I suggest therefore that the Tribunal set some date close to the 26th for the date of the completion, and for the taking of any testimony for the defense.
PRESIDENT: The Tribunal will discuss this in chambers during the recess and will advise counsel precisely as to the chronology of the various things still remaining to be done until this trial is completed.
DR. ULMER: Thank you, Your Honor. May I finally make the formal application for myself to be given time until the second of February for the delivery of my summation?
PRESIDENT: Well, we can't at this moment, Dr. Ulmer, make any announcement with regard to any particular defendant, you better wait until we make the general announcement, and then if you have any specific reason for deviating from the schedule outlined, then if you will see the Tribunal, then we can see what can be done.
DR. ULMER: Yes, Your Honor. I merely wanted to specify what I wanted but not to make any new suggestions.
PRESIDENT: Yes, very well. Thank you very much. All right. Mr. Walton.
MR.WALTON: The next document in Document Book I submitted for the defendant, Ohlendorf, to which the prosecution objects is Document No. 19, which is an unsworn statement of Walter Solbeen, dated 22 August 1947, page 130 to 132. This statement gives information as to Ohlendorf's activities in the Reich Ministry of Economics after November 1943. It is immaterial to any charge brought against this defendant. Document Number 20, the unsworn statement of Dr. Elmer Michel, dated 20 September 1947, page 133 to 135. This treats of the defendant's fight against monopolistic practices, struggles with political and antagonists and it shows on its face that the author has no knowledge of the defendant's activities during 1940 to 1945, some of which time is in direct issue in this case. Document Number 21, being an unsworn statement of Dr. Josef Duetsch, dated 26 September 1947, pages 136 to 140, and it treats of the defendant's struggles prior to the outbreak of the war as an official in the Reich group for trade and commerce.
It is immaterial and irrelevant to the issues of the case.
MR. WALTON: Now objection is offered to Document No. 22, being the affidavit of Fritz Schulz, undated. Franz Maulhardt, dated 6 October, 1947, There is no objection offered to Document No. 24 being the unsworn statement of Karl Winter, dated 3 October 1947.
Prosecution does, however, wish to object to Document No. 25, which is the unsworn statement of Dr. Justus Beyer, undated, pages 149 to 153, which is again evidence submitted as to the domestic spheres of the activities of the SD. It is immaterial as to the activities of this organization in Russia.
It interposes an objection to Document No. 26, being the affidavit of Horst Webendoerfer, dated 21 October 1947.
THE PRESIDENT: Mr. Walton, perhaps if you refer to the affidavit number, the document number, and the name of the declarant or affiant, as the case may be, we might expedite things a little bit.
MR. WALTON: Yes, although all of them are hot affidavits.
THE PRESIDENT: Or whatever it is.
MR.WALTON: The affidavit of Horst Webendoerfer is a memorandum as to the defendant's activity during his service with the National Group Trade and his struggles with Ley, Himmler, and so forth, and is immaterial.
Document 27, the affidavit of Dr. Hans Roessner. There are several affidavits from this affiant. This is undated and is found on pages 6 to 15 of this particular Document Book la. This document of the witness' testimony is unsigned and refers to the cultural life of the German people, and the interest further displayed by this defendant is immaterial to the issues and to his activities as head of the Einsatzgruppe. It is irrelevant as to whether or not he participated in war crimes and crimes against humanity as a member of the SD in the East.
Document 28, being the deposition of Dr. Hans Lammers, shows that on its face it is undated in the English text and that the certificate of the testifying witness is unsigned.
The document is objectionable in that it is not shown that this witness is an expert on channels of communication is SS formations, nor is it shown whether this witness has knowledge of other than the official relationships between Ohlendorf and members of Hitler's personal staff. affidavit of Werner Lorenz. Erich von der Heyde. It is cumulative testimony and treats of the political ideology of the defendant. It is neither material nor relevant to the issues of the case as at this time the defendant was only nominally a member of the SD. Erich von der Heyde. This document showing the kindness and consideration shown by the defendant in the case of Jewish employees of the I.G. Farben is irrelevant to the murder of thousands of Russian Jews for security reasons. being Document 32.-from Himmler to Ohlendorf and is dated 31 October 1943. It is cumulative evidence of the uncontested fact that relations between these two parties were not cordial. Reprimands that are based on charges of alterations of SS uniforms are somewhat irrelevant to this case. pondence from the Mohammedan Committee. letter dated 6 February 1934, purportedly being from Ohlendorf. This, of course, is objected to on the grounds that it is a self-serving declaration and is immaterial to his activities in the Eastern Territories, which happened in '41, or to the illegal acts committed by the SS or SD subsequent to September 1939.
Donner dated 8 October 1947, this document being a recital of the activities of Ohlendorf during the period 1934 to 1937, to which there is no contest and to the later period of 1944 after his return from Russia. It is not claimed by the prosecution that this defendant committed any illegal acts during these periods of time. Such testimonies as letters of recommendation, unsworn, and covering incidents outside the scope of the charges in the indictment are irrelevant. lizeny before the International Military Tribunal of the 3rd of January, 1946. ted to as the documents were offered. There is no point in going over that.
THE PRESIDENT: No, you needn't go over it.
MR. WALTON: I should like to take up now Document Book II-B, which is in the series of books.
