Q. You learned that from the German press during the war, did you?
A. No, not from the press, not from the German press. Those were things which one always heard in my official capacity in our office.
Q. Did you ever see any military court that tried Jews or Poles or Russians?
A. No. Luftwaffe courts were not competent for those people. Soldiers were tried by the military courts; the Luftwaffe courts had no jurisdiction whatsoever over or with respect to civilians unless it was a punishable act of a member of the Luftwaffe in which civilians had been used as accomplices.
Q. And so far as you knew, the Geneva Convention was always abides by the Wehrmacht and all of the subordinates?
A. Well, I can only speak of my own sector. I knew that we as field courts were too exact even with respect to the Geneva and Hague conventions, and I am sure that this Tribunal knows that the Fuehrer pronounced his distrust toward the German courts. Somebody else mentioned the fact about the military tribunal at the beginning of the Russian campaign would be left at home in Germany.
Q. Did you go along with that?
A. Yes, until the end of the war.
Q. Do you know that they branded Russian prisoners of war?
A. No, we had nothing to do with prisoners of war, in the Luftwaffe, that is, with regard to Russian prisoners of war. Although I was in Russia for fifteen months, I did not see one single Russian prisoner of war because we were too far removed and we had nothing to do with these things.
Q. You never heard of the Einsatz-Commandos over there?
A. No, never.
Q. Are you familiar with the protest dated 15 September 1941 against the order of General Reinicke of 8 September 1941 which denies to the Soviet Russians treatment as prisoners of war?
A. No, I do not know that order and I heard it from you for the first time in my life and it is absolutely new to me.
Q. You never heard of it before?
A. No, never.
Q. Now, how long did Milch have this authority as a judge?
A. He was not such a judge; he did not have full power of confirmation; the air fleet commander under Gen. Field Marshal Sperle, Colonel General Stumpf, General Kesselring, Dessler, General Flugbeil for the Northeast. Field Marshal Milch had the confirmation right to the extent of the regular division commander in his function as field judge.
Q. And how long did he have this confirmation power?
A. From October 1942 to January, possibly also February, 1943.
Q. And how do you spell the name of this man who was, in the end of Summer or early Autumn 1943, in a Luftschutzraum in Berlin and made some remarks about Hitler and the Luftwaffe?
A. His name - well, to give you his name is absolutely impossible for me. As a judge and as a supervisory judge I had approximately 1200 cases a month.
Q. The answer is "you don't know how to spell his name," is that right?
A. No, I cannot remember the man's name. All I know is that he was a soldier from the Flak and as far as I remember he was from Goering's regiment.
Q. And he was sentenced to death and Milch spoke to Goering about him and they returned him to duty, is that right?
A. Yes.
Q. So far as you know, the only people that were ever tried by the Luftwaffe courts were Luftwaffe personnel, weren't they?
A. Yes. Military personnel, soldiers and members of the staff and the armament industry that had something to do with the Luftwaffe, according to the laws which existed in the military jurisdiction of the Luftwaffe.
Q. Did you know they had any prisoners of war working for the Luftwaffe?
A. No, I didn't know; it's absolutely new to me.
Q. You are hearing for the first time that the Luftwaffe employed prisoners of war?
A. No, I heard that in 1945.
Q. After the war was over?
A. Yes, indeed, because we didn't have anything to do with the industry. We had a different task, namely, purely judicial tasks during examinations. I was present during questionings at Messerschmitt but I only spoke to the contractors, constructors, and parts procurers and I had nothing to do with the workers and I could not speak to them so I could not learn anything at all and I could not inquire and never had the thought to inquire.
Q. Do you speak Russian and Polish?
A. No, neither Polish nor Russian. I can just speak a little bit of English, what I learned in school, that is, and a little bit of French and Spanish.
1398-A
Q. Did you ever go in the Messerschmitt plant at Regensburg?
A. No, not in Regensburg. I only went to the main factories in Augsburg in the Summer of 1942 from 10 o'clock in the morning until 6 o'clock in the afternoon and then the same evening I went back to Berlin. This was the time of the examination concerning the crashing of various planes of the type Messerschmitt 210, which crashed as a result of construction faults.
