLD: Your Honor, a moment, please. May I add the following to this? I have seen and read the record of this interrogation of the defendant. I know that this was a mistake, and I want to read something out of this affidavit, and I want to ask him whether he said this. I quote.
MR. HORLICK-HOCHWALD: Just a moment, please. Dr. Bergold, of course, is at liberty to ask the witness questions. Dr. Bergold hasn't got the affidavit, and he himself admits he read it by mistake. I don't think it is proper that he reads something out of the affidavit. He may ask the witness whether he remembered that and that, having said that and that, and in any case the witness was interrogated. It is not so long ago. If it is so important the witness will certainly remember, and I do think it is only proper that the witness says what the witness remembers, not what Dr. her Bergold remembers.
THE PRESIDENT: Well, is Dr. Beregold -
DR. BERGOLD: Just a moment, may I say one thing? I think that the defense has the same right as the prosecution, and I have been active here as a defense counsel for sometime now, and I can remember a lot of cases when during the cross-examination the prosecution asked the defendants, "Witness, is it right that during the interrogation you said, this or that, yes or no?" And in all these questions this manner of questioning was allowed. It is, therefore, my opinion -
THE PRESIDENT: We think in the first place, Dr. Bergold, your illustration is not a good one. I am not saying your point is not a mood one, but the illustration is very had because you are talking about cross-examination. This is direct examination. Anyhow, that point is out. Now, submit something else. That is not a proper illustration. That is cross-examination. You can cross-examine in the same way. How, give us your other reason.
DR. BERGOLD: A moment, Your Honor, please. Please tell me how one should do this? I am quite willing to receive some instruction, A person who has made a statement some months ago I want to ask him whether he has made it, because no one in the words has such a memory that he can verbally remember what he said during an interrogation several months ago, namely,in July, 1947.
THE PRESIDENT: The Tribunal is not yet aware of just what you are about to do, Dr. Bergold. Mr. Hochwald intervened, so we really don't know what you have here, and if you will let us know, of course, we will rule on it.
MR. HORLICK-HOCHWALD: If I may suggest, Your Honors, I had the impression from the question of the defense counsel for the Defendant Biberstein, that he wanted to put the answer of the witnessin the witness' month by quoting, that was something that was not in the document.
THE PRESIDENT: No, as I understood all that Dr. Bergold wanted to do was to read from the affidavit, and he certainly has the right to do this.
MR. HORLICK-HOCHWALD: I do think, Your Honors, that I understand probably I am mistaken - I did understand Dr. Bergold that way, that he wanted to quote something out of an interrogation which he read, an interrogation of the witness which he read which, however, is not in evidence, and which he admittingly read by mistake, by mistake of the prosecution, of course. So what he wants to do is to quote something which is not submitted in evidence and which is not before the Court.
THE PRESIDENT: Dr. Bergold -
DR. BERGOLD: One moment. May I add something? I, and I say this quite frankly, I want to prove here that this affidavit is not in order, Hey dear opponent already pointed this out yesterday in a letter, and he submitted, he agreed at the time I made the application, that this written record be submitted so that it can be proved that this affidavit is not in order. At the time the prosecution told me, no, we don't have to submit that, that is not the custom. But I have read the record and I know that things are contained in it which in my opinion should have been put into the affidavit, according to the principle which Lord Justice Lawrence announced in the IMT, namely that the Prosecution should order everything incriminating, as well as everything that is exonerating, heard. How I have no other way of doing this to prove the truth, that my statement is wrong. The prosecution told me that I should either withdraw my statement or prove it. I am just trying to prove it, but they make it impossible for me to prove it. I don't know what kind of method that is.
THE PRESIDENT: New, just a moment , Dr. Bergold. Here is an affidavit, and you want to attack this affidavit?
DR. BERGOLD: Yes.
THE PRESIDENT: All right, you question, the witness and you attack the affidavit. The witness is here. The witness certainly knows what are the facts and what are not the facts. Let the witness state what the facts are, not counsel.
DR. BERGOLD: Your Honor, may I point out one thing? My last question refers to the previous question. I asked him whether the affidavit was in order. He said, "No, for example the procedure was not recorded concerning the executions, although I explained it in detail." And now I wanted to show him these words which he said concerning this procedure during his interrogation, but it is impossible to do this verbally. Nobody can do that.
MR. HORLICK-HOCHWALD: If the Tribunal please, it is absolutely not necessary that the witness quote word by word what the witness said four months ago, but the witness certainly will know what the witness said four months ago, and, therefore, Dr. Bergold is at liberty to ask the witness what the witness knows, but Dr. Bergold is not at liberty to ask the witness what Dr. Bergold knows.