Document No. 58 is an excerpt from Hjalmar Schacht, being Schacht Exhibit 48, and is a memorandum concerning the description of a four-year plan, dated 1936. The contents of this document have not been served on the prosecution, as was pointed out to the court yesterday and I don't believe the court has a copy of this particular document. I would like to reserve objection on that until I see what the contents of the document are.
The next document is Document No. 59, which is excerpts from Adolf Hitler's proclamation of 22 June 1941 as appear in the Voelkischer of 23 June 1941. This is hearsay evidence. It is an attempt to refute the historical fact that the invasion of Russia was an aggressive act on the part of Germany. Nothing in this document pertains to the issue involved in the case and the quotation of a newspaper account is certainly hearsay evidence too far removed from the source and for that reason the prosecution objects.
The two extracts from the works, "Speaking Frankly," which are Documents No. 60 and 61, the work, "Speaking Frankly," being published by James F. Burns is hearsay and conclusions of the author and immaterial to the issue in the case.
The next document book is Document Book 3. The prosecution interposes no objection to Document 44 and interposes no objection to Document 45. There is no objection to Document 46, nor does the prosecution object to Document 47 in Document Book 3. der of the Commanding General Plenipotentiary in Serbia, dated 26 October 1941. Now this order is immaterial to the issue for the lack of jurisdiction over Einsatzgruppe D. At the date of the order Einsatzgruppe D was not in Serbia and was not under the jurisdiction of a general commanding in Serbia. also of the Plenipotentiary Commanding General in Serbia dated 3 November 1941 for the same reasons as were entered in the record as to Document 48. to Document 52, but the prosecution does object to Document 53, the same being extracts from an interrogation of General Westhof on the grounds that it does not show the qualifications of the witness, his positon in the German armed forces, his opportunity for knowledge and what are the reasons upon which he bases the opinion given in this interrogation, also for the reason that the highest and best evidence in the matters about which he testifies are the regulations, decrees, and orders themselves.
Prosecution interposes no objection to Document No. 54, which is contained in Ohlendorf Document Book No. 4. The same is the entry in the service record book of Otto Ohlendorf. There is no objection.
the same being a supplementary affidavit of Dr. Hans Lammers. No. 56, that being the affidavit of Dr. Hans Ehlich, dated 25 November 1947. This is the organization and function of Amt. 3 of the RSHA as given in a deposition form by a former Chief of Section 3-B of that Amt. This document while possibly of value as background or historical material has no value to the charges of mass murder in Southwest Russia including the Crimea. Likewise it presents no defense to the charges that the SD was a criminal organization as this is a fact that has become raised adjudicata by the decision of the IMT. Doubtlessly the SD engaged in numerous legal activities during the years 1939 to 1945, but this Tribunal is engaged in the examination of the illegal and criminal activities which this organization and its titular head engaged in during the Russian Campaign. Therefore, the knowledge and or participation of this defendant in such actions are neither discussed hor denied by this witness and this document therefore becomes irrelevant to the issues of this case. same being the affidavit of Dr. Heinz Wanninger. To four-fifths of this affidavit the same objection can be raised as was offered to the affidavit by Dr. Ehlich appearing in the document book. However, since this affiant does treat the organization and inside of the Einsatzgruppe, the prosecution offers no objection to those parts which pertain to the issues of the case. missed either 63A or 64A, but certainly to the translation of Document No. 1880. There is nothing which shows the source of this document on the English copy. However, we do not object to it and I think from the language it will be of value ot the prosecution. tract from Document NO. 1881, was not served on the prosecution in English, but I waive that as I have had that translated to me, but this document refers to some plan or proposal concerning the treatment of volunteers from the East.
It is, the best I could get from it, a cover letter or a memorandum file and such a document is immaterial until the referred-to document is introduced which apparently was part of this same extract. Maybe it can't be found, I don't know, but as the document stands on its face, it is certainly immaterial to the issues in this case.
MR. WALTON: NOW, your Honor, a few words more and I am finished. As to the documents which were presented to the Tribunal in connection with the activities of the SD,it must be said again that all these documents are immaterial to this case. The question before the Tribunal is not whether the SD, the SS or the Gestapo were criminal organizations. The question is solely whether the Defendant Ohlendorf or any other defendant in this case having joined the SD voluntarily remained a member of this organization, or if he was drafted into this organization by the State, whether he took part in such criminal activities or not and that is the question.
The fact that the SD. the SS and the Gestapo were criminal organizations is definitely established by Control Council Law No. 10 and is not an issue before this Tribunal, the prosecution would be obliged to offer proof of the criminality of these organizations. In other words, the prosecution would be obliged to request this Tribunal to try a considerable part of the case of Goering and others, as it was before the International Military Tribunal, over again. have decided about membership in criminal organizations that the question of criminality of certain organizations to which the SD belongs was validly decided by the IMT and by Control Council Law No. 10 and was made binding for the decisions of these Tribunals. prosecution objected against the admission of a document which was presented by defense counsel for the Defendant Fendler by stating and I quote: "You can show that he, that is, Fendler, was either not a member of that organization or that being a member of the organization he was entirely ignorant of its criminal operations, but you cannot contest what is now adjudicata, that that organization has been declared a criminal organization." And later on the Tribunal stated further. and I quote again, "We will permit the document only for the purpose of enlightening the Tribunal on the knowledge of the Defendant Fendler that this organization was conducting criminal operations."
That is from the transcript of the Record page 4020.
THE PRESIDENT: The Tribunal will be in recess 15 minutes.
(A recess was taken) THE MARSHAL:
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.