Is that right?
AYes.
QYou have stated also that it happened sometimes, rather seldom, that Herrmann was away either for hours or for a day.
AI said for a day.
QAnd that there was no deputy in charge.
AYes.
QDid it happen sometimes that Herrmann and the officer who was in charge of Department IV were away at the same time?
AThat might have happened, yes.
QIf at such a time therewould have been an emergency case in the executive field, in the field of Department IV, the order to shoot somebody or people, or the order to arrest some people, or an order regarding executive measures, to whom would it have been left to order this measure?
AIn that case that would have been the other Police Officer or the other SS-Obersturmfuehrer who present who acted as deputy for executive measures because he was an expert on such matters.
QThat was an Officer?
A an SS-Obersturmfuehrer, a Police Commissar, a 1st Lieutenant.
QWould not that have been your task?
ANo. Apart from the face, Mr. Prosecutor, if I may add thisyou talked about executions. I doubt here whether this is a case which we can consider as an example - a person who was to be shot, say it is quite obvious in that case and would not depend on waiting until the Kommando leader would return in two hours or the same evening.
QMight well have happened? It would have been against security measures to take the boy with you. You have told the Tribunal yourself that it happened that the Kommando leader sometimes left the Kommando and left the marching orders to a deputy.
It could have happened in such a time that such a case would arise - anyhow it is a hypothetical question and it would not have been your task so I do not think you need to go into that much further.
Can you tell the Tribunal when you were transferred from Department I to Department VI of the RSHA?
AYes, in September 1943.
Q 1943
AYes, 1943.
QCan you tell us why this transfer was carried out?
AYes, when I passed my assessor examination I had completed my training as candidate for the leasing service. Therefore, I held the lowest rank as a member of the leading service. Therefore, I returned to the expert field of the SD which I left during the time of my training and study. At the time inquiries were being made which tasks the individuals would like to work on. I myself was interested in the information from abroad. I therefore asked that I would be assigned to this, Office VI at that time needed people for this particularly and, therefore, I was sent to office VI.
QYou learned quite a lot of things in the East about the activities of the Einsatzgruppen which, as you have told the Tribunal in direct examination, did not like very much. You have also told me just now that you were shocked by the fact that it was a summary procedure and that your units were to carry out executions themselves. Did you ever, after having returned from the East, try to leave the SD service?
ARepeatedly until 1944 did I try to be released for the fighting forces. In every case I was refused, After 1944 it wasn't possible any more because having been ill I was no longer able to do service in the fighting forces.
QWhich were your motives, Herr Fendler, why you wanted to leave the SD and go into the Wehrmacht? Was it for the reason that you wanted to fight on the front or was it for the reason that you considered that your work with the SD was not a work you wanted, for instance?
AThe reason was that I simply wanted to join the fighting forces. I considered myself too young, before 1943, just to study while the others were fighting. And, secondly, after 1943, I considered myself too young to work in the staff in Berlin and not to be with the fighting forces.
QSo, if I understand you then correctly it was not that you considered the SD to be an organization which did things you did not like? You just wanted to leave the SD for patriotic reasons as you wanted to fight on the front, is that right?
AAt the time I did not consider the SD to be a criminal organization, if I may use that expression in this connection.
QBut, nevertheless, you learned a lot about executions and killings and so on. Did you consider these measures about which you had learned in the East to be justified?
ANo.
QDid you consider them to be humane?
ANo.
QNevertheless you did you not want to leave the SD for these reasons? Is that correct?
AYes. If I may just explain this in one sentence, Mr. Prosecutor. I did not consider these things to be the affair of the SD. If I may explain this - in the Einsatzkommandos there were members from all parts of the SS working together. The SD itself held the smallest number among this. It was once worked out. I think it was only 38 and I knew from my own experiences, from my work until then, that executions and executive tasks were not being handled by the SD, that they merely handled information.
QYou have said that only 3% of the members of the Einsatzgruppen were members of the SD, is that correct, approximately?
AYes. To explain this, not in the entire organization, but in the reporting section, that is a formation of the SS.
QIs it not true that at least most of the officers were members of the SD, most of the officers in the Einsatzgruppen?