Q. Did you ever see any concentration camp inmates working in any of these airplane factories?
A. No, I didn't.
Q. Did you ever see any concentration camp inmates?
A. Yes, indeed. I even invited a man for coffee who had been presented to me for an examination, who was in a concentration camp and who was somewhat sad about the fact that he found conditions in the military court in Berlin on Woertherstrasse worse than those prevailing at Buchenwald and asked to be sent back to Buchenwald as soon as possible. I had a very open talk with him and he was Amtsgerichtsrat and worked in Buchenwald in some sort of a capacity. He wrote to the commander of the BGB, which is known to everybody and which is a civil court in Germany, and he said that he expected to stay for a few more years because he wasn't careful enough and for him as a single man he didn't have to worry about anything at all. He told them that he wanted to be honest.
Q. I am just going to ask you one more question and all you have to do is to give me a date. When was it that this gentleman wanted to go back to this haven of loveliness that you are talking about at Buchenwald? Just give me the date.
A. That was in May or June 1943.
DR. BERGOLD: I have two further questions, Your Honor.
RE-DIRECT EXAMINATION BY DR. BERGOLD:
Q. Witness, I shall come back to the case of Rautenbach. Is it correct that this case looked like a very bad case?
A. Yes, it looked so bad that even my best judge, which I knew at the ZBV Court as a very wise man and very energetic, was sent to Berninger-Rhode immediately. At that time this was an extraordinary measure.
1399-A
Q. Then the second question: You examined several concentration camp inmates as witnesses, did you? Did none of them complain about anything at all?
A. If the man is still alive I do not know, but I had a very good friend who was a worker and who had spent four years in the concentration camp. His name was Leim. The man had been a Communist and after four years of concentration camp he had learned how to fix floors. That man unfortunately in 1942 was entangled into another political proceeding because of a comrade whom he had met in a concentration camp and he had sheltered in his house for a night, although he knew that the police were looking for him. He was again sentenced. He was sentenced to jail. However, he was pardoned, then he was a good soldier. The man repeatedly wrote to me and he assured me that all he could build up - he could only do that because he had learned a trade in the concentration camp so that he was able to make 110 marks a week as a floor fixer. He had a library and a collection of books in his home which was a real pleasure to look at. It was really fun to watch the man try to educate himself and how he brought up his ten year old son so that one could really say that he was living the life of a good citizen.
Q. I only wanted to know: When you examined the many witnesses from the concentration camps, did anyone of them ever complain?
A. No.
Q. Well, will you continue?
A. During the examinations I even told them that they were free to tell anything they wanted to the judge and that every statement which they made before the police could be repeated before the judges because all of the statements made before the judge were the ones that were binding and that they did not have to be afraid about the statements they would make. That was a principle which every judge had or held, namely, that he separated the two jurisdictions between police and judge.
Q. Thank you. Witness, before you mentioned the Luftwaffe jurisdiction with respect to air armament industry. Did that refer to foreigners as well or only as to Germans?
A. Only as to Germans and only to the leading people in the industry. I 1400-A don't mean that the worker or laborer, if he had done something wrong was punished immediately by them, but the case was that if on purpose or without any purpose the procurers and directors and contractors, if the laws were violated there, that these people were put before an expert Luftwaffe Court and tried there.
Q. Witness, you testified before that you occupied yourself a lot with the Geneva Convention and that you knew it thoroughly?
A. Yes, as far as I can remember we repeatedly mentioned questions of the Geneva Convention. That is also for the purpose of troop instruction.
Q. Witness, were you yourself also treated according to the Geneva Convention?
A. I do not wish to answer that question.
DR. BERGOLD: I have no further questions to the witness.
MR. DENNY: No further questions, your Honor.
THE PRESIDENT: I have one or two questions.