THE PRESIDENT: Dr. Bergold, suppose you and Mr. Hochwald have a conversation which lasts for two hours, and then after your conversation is ended you go into your office and prepare a statement which contains the salient features of the conversation. You go to Mr. Hochwald and say, "Mr, Hochwald, I would like to have a little record of what we talked about. You please read this. There is no use putting down all we said in two hours, because much is irrelevant, but these are the salient features. Now, please look at it. If you agree with it, all right; if you don't all right too." You look at it and Mr. Hochwald looks it over very carefully. Finally he says, "Yes, this contains the salient features," and he signs it.
DR. BERGOLD: Now-
THE PRESIDENT: Now, just a moment, Dr. Bergold. Then later on, you want to point out that there were other things said which are not in this document. Then you take the stand and you tell about the other things.
Now, that is the situation you have here. The witness was questioned for some time, and from what he said a paper was drawn up, and the paper was given to him to sign, and the paper very clearly indicates, "I have had the opportunity to make alterations and corrections in the above statement, and I make this declaration voluntarily without any promise of reward, and I was not subjected to any duress or threat whatsoever," Now, you have indicated that he wants to attack this, and he has every right in the world to attack it, not anybody else. Now, you ask him to point out wherein this affidavit is wrong, wherein it is incomplete, wherein he was compelled to make a statement against his wishes, wherein he was persuaded to say something which he did not agree with. The field is open, to him. There is no limit to what he can tell here from the witness stand, but it must be the witness,,
DR. BERGOLD: Your Honor, the example does not quite apply, because the witness said on one occasion already that he wanted to make corrections from the start, but too interrogator said he could do this later, and may I point out that Mr. Wartenberg, who was cross-examined by Dr. Ficht at my request, said it was possible, and he cannot deny it, that he told the witness that he could make corrections later on. That is shown in the record by the interrogation through Herr Wartenberg.
MR. HORLICK-HOCHWALD: As Dr. Bergold pointed out, there was a possibility to question Mr. Wartenberg on this particular subject. Dr. Bergold has another possibility, to question the witness on this subject, the two persons who were present. I do think that this should be completely sufficient to prove the point. There is no necessity to try to prove something which is not before the Tribunal, Your Honor, I only want to make for the record a statement as to the ruling of the IMT to which Dr. Bergold referred in his opening statement, and namely suggests the prosecution is compelled, Dr. Bergold said it was ruled before the International Military Tribunal that it should be the duty of the prosecution also to submit evidence which is favorable for the defendants, not only which implicates them.
Mr. Justice Jackson has vigorously objected to this motion of Dr. Bergold. But as far as I remember the ruling of the International military Tribunal was only that if a document is submitted in evidence it should be submitted in full. I don't know that the International Military Tribunal ruled ever that the prosecution has to submit documents which are in favor of the defense or-
THE PRESIDENT: Mr. Hochwald, if the International Military Tribunal did not so declare, this Tribunal will declare that whatever the prosecution has which is favorable to the defense must be submitted. Nothing will be permitted not to be presented which will be of benefit to the defense.
MR. HORLICK-HOCHWALD: If your Honor please, I don't want to challenge this statement. I only wanted to explain here what the International Military Tribunal ruled, nothing else. I did not want-
THE PRESIDENT: Well, if the International Military Tribunal said that, this Tribunal overrules the International Military Tribunal because it is not in accordance with the principles of justice that either side may retain anything which may shed light on the issues before the court.
MR. HORLICK-HOCKWALD: If your Honor please, I only wanted to clarify. I had not the slightest wish to request a ruling from the Tribunal on that point. I only wanted to clarify the statement of Dr. Bergold, and I am absolutely sure that Dr. Bergold agrees with me the procedure before the IMT. Is that correct?
THE PRESIDENT: We won't debate now what took place before the IMT. The IMT--It seems I am having trouble with the interpreters here. I will state a little more slowly so I won't get into trouble with my friends in the cage, that whatever evidence is available which will shed light on this most serious issue which we must decide must be presented. Now, so far as the present situation is concerned, Dr. Bergold, I would recommend to you that at least for the moment you question the witness and have him point out wherein the affidavit does not represent what he said or corresponds with the facts.
Have him point out where it does not go far enough, Point out where it is in error. Point out where he would *** add to it, and then he can also say, "I told this to the interrogator; he didn't put it in the affidavit." Everything.