ANo, Mr. Prosecutor, if I may express it in that manner. Please excuse officers of the SD, were drafted into these Einsatzcommandos through unauthorized military power which actually had nothing to do with the SD as it had existed until then. It wasn't the initiative of these individual men and the work of these men in the Einsatzgruppen which is the subject being debated in this trial which resulted in the work done, but I don't know quite all the connections, whether Himmler or Heydrich were responsible for it.
THE PRESIDENT:The Tribunal will now take its afternoon recess for 15 minutes.
THE MARSHAL:The Tribunal is again in session.
THE PRESIDENT:Proceed.
CROSS-EXAMINATION (Continued) BY MR. HORLICK-HOCHWALD:
QMay it please the Tribunal, Herr Fendler, there are certain documents in evidence which show that in a time when you were second highest ranking officer in Sonderkommando 4b, people werekilled in great numbers by this unit, and I would like you to lllok now at Document Book II-A. This is on page 81 of the English, your Honor. Document NO-2938, Prosecution's Exhibit No. 44. The quote to which I refer is on Page 81 under the heading, "Page 14 of the original". It reads: "The Einsatzkommando 4b is at work at present in the Tarnopol area. It is planned to have the Kommando proceed to Preskurow. Out of the 54 Poles and Jews who had been working as agents for the NKWD, 8 persons, two of them being Jewish woman, could be arrested and executed, the remainder having taken to their heels apparently." It goes on: " At Tarnolop also 10 soldiers were found to be among the murdered in the prison, one of them being a lieutenant of the air force, 6 pilots and 3 soldiers off the mountain troops. Of the Jews assigned to the excavation of the corpses, about 180 were slain, partly in the prison court, party in the streets. Moreover, Jewish residences were destroyed by members of the Waffen-SS with hand-grenades and set on fire." Did you know anything about the things reported in this situation report?
AMay I clarify something about your introductory statement? I wasn't the second in command of the kommando.
QYou were second highest ranking officer, weren't you?
AThe second highest rank, not the second in command in the kommando.
THE PRESIDENT:Who was the second in command?
THE WITNESS:There was no on in general.
THE PRESIDENT:Well, if you are the second senior officer, who would be the second in command?
THE WITNESS:The second in command was that person who was appointed by the commander in each individual case.
THE PRESIDENT:Well, suppose he didn't appoint, suppose that the commander were killed, who would take over?
THE WITNESS:The senior officer present at that moment.
THE PRESIDENT:That would be you, wouldn't it?
THE WITNESS:That might have been me, yes.
THE PRESIDENT:Yes, proceed.
Q (By Mr. Horlick-Hochwald) Did you know, Herr Fendler, about the happenings which are described in this report?
AWhat is contained in Paragraph 2 which you just road, that is Paragraph 5, on Page 14 of the original of the 54 Poles and Jews who worked for the NKWD as agents, I heard about this here for the first time.
QWhat did you hear about the killing of the 180 Jews who were assigned to the excavation of the corpses of the members of the German Wehrmacht and were killed partly in the prison court and partly in the streets?
AI heard that excesses occurred, done by the Ukrainian population, and the Ukrainian militia, directed against the Jews in Tarnopol.
QDid you hear how many Jews were killed during these excesses?
ANo.
QBut you heard that the Jews were killed by Ukrainians, is that correct?
AI heard at the time that this had occurred and had been done by the Ukrainians, mostly by those who guarded this excavation work, that is the Ukrainians, and secondly, in the first hours of the occupation of Tarnopol, excesses also occurred done by the German troops against the Jews, because among the few hundred corpses, the figure of 500 is given in the reports, several German prisoners were found, which the Bolshevists, before they had left, had killed in a cruel manner.
The mutilated corpses were found.
QDid you know that this part of the German Wehrmacht who made these excesses were Waffen-SS units?
AI heard at the time that they were members of the German Wehrmacht, particularly the Mountain Corps had taken part, because they were found as corpses in the prison.
QWho was it who ordered these Ukrainians who killed the 180 Jews to supervise the excavations? Am I correct in assuming that that was a German agency who ordered these Ukrainians?
AIn this particular case I cannot give you any information. I can only make a general statement and draw a personal conclusion. This Ukrainians militia or the regular police, they were called different names in various localities, were always under the command, as far as I heard, of the competent local town commandant to whom they were subordinated, who employed them as provisional police.