BY THE PRESIDENT:
Q. Did the courts that you supervised try workmen for loafing or for sabotage or disobedience?
A. Please?
Q. Did the Luftwaffe courts, in which you were a judge, try workmen for loafing, sabotage, or disobedience?
A. No. Cases of disobedience could not be heard-committed by civilians because regulations of paragraph 92, concerning military disobedience, with military personnel, did not apply to civilian personnel. Subordinate workers, workmen, etc., were never tried by the Luftwaffe courts. This was an absolutely civilian matter. In these cases there was a special law, not only of the judicial authority, or the person with judicial authority but also the statement had to be made that these matters should be brought before the Luftwaffe Court. This was done when those things concerned air armament matters, which had to be kept secret, or when there were personalities involved which were of importance to air armament.
Q. I still haven't the faintest idea of what the answer is. If a man working on a machine was careless, or loafed, did not turn out his work, or injured the machine, before what court was he taken?
A. Those were civilian courts. There were definite civilian courts. In other words, let's take it that somebody sabotaged a machine; he puts some nails into a machine. The matter was not brought before a Luftwaffe Court. It didn't matter whether he worked with air armament or not; he was just brought before a competent civilian court, according to the severity of the case.
Q. Then your court only tried officers or uniformed members of the Luftwaffe?
A. Yes, indeed.
Q. You didn't try civilian workers?
A. Not civilian workers, but if there was any trial against 1402 - a civilians, then only in cases when there was a definite order of the commander-in-chief of that particular armed group.
This occurred when they were prominent members of personalities of the air armament, namely, as I stated before directors, procurers, or instructors, and only people who were of importance. Otherwise, the Luftwaffe courts were not strong enough in order to try large numbers of people.
Q. One more question. Did your friend ever send his ten year old son into a concentration camp to learn a trade?
A. No, the father was the man who learned the trade in the concentration camp. He had a 10 year old son.
Q. No. He was so pleased with having spent four years learning to be a floor-maker, I wondered if he had sent his son back to the concentration camp for that purpose.
A. It is not pleasant for anybody to lose his freedom, and of course that man also suffered under that, his freedom had been stolen. That is the worst that can occur to any man, namely, that his freedom is stolen to which a man is born.
Q. You don't mean, then, that he told you that he had enjoyed it?
A. According to the circumstances, it is cum grano salis as the Latin phrase goes, it is very difficult to understand. There are pleasant things and there are unpleasant things, there are necessary things and unnecessary things. Well, he has been punished and this was a punishment which also offered him a possibility and a chance. He knew how to make a difference between pleasant and unpleasant things.
Q. You mean he saw the bright side of it?
A. Yes, he did, and he saw that he had not only lost something, but that he had learned a lot and that he was on a new road
THE PRESIDENT: The Marshal may remove this Witness.
(Witness excused)
And now, Dr. Bergold?
DR. BERGOLD: I have part of the document book number 3, but unfortunately it is not complete yet. I have to have it complete, because this document book deals with the incident of the two Russian prisoners of war who had been shot, and if I do not have all the documents, then the context cannot be understood clearly. I hope to be able to got it either today or early tomorrow morning. That is, the last part of the document.
THE PRESIDENT: How long has it been in translation?
DR. BERGOLD: Over a week now.
THE PRESIDENT: Well, this is a very expensive delay.
DR. BERGOLD: Yes indeed, Your Honor.
THE PRESIDENT: Unless the document book is very large, it seems to me that it should have been ready.
DR. BERGOLD: Yes, Your Honor. That is all, Your Honor.
(Indicating size of document book)
THE PRESIDENT: You have shown me a book of about a dozen pages?
DR. BERGOLD: Yes, Your Honor, twelve pages.
THE PRESIDENT: That is ridiculous, that this Tribunal should be absolutely hamstrung for want of a translation of twelve pages. Now that is inexcusable, somewhere. How much of it do you now have?
DR. BERGOLD: There is only supplement number one missing, which is one single page.