DR. BERGOLD: Very well, your Honor, I shall try, but as far as I was informed, my client was interrogated for a very long time. He cannot remember all of that, the defense, all concerning that. I dad not want him to talk for too long, but I will ask him now.
Q (By Dr. Bergold) Herr Biberstein, can you tell me what is not contained in the affidavit and what seems important to you? in this affidavit, which was made in Nurnberg, it is not contained that the executees who were executed, by Einsatzkommando VI were cases where a crime had been committed and which had been dealt with in the proper manner, Because this is missing it gives the impression several of these executions would have been made arbitrarily. In my affidavit of Esel-Heide, this point is still contained, and I pointed out when the affidavit was made, and I referred to this affidavit in Esel Heide, and there I was told, "Yes, we know that," but as I said, it is not recorded and that is what I objected to, and then I said told, "Well, you can do that later on." But because this was missing, I was rather confused because I always told myself, "This will give the wrong impression," and that is how I explained to myself that some other points might have been overlooked but not completely. That is the point which states that one execution was carried out under my supervision. This word "supervision" I did not notice, I overlooked it. This is the execution which I witnessed.
THE PRESIDENT: Just a moment until we find that place in the affidavit, Will you point it out, Dr. Bergold?
DR. BERGOLD: Yes. It is on Page 2 of the original, Page 112, the first sentence on the top after the sentence with the 2,000 to 3,000 executions. There it says, "I personally superintended an execution in Rostov which was performed by means of a gas truck:"
THE PRESIDENT: Well now, you want to change that?
DR. BERGOLD: Yes, the defendant says that he did not express himself in that manner, and that he overlooked it because he was excited that so much had not been recorded, BY THE PRESIDENT:
Q Tell us just how you would word that? In order to have it correct, suppose that as you were reading the affidavit you noticed that this was in error, and you wanted to correct it. Just how would you state it instead of the phrase, "I personally superintended an execution"? Just how would you say that? Show him the affidavit, Dr. Bergold so that he can make the correction right here. Let him have the affidavit. Does he have the affidavit?
A No, I don't have it. As I already said during my interrogation at the time I asked Chief IV at the time to show me an execution by means of the gas van. I took part in this in order to gain an impression about this manner of execution. This was Chief of Department IV.
Q Well now, you have used the phrase, "I took part in this ,"
Q Then your correction is you did not superintend it; you merely witnessed it?
Q So that if we change for the word "superintended" the word "witnessed" then that would correctly express your thought, would it?
Q The correction will be made. Are there any other errors or incomplete statements?
MR. WALTON: May it please the Tribunal, I would like to ask, for a point of information, if Your Honor's order, nunc pro tunc, for making these changes it stops the Prosecution, in their rebuttal, from putting in evidence as to the original form of the affidavit.
THE PRESIDENT: No. What eve are doing here is allowing the witness to tell the story as it occurred. There is no order being made at all, Your exhibit which you have presented is an exhibit, and naturally it remains as you presented it.
MR. WALTON: Yes.
THE PRESIDENT: But now, for the information of the Tribunal, we are having the witness indicate wherein he declares that an error was made.
MR. WALTON: That is all I wanted to know, sir.
THE PRESIDENT: That is right. BY THE PRESIDENT: the number of executions.
A No, not about the figure as such. I did not discuss this with the prosecutor at the time here in Nuernberg, but I had intended to do that later on, which he said I could. However, I would like to have added that these executions were done according to a proper procedure, owing to a certain activity of the person concerned, That is, the person was not shot arbitrarily, but after a carefully detailed examination That is not expressed here. the affidavit regarding the executions that in each instance, before the man was shot, there was an investigation to determine his guilt?
Q Are there any other corrections you desire to make? that the Einsatzkommando had a surplus of 100,000 marks derived from people to be executed. It states, and I quote: "This amount originated from the people who were to be executed, who had to hand over their money and valuables."
This sum of 100,000 marks came about like this. In August or September. 1943, when I was in Germany, my bookkeeper at that time, who kept books in Berlin, visited me because certain papers had to be signed by me, which I had not yet signed. On that occasion he told me that the money affairs and his settlement were in order, and that there was surprise in Berlin that he had a surplus because this, did not occur in other Commandos, On that occasion he named a figure to me, which I remember was 100,000 marks. I only happened to hear about this, but did not see it. necessary to ascertain this. Nor did I ever say that in this 100,000 marks certain amounts were included which, as I explained this morning, were used for the benefit of the Reich and were confiscated by the Reich from the people who were condemned to death and executed. further information insofar as I ordered, for example, that the black cash register which existed in the Commando be dissolved. That was done by me because it was not permissible for legal funds. This money was then put into the cash register of the entire Commando. I do not know where these funds originated; I found them there.