QBut, as a matter of fact, Herr Fendler, you know something about these happenings here, so may I assume then that you knew that Jews here were deliberately killed either by members of the German Wehrmacht or by members of the German Waffen-SS or by members of the Ukrainian militia which was nothing else than a submit of some German agency in these places, is that correct?
AI did not quite get the question.
QIt is correct that you knew something about the happenings which are described here in this report, is that right?
AI have already said that I heard about it, that excesses did occur.
QYou knew also that these excesses were instigated and carried out by agencies either of the German Wehrmacht or of the German WaffenSS or of the SD?
ANo, I did not know that.
QBut you knew that it was instigated by the Wehrmacht, as you said, and you knew that the killers of these 180 Jews were Ukrainian militia which were active under German supervision, did you not?
AYes, I cannot say anything about who started the action originally and whether actually somebody instigated this action. At the time I heard that spontaneous actions occurred which are to be regretted and I was sorrowful about that.
QWho were the people who acted spontaneously? They were Germans and people who had authority from the Germans, is that correct? That means the Ukrainian militia, is that correct?
ANo. As I just said, at the time when I heard about these things, I gained the impression, that no authority existed, but that these were merely excesses done by individuals who then, as it is usual on such occasions, increased, because they were not conducted and not corrected.
QBut you know at least, that in Tarnopol a great number of Jews were killed, is that right?
AI did not hear of a great number. I did not hear any figure concerning this or concerning these excesses. The figures mentioned in the reports of events here I saw for the first time when I read these reports here, during the trial.
QDid you hear how many - or what did the people say who told you the story about these excesses, approximately how many Jews were killed during these excesses?
ANo, I said already that I did not hear any figures mentioned about this.
QI had a feeling that you made the statements solely about executions. You have told us now a story about excesses so I would ask you whether you know or whether you were told how many Jews were killed during these excesses?
AI beg your pardon. It appears we have been talking on different subjects all the time. I only talked about the excesses.
QYes, that is what I asked you.
AI did not hear any figure concerning the victims of these excesses.
MR.HORLICK-HOCHWALD: You will see in document book IIC, the document I am referring too your Honors, on Page 49 of the English. It is Document No-2934, Prosecution's Exhibit 78.
THE PRESIDENT:What book?
MR.HORLICK-HOCHWALD: II-C, on page 49. It is the first paragraph under the heading, "Einsatzkommando 4b". This is an operational situation report which is dated 16th of July - no, I am sorry, 11th of July, 1941, and it is reported here that Einsatzkommando 4b has finished its activity in Tarnopol. 127 executions. Parallel to that, liquidation of 600 Jews in the course of the persecutions of Jews as induced by the Einsatzkommando.
Q (BY Mr. HORLICK-HOCHWALD) Of about 127 executions, if I am not mistaken, you have told the Tribunal that you know only about twenty to thirty, is that correct? You do not know about the--
AThese were carried out by the others.
QYou don't know about the others, approximately one hundred?
ANo.
QWhat do you know about the liquidation of the 600 years in the course of the persecution of Jews as induced by the Einsatzkommando?
AI have already said that my previous testimony concerning the excesses referred to the statements made in this report here as well. I cannot make any statements about this.
QBut, is it not patently clear from this entry that these excesses were by no means spontaneous, as you have said, but that they were induced by the units of which you were the second highest officer, isn't that right?
AThe report shows it in that sense as you just described, Mr. Prosecutor. I personally can only doubt its credibility.
QWhy? You have just told the Tribunal that you have no personal knowledge of it, so either you change this statement or you have no reason to doubt the correctness of this report. I have questioned you at great length, and you have said, "I do not know a thing, I do not know who carried it out; I do not know whether it was instigated; I do not know how many people were killed." Why, then, do you doubt a report which gives all the details about which you profess, just now, to have no knowledge? It can be right; cannot be right, because according to what you have said just a minute ago, you do not know it. Am I mistaken in that?
AMr. Prosecutor, I don't think that the one testimony excludes the other one. I said that looking back at it now I doubt the correctness.
QWhy?