THE PRESIDENT: Well, I don't know whom to direct this order to, but that page had better be ready at 1:30. This is intolerable. Now, wherever this message carries to, someone ought to hear the fact that we are being delayed here for want of a translation of one page.
This Tribunal will recess until 1:30: everybody will be ready to go on with that book at that time.
DR. BERGOLD: If I may make the following suggestion, perhaps I could give one page to the interpreters and they could translate it very fast.
THE PRESIDENT: I don't care how you do it, doctor, I don't care how anybody does it, but it had better be done at 1:30. We will recess until that time.
THE MARSHAL: The Tribunal is in recess until 1330.
(At 1140 hours, a recess was taken until 1330 hours)
THE MARSHAL: Tribunal Number 2 is again in session.
THE PRESIDENT: The Tribunal has caused an investigation to be made about the Translation Division. In fairness to that Division, these facts ought to be on the record:
Document Book 2 for the Defense, consisting of about 50 pages, it was stated to us, had been given to the Translation Division ten days before it was needed in Court. The record shows it was given to the Translation Division on Friday afternoon and that it was ready to be used on the following Tuesday morning. That is not even ten days.
Supplement Number 2 came to the Translation Division on February 26, in the afternoon, and was ready for use on February 28.
Supplement Number 4 came to the Translation Division on February 27 and was ready for use on February 29. The same dates apply to Supplement Number 5.
Supplement Number 3 came to the Translation Division on February 26, and with an intervening weekend, was ready for use on March 3. These dates apparently exculpate the Translation Division from any undue delay especially when regard is had for the fact when they are translating documents for other trials. Tribunal 1 and Tribunal 3 and even some documents for Case Number 4. Apparently no blame is to be attached to them for the delay. I presume part of the purported delay comes from the fact that all cf these documents have to go first to the Defense Information Center and then to the Document Room where they are translated and mimeographed; then back to the Translation Division where an English translation is prepared. That, again, goes to the document distribution center where the translation is mimeographed. Then the translations are distributed. It is a long way. The delay may occur anywhere in that journey. It is a complicated process made necessary by reason of the use of two languages and may be, at least in part, unavoidable.
The Court has thought proper to put these facts on the record to prevent any blame being attached where it should not be place.
DR. BERGOLD: May it please the Tribunal, I would like to introduce now Document Book Number 3, I have given you copies which I received. I would like to introduce in evidence Exhibit Number 40. It is an affidavit, Kaethe Herbst, of 21 1406 a January 1947 with four enclosures.
May it please Your Honors, before I start, I would like to inform you, concerning the two Russian officers, that it has been a difficult matter. To clarify that matter, we have very little new. However, this is the result of a great and complicated work. To clarify that, what so far was unknown, I would like to read this affidavit now.
THE PRESIDENT: What is the Exhibit Number?
DR. BERGOLD: Exhibit Number 40, Your Honor. It is right in the index, Your Honor. It is page 1 of Document Book 3 of the Defense, Your Honor.
"I, Fraulein Kaethe Herbst, born 23 April 1924, in Nurnberg, Lieestrasse 23, have been informed that I render myself liable to punishment if I make a false statement in my affidavit. I declare under oath that my deposition is true and was made to be submitted as evidence to the Military Tribunal No. II in the Palace of Justice, Nurnberg, Germany.
"Firstly, I have been secretary of attorney Dr. Friedrich Bergold since the beginning of the trial in his capacity as defense counsel in the proceedings against Erhard Milch.
"Secondly, on 8 January 1947, Dr. Bergold addressed the following letter to the German News Agency (DENA):
"'As attorney of Herr Erhard Milch, I beg you to issue, if possible by broadcasting, the following request for information:
"'The attorney of the former Field Marshal Erhard Milch requests these persons who are in a position to give information on the following occurrence to communicate with Dr. Friedrich Bergold, attorney, Palace of Justice, Nurnberg:
"'Around the middle of February 1944, two prisoners of war are supposed to have tried to escape by aeroplane which they seized at some factory or airfield. Where did this incident take place and what is the fate of the two prisoners of war?'
