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?
A. Even now I cannot decide upon that question. Wherever an emergency arises -
Q. All right. If you cannot decide upon it, why didn't you answer the question the first time I asked it by saying, "I don't know"? There is no need to go into a long explanation. Simply answer the question that is put to you. Witness, is it not a fact that in all territories which were under the control and influence of Germans the non-Jewish population was encouraged to turn over Jews to the Security Police for disposition?
A. I did not say anything of the kind.
Q. All right. From what you heard then, isn't it a fact that they were encouraged to turn over Jews to the Security Police for disposition?
A. I did not hear anything about that either.
Q. Well, let me call your attention to Document Book II-D, Page 20 of the English, Page 25 of the German. This is Document 2828, Prosecution's Exhibit 86. Now, the last paragraph of this quarter of this excerpt contains these words, "The population of the Crimea," and for a time your commando was in the Crimea, was it not?
A. No, Mr. Prosecutor, a stronger subkommando of mine was sent to the Crimea by me, during the first days of January, upon order of the Einsatzgruppe Chief.
Q. All right.
A. In some of the documents where you can see it for yourself, it says expressly that this subkommando was subordinated to a commando active in the Crimea. This subkommando which might have become active in the Crimea here was not subordinate to me. I could not give them orders, and for reasons of distance I could not have control over them at all.
Q. Now, let me ask you, was a formal order given you to send part of your commando to the Crimea and to put that part of your commando under the command of some other person?
A. The order was: so many men, N.C.O.'s and enlisted men - not even and officer went along -- are to be moved to Simferopol, who have to report to the Einsatzgruppe chief or report to some definite place. That is all I know. I never saw the men again. Please understand, this was a transfer of men to another unit.
Q. That is what I wanted to know, was it a formal transfer by order? You have answered the question. Let's come back to the other question now. This document says that the population of the Crimea is anti-Jewish and in some cases spontaneously bring Jews to the commandos to be liquidated. Did this ever happen to you in the territory which you occupied?
A. No, I never experienced that.
Q. All right. Let's come back once more to this document 2837 which we were discussing. Since the Rumanians knew the German policy to liquidate Eastern Jewry, were they not, as any good ally would, cooperating by seeing that all Jewry, including their own, were removed as a security threat by sending them to you for disposition?
A. Well, I did not catch all the question.
Q. Since the Rumanians knew about the German policy to liquidate Eastern Jewry, were they not, as any good ally would do, cooperating by seeing that all Jewry, including their own, were removed as a security threat by sending them to you for disposition, or to the territory occupied by the Germans?
A. No, I cannot pass a judgment on this. What I heard was only the following. Insome individual locations in the Rumanian territories excesses occurred as a result of which the people came over here. What the Rumanians thought as our allies, I don't know. I simply cannot tell you that. I never considered that problem.
Q. Well, do you agree with this report, the Rumanians had driven thousands of selected persons unfit for labor from Bessarabia and Bukovania into the German sphere of interest. Is that correct, about this incident?
A. This is not quite in line with my experiences. The large majority of those whom I led back across the bridge from that camp, were healthy strong men.They were mixed, like any other population, not selected men for any particular reason. At least I did not notice that.
Q. Let me ask you this, Witness, do you think these Jews would have wandered into the German territory if they hadn't been forced there by the Rumanians?
A. Certainly. That is quite possible.
Q. So they were driven into the German territory?
A. Well, I read it in the reports. I did not experience it. I do not know the events as they happened there. I only noticed them from the report here.
THE PRESIDENT: Just a moment, we have two answers from the witness on this subject, and let's clear it up at once. BY THE PRESIDENT: volition, or were they driven over?
Q Well, you talked with them, What did they tell you?
A They did not talk about their former troubles and worries. They just wanted to go home. with these Jews, that you took them across the river and yet did not find out how they happened to be on your side of the river, whether they were driven over or came over voluntarily. That kind of statement is absolutely contrary to all human observation. The most natural thing in the world would be to ascertain why and how they not over there. Now, you answer that question. You have answered it two ways. How answer that question and tell us whether they came over voluntarily or were driven over.
Q Then they were driven over? case they were led across.
Q Well, were they compelled to cross?
CROSS-EXAMINATION (Continued) BY MR. WALTON: into German territory?
A I should think Rumanian soldiers. I don't know the previous events in that territory.
Q I know you weren't in the territory but you at least inquired about these facts through people, through the interpreter, for you gave in direct examination full details of the event. Now, as a matter of fact, isn't it reasonable to suppose that your Rumanian allies sent you these Jews for disposition? reason. I don't know. Excesses occurred in some places.
Q You testified on this several times. We have gone further, since you are very reluctant to give all the facts of the incident. Did you personally negotiate with the Rumanian troop commander for the passage of these Jews over the Dnjestr River bridge?
Q Who negotiated with this officer? across the bridge not knowing what kind of reception they would set on the other side?
A Well, I saw the soldiers, and I just led then across. The soldiers simply let them loose on the other side. I told these soldiers: here comes a convoy. Then we led them across and the soldiers stood by and the people walked along the road, away from the bridge, somewhere into the country.
Q You never conferred with anyone; you simply took these Jews across that bridge and said, "Now no on back to your homes." Is that what was done?