AI doubt the credibility of this report, firstly, because I cannot imagine it according to the character of the kommando chief, that he should have given such instructions or that he should have approved of such a thing if he had heard about this in time and could have stopped it, and secondly, I heard that the kommando leader expressly prohibited members of the kommando to take part in the excesses at all.
QWhen did you learn that?
ADuring my stay in Tarnopol.
QWhy did you give this order?
AI did not give this order.
QWhy did he give it?
AAs a preventive measure.
QSo none of the officers to k part and none of the men took part in these excesses. Nevertheless, he issued an order telling them that it was not permitted to take part in it. Wouldn't it be more logical to assume that some, at least some of the members of the Einsatzkommando, the Sonderkommando, participated in them, and that the result, of this participation was the order by Hermann?
ANo, I don't think so. This was how he cared for it.
QCan you tell the Tribunal whether Hermann was in Pretsch?
AYes, Hermann was in Pretsch.
QCan you tell the Tribunal whether Hermann was at the meeting of leaders where Streckenbach handed down the order about the killing of the Jews?
AI am not certain of this.
QDo you think that he was ignorant of the existance of such an order?
ADuring the time of my assignment "I heard nothing about it, which might have given me reason to assume this.
QSo you are of the opinion he did not, or you are of the opinion he did know about the Fuehrer Order?
ABoth possibilities exist, and I can only give a theoretic reply. If a kommando leader had received this order in Pretsch, then he did not have to hand on, of course.
QBut is it not very unlikely that he was ignorant of this order? You think that he --- Was he a priest?
APlease?
QWas he a minister?
ANo.
QHis superiors were allowed then to tell him about the order. Or was he an officer?
AOfficers; by description I would call him an officer. He was not a soldier.
QWhy should he having had knowledge about the fact that the Jews were to be killed, why should he have been a safeguard for you, that this order which is in accord with the Hitler Order, was not carried out?
Why should he have reluctance to kill these 600 or 180 Jews? It was a part of the order to instigate pogroms, to instigate such excesses. The Defendant Ohlendorf has testified here on the stand that he was requested by the RSHA to instigate such pogroms, and that he refused to do so. Why should the person of a Sonderkommando leader be a safeguard, if that was not carried out in contradiction to this document?
ANo, this would be a conclusion going too far. Mr. Prosecutor but I would like to add something here. If a kommando leader in this case - these are assumptions and conclusions of mine if a kommando leader had received the order in Pretsch, then he personally could have decided not to carry out this order to its full extent, but to limit it to that extent which he considered necessary in each individual case. His announcement in Lemberg was therefore accordingly. I shall also talk about this now because you indicated indicated it. If in Berlin, I bog your pardon, or rather in Pretsch, he received the order to instigate pogroms, I cannot say this from my own knowledge, because he did not talk about it, at least not with me, and if he did not want to do it, then the possibility existed for him that he reported to Berlin the fact that a pogrom had occurred in Tarnopol and described it in such manner as if it had been done on his initiative.
QBut from personal knowledge you don't know anything about it?
ANo.
QWill you turn now to Document Book II-A. This particular quote, your Honors, is on Page 44 of the document book. It is Document NO3144, Prosecution's Exhibit 38. It is said here that Special Kommando -
THE WITNESS:I beg your pardon, what page of the original, please?
MR.HORLICK-HOCHWALD: It is Page 4 of the original.
THE WITNESS:Thank you.
Q (By Mr. Horlick-Hochwald) Under the heading "Einsatzgruppe", "Security Police Measures." Page 44 of the English, your Honors. The next to the last paragraph form the bottom, it says "Special Kommando 4b, in the period between 13 and 26 September, executed 103 political officials, 9 saboteurs and looters and 125 Jews were killed for the simple reason that they were Jews? Otherwise they would have been either labeled as political officials or as saboteurs or looters, or I do not know for what crime, but is it not patently clear from this report that these 125 people were killed for the simple reason that they were Jews?
AThe report does not reveal this very obviously, and I think the possibility exists that these were Jews who actually connected with matters and events which would have listed them in the other categories as well, or classified them as such, but they were classified individually because perhaps it was required for the reports that in each individual case the Jews were to be classified separately.