"Thirdly, the representative of DENA informed Dr. Bergold in my presence that he had forwarded this letter to the head office of DENA at Bad Nauheim to be attended to there.
"Fourthly, a few days later Dr. Bergold received the following information in reply to the request as given under cipher 2, the originals of which are attached to this affidavit:
A "a) Letter of 10 January 1947 from Herr Erich Schmidtke, Kassel-Waldau, Alte Nuernbergerstrasse.
"b) Letter of 13 January 1947, from Herr Karl W. Gangolf, Ruesselheim on Main.
B "a) Letter of 12 January 1947 from Herr Hans Winterstein, Frankfurt on Main, Leerbachstrasse 97.
"b) Letter without date from Herr Adolf Janko, Hachtel 63, (14a) District Mergentheim.
"5) I certify that to the best of my knowledge, no other information concerning the flight of prisoners of war with the help of an aeroplane have not reached attorney Dr. Bergold.
"Dr. Bergold subsequently made further inquiries based on the letters as under 4)b with regard to the incident at the Messerschmitt works in Regensburg-Obertraubling.
"(signed) Kaethe Herbst "This is to certify the correctness of the above signature of Fraulein Kaethe Herbst, Nuernberg, Kleestrasse 23, made in the presence of attorney Dr. Friedrich Bergold.
"Nuernberg, 31 January 1947 "(Signed) Dr. Bergold" The attachment signed, 1st Letter, Erich Schmidtke, Kassel-Walday, Alte Nuernbergerstrasse on the 10th of January 1947:
"Dr. Friedrich Bergold, Attorney, Nuernberg, Palace of Justice.
"In answer to the enclosed press notification published in the Kasseler-Zeitung of January 10th, 1947, I can inform you that the incident in question occurred on the airfield of Prenzlau, Uckermark."
"Uckermark" means UK.
"With regard to the fate of the prisoners, I regret not to be able to give you any information.
"I was myself commander of a labor detachment at that time. This incident, owing to its rather peculiar nature, was much discussed.
"In case it should be of interest to you, I would communicate with some of my former comrades and ask them for information.
"Yours truly "(Signed) Erich Schmidtke "(2nd letter) "Karl W. Gangolf, Ruesselheim on Main, 13 January 1947.
"Dr. Friedrich Bergold, Nuernberg, Palace of Justice.
"I read a notice in the Frankfurter Neuen Presse on 10 January 1947, in which you ask for information concerning the "Escape of two prisoners of war by aeroplane". About this I would like to give you the following information:
"In the year 1944 two foreign prisoners of war used an aeroplane on the airfield of Prenzlau-Uckermark to make good their escape. On this airfield the pilot school A 12 was stationed. I do not remember whether the flight took place in February or in Autumn, 1944. I still remember the following concerning the incident: the two prisoners of war were wearing the uniform of the German Luftwaffe, of the rank of master sergeant, and are said to have stayed at the air base for several days making themselves acquainted with many installations. It was remarked that they were wearing their hair rather long and that only one of the two entered into conversation. Nobody ever heard the other talk. The aeroplane used was a Bucker 181 which was rolled to the fuel station by a student pilot. Fueling completed, the one in the uniform of a master sergeant requested the student pilot to get out as he had to make a test flight. The two prisoners then boarded the plane and flew off. Nothing more was heard with regard to the fate of the two. This incident was discussed with great interest and we figured out at the time that with the quantity of fuel they had with them, they could only fly from Prenalau to Sweden.
"Perhaps this information is of value to you.
"Yours truly "(Signed) Gangolf "(3rd Letter) "Hans Winterstein, Frankfurt on Main, 12 January 1947, Leerbachstrasse 97.
"Dr. Friedrich Bergold, Attorney, Nuernberg, Palace of Justice.
"Dear Dr. Bergold, "In the "Frankfurter Neue Presse" I read today the article "Who can give information?"