A Well, I didn't know that any measures had been taken. I just assumed that they would find their way home, wherever they were to go.
Q Now, this report was written in Berlin, was it not? report?
A I don't know. They could have come from various places. Some of it might have come from Einsatzgruppe D, from Einsatzgruppe C, or, and this seems the most probable, that can have come from the Higher SS and police Leader who, together with a few units, according to the documents, was in this territory. facts from Einsatzgruppe C and put them under a section of their report which said "Einsatzgruppe D"? Einsatzgruppe D, yes, I think so. They have to accommodate it somewhere. Einsatzgruppe D headquarters directly?
Q Yes, and where did Einsatzgruppe D headquarters get those facts?
A What facts they used for this, I am afraid I can't tell you.
Q I didn't ask you that; I didn't ask you that. When activities of Einsatzkommando 12 were reported by Einsatzgruppe D, where did they get the facts about Einsatzkommando 12? group.
Q That is right. So then -gruppe D?
A I cannot tell you. I don't know how the report was made up. I consider this report, according to what I heard in the area of Einsatzgruppe D, I consider this quite improbable. reports, changing the figures from 19 murdered Jews to 91 murdered Jews, isn't it reasonable for us to suppose that this is a report of yours based on a hyperactive imagination which has improved since you have been in this courtroom?
nor the other fact is right either. I described how it happened with Hausmann. This was not exaggeration, and another figure was added, and here I went to emphasize again, I did not give a written report which dealt with this subject at all, but merely reported verbally very briefly, "I have carried out the mission, and thanks to the support of the German bridge commander, the matter went very easily and very quickly." That is all I had to do with this.
Q All right, Let's so to Document Book III-D again, page 72 of the English, page 118 of the German, which is Document NOKW-634, Prosecution's Exhibit 168. Now, on page 74 of the English text, your Honors, and on page 119 of the German text, this gives a detailed account of the capture and subsequent interrogation of a Russian paratrooper by the name of - I will have to swell it, I can't pronounce it - K-r-a-p-i-w-n-i-k-o-w. Was this report based on your report of the capture of this man?
A No, Mr. Prosecutor. This report occurred or is based on a report by the subkommando leader who was near Grigojevka, that is New Anantal, and was doing ethnic German work. command, was he not?
A He was under Hausmann's command because I said on 24 -of your command, he was subordinate to you. Now, this man that wrote this original report was a member of Einsatzkommando 12, was he not?
A Well, Mr. Prosecutor, you draw wrong conclusions. When I was in the hospital the Einsatzgruppe Chief told me to transfer the command to somebody else. Then this man is the chief -
Q That is what I want to know. Why didn't you state you were in the hospital and temporarily relieved of command when this incident occurred?
A We have talked about that in detail. It seemed too boring to me to repeat that again.
Q Just a minute, just a minute. Witness, it makes no difference how many times you have talked about it in detail. You will now talk about it to me, and I shall conduct the cross-examination. Let's understand each-other. Now, answer this question. Since the man was caught behind the German lines in civilian clothes and armed, under the rules of warfare he had a right to be executed, or the Germans had the right of executing this man, did they not?
A Not at all. These parachutists are not to be mixed up with any agents, but they were soldiers, and if a soldier tries here to break through to his lines, well, he is lucky if he manages it. If he doesn't, he is treated like a prisoner, provided that the interrogation gives a satisfactory result. And he was treated like a prisoner, and never did the sub-kommando leader tell me that even one man was shot, and the Detachment Commander Beck never said one word that one of those men was ever shot. all eleven of these parachutists were made prisoners of war and were never executed?
A These POW's as far as I can judge, and as long as I was there, were never shot. They were in the custody of the Wehrmacht, and it was one of my official actions to look after this dispersed commando, how they were doing, and when I arrived there three or four days later, I found the conditions as I have described them here. I could not object to the attitude, and neither the Wehrmacht nor anyone ever told me that they were shot, but I still found prisoners, quite a number, who were being interrogated.
Q All right. Were you in command of Einsatzkommando 12 during January, 1942?
A In January, '42 , yes -
Q You were in active command of it, or at least half of it? Crimea. This was the second lot that went to the Crimea.
in the Crimea?
A I personally, Yes. Only I alone with my driver made an official trip in January to the Crimea. When I received the radio message to take care of winter supplies which had arrived late and to collect them with a recently consigned truck and I had to abandon this truck in which I travelled, after a short while.... is that what you said? Yes.
Q Well, that is what I wanted to know. Now, you have stated that in January 1942 your activity was hampered because your commando was split and because of extreme cold weather, have you not? 121 of the German, Document No. 3401, which is Prosecution's Exhibit 52. Now, I would like for you to turn to page 12 of the original, at the latter part of the document, and on page 115, Your Honors. This is a report of Einsatzgruppe D. report and indicate to me when you have finished reading it. Teilkommandos for the purpose of combing out the northern Crimea. What combing operation did you order your men to perform in northern Crimea?
A Mr. Prosecutor, I believe the sense is quite different to how you are trying to interpret it. Einsatzkommando 12 is never mentioned here. I believe the paragraph is so short that I would like to read it to understand it better. "In the time of reporting, Sonderkommando 10 b was in Feodosia, and they were able to resume its security police operations after the Russians were driven out.