Q.Did you participate in the drafting of the reports which were sent from your Sonderkommando to the Einsatzgruppe?
A.No, I talked here about an assumption.
Q.How did the reports from the Sonderkommando to the Gruppe, how were they drafted, how were they made? Am I correct in assuming that you made the SD reports to the Gruppe?
A.I made my reports to the Kommandofuehrer and he decided that they were used after that. In most cases he handed them on himself, that is, he handed a note to the Gruppe, or he handed them on to the Wehrmacht.
Q.Did you ever see such a report, that was made by the Kommanda Fuehrer?
A.An SD report?
Q.A complete report which was entered.
A.No, I don't think he made complete reports buy that does not cover individual reports so that he saved work; that material submitted by theexperts and the reports submitted by the experts he handed on was just a note or a covering letter or else he would have to require everything.
Q.If I want to sum up your testimony though, is it correct that you know and know that at a time when you were in the East the Jews were killed there in great numbers?
A.What do you mean by in great numbers?
Q.I understand you to have said the killing of 20 to 100 people is already a great number of people. Of course if you compare it with other numbers of situation reports we have heard here it might be possibly a smaller number but I just want to say approximately 50 or approximately 100 at a time?
A.I heard that Jews were being shot in the East at the time when I was with Sonderkommando 4 B.
Q.I want to turn now to your affidavit which is in Document Book 3-C, your Honors, on page 55, document NO 4144, Prosecution Exhibit 142.
Did you sign this affidavit, Mr. Fendler?
A.Yes.
Q.Did you swear to it, after reading it through?
A.Yes.
Q.Did you have the opportunity to make changes in this affidavit?
A.Yes, and no, Mr. Prosecutor. A few important minor matters I think of corrections in typographical errors --were allowed me but a few additions which mattered to me and certain impressions which I wanted to clarify unfortunately I was not allowed to make.
Q.May I ask a simple question then. Why did you sign the affidavit?
A.Because I was no native.
Q.Were you under duress when you signed the affidavit?
A.Not while signing, no.
Q.Do you now want to say that you were under duress before the signing of the affidavit during the interrogation by Mr. Warterberg?
A.I would almost like to say that; not a physical duress.
Q.What kind of compulsion was it then?
A.Two kinds. Mr. Wartenberg first threatened me with more severe arrest, and secondly, he threatened me with extradition.
Q.Extradition to whom?
A.I beg your pardon?
Q.To whom?
A.He threatened to extradite me to the Czechs.
Q.Did you have a fear the extradition to the Czechoslovakian Government?
A.No, I told him that.
Q.So that was no duress?
A.I was not so sure whether I would be extradited even if I was not guilty at all.
Q.If you are not guilty and not extradited you are better off than here.
Here you are under indictment?
A.At the time I was not indicted; I only assumed that I was called here to be used as a witness. When signing this affidavit I did not know, as I have already said during my direct examination, that this would be used as evidence against me.
Q.Would you have changed your testimony in your affidavit if you would have known that you were to be indicted?
A.I would have completed it and clarified it in order to avoid misunderstandings.
Q.Did your counsel know about this fact which you have told the Tribunal just now when Mr. Wartenburg was interrogated here as a witness from the 6th to the 7th of October?
A.I don't know for certain whether at that time I had talked about it to my defense counsel Dr. Fritz; he only took over my defense a few days before the trial started.
Q.That was considerably later and it was made clear by the Tribunal to all defense counsel that Mr. Wartenberg would be at the disposal of defense counsel for cross examination just for one reason, in order to find out all the interrogations were conducted by him and how the affidavits were made out. I have checked the record today and I did not find any question which was put by your counsel to Mr. Wartenberg, the only competent witness present. Can you explain to the Tribunal when Mr. Wartenberg was at the disposal of defense counsel for cross examination?
A.If I remember correctly at the time I believe the Tribunal established that corrections or supplements on the contents could be made during the proceedings by each one of the defendants. I, on my part, had no reason to have Mr. Wartenberg questioned about this because at the moment I was satisfied telling myself there are no obvious mistakes or errors contained in the affidavit, but there are only a few explanations necessary in order to clarify matters and that I would have the opportunity to make the supplements finally as I tried to do during my direct examination today.