A Please? to you by the bookkeeper.
Q Yes. Now, was there actually that much money available? Did that much money exist?
A I don't know in detail, but I presume so.
Q All right. Now, where did this money come from?
A I just explained that. It could only have come because, on the one hand, we were very economical, and, on the other hand, because of that illegal fund which was kept in the Commando. This was a fund which was unofficial, which was kept separately. executed?
A I do not know about the origin of this illegal fund; I don't know where it came from. the money was derived from people to be executed? Did you say that to him?
Q Oh, I see. Some of the 100,000 marks represented money taken from people to be executed?
Q You don't know how much of that?
A No, that I can't say.
A Very well; we will make that correction ourselves. All right, any other correction?
A Yes. The decisive point of the whole matter is what I explained in detail today concerning my entire attitude and position within the Commando:
Brigadefuehrer Thomas obliged me by the fact that he sent Sturmbannfuehrer Nehring to help me, to deal with all these questions which had to do with the security of the army territory. For me, this seems to be very important, and this is missing completely.
Q Any other observations on the affidavit?
A Well, at the moment I can't see anything.
Q Well now, we have two affidavits. You are, of course, referring to the one of July 2, 1947.
Q Then there is the one dated 25 June. Do you want to offer any comments on that?
A In Esclheide? from my document book, yes.
Q That is correct. You are not making any observations on this? affidavit: When I was in Esclheide and was interrogated there for the first time, a member of the American Army approached me, and I had full confidence in him at that time. May I point out that before signing this affidavit I did not read it because I had left my glasses in the cell. However, he pointed out to me that that might cause difficulties, but I said that I trusted him blindly because I had a member of the American Army in front of me, and therefore I was not afraid. Up until that time I had not seen the affidavit again. I only have some vague memories about it, but I know that something is contained in this affidavit about the Jews, as I stated, today.
These matters are not contained in the Nuernberg affidavit. therefore I cannot pass judgment on this from memory.
THE PRESIDENT: Dr. Bergold, suppose he looks at it during the recess, and then looks at both affidavits. And then, when we reconvene in 15 minutes, let him give us a complete up-to-date account of what the affidavit should have said.
( A recess was taken.)
THE MARSHAL: Please take your seats. The Tribunal is again in session.
THE PRESIDENT: You may continue, Dr. Bergold
DR. BERGOLD: Yes. BY DR BERGOLD: davit?
A First of all the affidavit of Nurnberg. Here I would like to say that on page -- I think page one of the originals. it says, "The people destined for execution after their money, valuables, and sometimes even clothing was taken away from them," End of quote. In my interrogation I have already said that money and valuables customarily were taken away as soon as the persons ware brought into prison, and not only when the execution took place. Furthermore, it said, sometimes clothing, too. The word "sometimes" may give an erroneous impression insofar as the talking "way of clothing happened in individual cases, if a piece of clothing was needed for other prisoners, where was no definite system for this and there was no definite order to take away the clothing from these people, Concerning the fact given, here, that during execution by gas-van, it says, a few lines farther, "There was no physician present when the bodies were unloaded to certify that the people were really dead." One would have to add that this typo of gas execution guaranteed certain death, and, therefore, a special examination was not necessary. Furthermore, on point five at the end of the paragraph, it says: "In this type of execution no physician was present either." Sofar as I recall I said that in the individual case it was determined whether the person concerned was dead.
THE PRESIDENT: Without any reference to a physician, you didn't mention it, do I understand that what you told the interrogator there, in the individual cases it was determined that the victim was dead but you said nothing about a physician.
Is that what I understand. I just want to find out what you said?
THE PRESIDENT: I understand that. Now you are commenting on paragraph 5, and it is not clear to me--
THE PRESIDENT: Just what change you desire to make in the statement in the affidavit about the physician, that is not clear? cution no physician, was present either. The sentence would have to continue, but in every case it was determined whether the persons concerned were dead, not through a physician, to be sure, but at most by the medical non-commissioned officer. About the affidavit made out at Eselheide, I only have one thing to say. That near the end it says, "I didn't find Jews in Rostov any more." It looks as if I knew something about their presence. I might have said, "I didn't find any Jews in Rostov." By this I mean as I have already said today, I saw no Jewish settlement. The word "more" gives a wrong impression. BY DR. BERGOLD:
Q Is this all that you have to say about this?
DR. BERGOLD: Your Honor, may I now ask the following. As for the ruling which the Tribunal made before, about presenting all exonerating material, I understood that the Prosecution was asked to submit the interrogation transcript.
MR. HOCHWALD: If the Tribunal please, if I am not mistaken, I don't think Dr. Bergold will agree with me on that, Dr. Bergold me de application.
DR. BERGOLD: Yes.
MR. HOCHWALD: For this interrogation record, the Prosecution has answered the application of Dr. Bergold.
DR. BERGOLD: Yes.
MR. HOCHWALD: And he is in possession of an order of the court saying that interrogation transcript must not be submitted by the Prosecution. Moreover, the Prosecution intends to use this transcript at a later time.
DR. BERGOLD: I thank the Prosecution. BY DR BERGOLD:
Q Witness, now I come to your testimony itself. In this affidavit, it says that you made your testimony voluntarily. Would you also like to maintain this statement, or would you like to change it?
A I didn't make this testimony voluntarily.
Q Why. What reasons could you give for this?
Q What were you told after you took the oath?
A I was told; you know that it is considered just as serious an offense to omit something from your testimony than if you give some false statement under oath.
Q What conclusions did you draw from this statement? I was asked about. would incriminate you personally? served to you?
A No, I was not told that. The manner of the interrogation gave me the impression that I was to be examined as a witness.
DR. BERGOLD: Thank you. Mr. Hochwald, yesterday, we had a disagreement about the fact that you reproached me on the fact I had made slanderous remarks about the Prosecution, and that I had no proof for it.
May I now point out to you. Mr Hochwald, that in my opening speech I listed three points in which I criticised your procedure. These were briefly the following three points: First, that something had been omitted which was exonerating; secondly, one had told the defendant that he could correct his affidavit later on; and thirdly, that he was not told that he could refuse testimony. In reference to the last mentioned point, Mr Wartenberg admitted during his interrogation that he didn't explain this to the defendant. I would like to say one thing now. I have great esteem for the Prosecution, but I believe that it would be democratic to be allowed to exercise criticism for this thing which is not supposed to be a slander. Criticism is the duty of a lawyer, and I would like to interpret the democratic right, as a son of autocratic Germany, different to the Prosecution, or, perhaps I have too high an opinion of Democracy, but I did only want to criticise, and I didn't want to make any slanderous remark, and, I hope that Mr Hochwald is now convinced I don't want to slander the Prosecution, but merely want to criticize it.
MR HOCHWALD: If Your Honors please, criticism on the part of Dr Bergold is, of course, invited also from the part of the Prosecution, wherever he is in a position to criticize our way of procedure, he certainly is at liberty to do so, and, nobody will object, nor say at least that the Prosecution will try to stop him of that. The only objection is against the form and not against the facts, so I think then that Dr Bergold should not hesitate to say that the form was a little bit too sharp.
THE PRESIDENT: Very well.
DR. BERGOLD: Mr Hochwald, if one fights one has to use strong weapons, that is the battle order, this is not a cozy conversation or a bridge game, but it concerns life and death, and it is a very serious matter, and, therefore, I have to be harsh because I want to save the life of my client, and, in view of this serious background one must be a little more harsh, but we agree and I am glad that this misunderstanding has been clarified.
THE PRESIDENT: Very well, the Tribunal shares your happiness in it. BY DR. BERGOLD: carried out the investigations, and the general penal procedure. Do you have any proof for the fact that the Russians considered this procedure as inhuman?
A No, on the contrary. First of all Russians usually first denounced the perpetrators; secondly, it was the Russian who did preliminary work on the case before submitting it to the commando; and, thirdly, the Russian civilian population was accustomed to something completely different in this respect, Through an interpreter I heard that the Russians, in view of the activity of the commando, had the following to say: "Germany will never win the war since the Germans are not harsh enough." These words male a deep impression on me at the time and disquited me. I often found out with deep concern how little value human life had for a Soviet Russian Citizen, and how easily he dealt with human life, but it is completely so that it is of no matter at all in this case whether he takes some one's life, or whether he is to give his own life.
Q Witness, let's now leave Russia at last. When did you make your application for transfer from your commando? made this application on 9 November 1942. I made this in duplicate, one going to Brigadier General Thomas personally, and the other to the RSHA. Attention Gruppenfuehrer Streckenbach.
Q Did you know that no such application was allowed to be made?
A No, I didn't know this. My case was different anyway, since I could refer to the agreement with Heydrich, and which I had already presented as documentary evidence for Berlin.