DR. FRITZ:Your Honor, may I give an explanation about this, since it is my duty as defense counsel. I don't know any more why whether I was absent on a journey - I didn't know that Mr. Wartenberg was being questioned and I wasn't present; secondly, these matters which Mr. Fendler just mentioned, I only heard about afterwards.
A few things, for example, the more severe arrest and the extradition, I only heard about them afterwards.
He only told me he wanted to make supplements in the affidavit where it said that he was the deputy of the Commando Leader Hermann and that he was unable to do this as Mr. Wartenberg told him he could supplement this later.
THE PRESIDENT:You have given an explanation as to why you weren't here when Mr. Wartenberg was ready for cross examination, namely, that you were on a trip, and the record will show that.
BY MR. HORLICK-HOCHWALD:
Q.Did I understand you then corectly that you say that with the exception of some explanation which you gave orally the con tents of the affidavit are correct?
A.Except for a few supplements which I wanted to add, yes.
Q.You have been in Czechoslovakia, have you not?
A.Yes.
Q.You were in Olmuetz, is that correct?
A.Yes
Q.Can you tell the Tribunal where your office was located there?
A.Yes, in the first days the Commando was housed or rather the office was located in the former Administrative Building of the Moravian Sugar factory or something like that was the name, in the Richard Wagner Square.
Then they were billeted in the building at the Senior Government Councillor in the former apartment of the District Captain.
Q.Is it true that in the same house of the Moravian Sugar factory there was also the Gestapo?
A.Yes.
Q.Did you ever learn while you were in Olmuetz what the Gestapo was doing there?
A.First I have to explain the following, that the small kommando of the SD, at the time as I said was in the same house under the same roof as the Gestapo, but they had a separate set of four rooms. This was some apartment with a separate entrance.
Court No. II, Case No. IX.
Q.You did not know anything about the activity of the Gestapo there in spite of the fact that your offices were actually in the same house?
A.I know and I heard about it, that investigations were made about persons who endangered or might endanger the security. These kommandos had been given a screening book for that purpose.
Q.Is it known to you that in Olmuetz when the Gestapo came in most of the Jews were arrested?
A.I can say the following here. I know that a great number of the Jews had escaped and therefore were not present any more. Whether most of them were arrested I cannot say. I know that Jews were arrested at the time; the ratio between the two groups, which I just mentioned, I can't say about exactly.
Q.Can you tell the Tribunal that most of the Jews who did not flee, who were still there, were arrested?
A.Whether the Gestapo arrested them or whether they already were arrested I cannot say.
Q.Then when did the Gestapo come in?
A.I don't know exactly any more whether it was 15th or 16th March 1939.
Q.When did the German troops come in?
A.The German troops arrived the same date.
Q.Who could have the Jews arrested before the Gestapo came?
A.That would have been possible by the Home Guard units of the ethnic Germans.
Q.Do you want to tell the Tribunal that this German Selbstschutz was in charge of the city before the German troops and the Gestapo came in?
A.If I remember correctly it was like this: That for a few hours no other authority existed in the city insofar as I recall because of unexpected snowfalls the coming in of the German troops was delayed, for many hours.
Q.And you presumed that during these few hours the German Selbstschutz arrested all the Jews?
A.I don't assume that they all were. I don't know the ratio of figures.
Q.Do you know what happened to these Jews?
A.I know that some of these Jews for some time were in the so-called camp Stefanau. This was an internment camp.
Q.What happened then?
A.I know then that this camp was dissolved. What happened to the individual inmates I cannot say.
Q.Were you in Olmuetz when war broke out?
A.You mean in September 1939?
Q.Yes.
A.Yes.
Q.Do you know most of the Jews who had returned either from Prague or were unable to flee were arrested, and then sent to Buchenwald? Is that known to you?
A.Yes.
Q.Do you know by whom these people were arrested?
A.That must have been done by the State Police at the time.
Q.Is it known to you that these people were arrested and sent to a concentration camp only for the simple reason that they were Jews?
A.No, I did not know that at the time.
Q.What did you think why they had been arrested?
A.For general security reasons as a precautious measure. That's how I heard people talk about it at the time, pointing out as they said at the time during the first World War the Home Front had been disintergrated because of Jewish elements.