THE PRESIDENT: Has this document been translated and will it be introduced as an exhibit?
MR. GLANCY: It has been translated, Your Honor. It is being distributed, and I am offering this copy for the archives of the Court.
THE PRESIDENT: Very well.
MR. GLANCY: It is Document NO-5156 and will be offered now as Prosecution's Exhibit 178.
THE PRESIDENT: Mr. Glancy, this might be a good point at which to suspend for the morning recess.
MR. GLANCY: Thank you sir.
THE PRESIDENT: The Tribunal will now be in recess.
( A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Mr. Ferencz, before you begin your cross-examination the Tribunal will announce that we will recess today at 12:15 instead of 12:30, and then reconvene at 2:15. You may proceed. BY MR. FERENCZ:
Q. Defendant Jost, there are a few points I would like to go over with you again in order to clarify some of the statements you have made. You have stated that on the 29th of March, 1942, you became fully aware of the Hitler order which meant the killing of defenseless people, is that correct?
A. May I first say something about a document which was previously submitted?
Q. Just a moment. If you please, I will ask you the questions in a very specific way, and I would appreciate it if you would speak up and answer the questions briefly and concisely and to the point. We will return to the document where you left off, and at that time you will be able to give as full an explanation as you care to make. Now, I ask you again, is it correct that on the 29th of March, 1942, you became aware of the Hitler order to kill defenseless people?
A. At the latest, at that day, yes.
Q. Specifically, who told you about this order?
A. I already said the former adjutant of my predecessor Stahlecker told me about the existence of this order, without being able to show it to me in a written form because it did not exist in a written form.
Q. And he gave it to you also as an order for you to carry out, is that correct?
A. No, he could not do that as an adjutant, of course.
Q. You mean he just passed the order on in a conversational way and said, "Here, you are arriving as commander of a unit, let me tell you about this order just for conversation, not for you to carry it out," is that what you are trying to imply?
A. No, An adjutant does not have the power to tell me to carry out an order.
Q. But he was passing on an order from Hitler. Was he telling you about it saving, "This is a Hitler order," just so you would be aware of it in a conversational way, or so you would know what your duties were to be?
A. He merely informed me about it upon my request to give me the Einsatzkommando orders, which he spoke about. He did not show it to me in a written form. It was made known to the Einsatzgruppe chief before an assignment was given to him.
Q. I realize it was met in a written form, but when an adjutant tells you that Hitler has ordered what defenseless women and children will be shot, don't you interpret that as telling you that you are to continue to carry out that order?
A. I already said that an adjutant does not have the possibility of telling a superior to carry out an order.
Q. What did you do immediately upon hearing this order?
A. I called up Berlin and tried to get in touch which Heydrich.
Q. Did you get in touch with Heydrich?
A. No, he was not there; he was on the road.
Q. What did you do after that?
A. About two days later I decided to go to Berlin In order to clarify the situation, and at that moment Heydrich, by superior, arrived in person.
Q. Why did you want to clarify the situation, was it because you were not clear as to exactly who was to be killed or was it you didn't believe that Hitler had given such an order? Why was it that you decided to call Heydrich or to go to Berlin?
A. In order to try, to have my assignment revoked.
Q. You have heard the Defendants Ohlendorf and Neumann testify from the stand that it would have been impossible or cut of the question to try to have this order revoked, have you not?
correct? the question to raise such a matter with anybody in Berlin. A Hitler order was not to be questioned. Now you tell us you did go back to question that order. How do you reconcile that with, the statements made by Ohlendorf and Naumann?
A These are two different matters. I wanted my position to be revoked. About the order, I asked Heydrich whether it could not be revoked for the Reich Commissariat, for there were no Jews; despite the existence of the order and despite the fact that the territory was under the domination of the Germans there were Jews and so I asked them whether this order could not be revoked for that area. order, is that correct? Berlin? be revoked for this area.
Q Just a content. We are back in Berlin. You said you went back to Berlin when you heard about the order in order to try to have it changed or to have it changed insofar as it affected you. Now I ask you just to clarify that statement, did you or did you net try to have the order revoked while you were in Berlin?
A I was not in Berlin at all. I wanted to go to Berlin, but then Heydrich case to Riga and in Riga the conversation took place. The trip to Berlin never took place, because Heydrich arrived in Riga on surprise.
QWell, when Heydrich arrived in Riga -- Let me say it this way: When you got to Riga, you tried to call Heydrich by telephone and he was not there.
A few days later he arrived in Riga at which time you tried to get him to revoke the order, is that correct?
A I asked him whether it wasn't possible to have this order revoked for the Eastern Territories.
Q Why did you do that? carried out on the basis of this order that the reasoning Jews be killed. be carried out when it was an order involving the killing of defenseless people, is that correct?
A May I have the question repeated.?
Q The question is: Since you told Heydrich that you didn't want the order to be carried out, to have it revoked at least for your area, didn't you then, in effect, tell him that a Hitler Order was wrong and should not be carried out?
A No, I did not tell him that. I merely asked him whether the order could not be revoked.
Q I am asking you why did you do that? Did you think the Hitler Order was wrong to kill defenseless people or did you think it was too difficult to carry out, or did you think now you should use those people as laborers? What was the motive behind your trying to have a Hitler Order revoked? misfortune.
Q What do you mean by misfortune? Do you think it was wrong to carry out this order? Did you think it was not necessary for the security of the Reich? immeasurable misfortune for the victims, that that will explain matters, to be killed, but Hitler considered it necessary for the security of the Reich and Ohlendorf and Neumann have explained that it was necessary to kill children, because the future security of the Reich would be endangered.
Therefore, it was correct to have such an order and to carry out such an order. Do you agree with that reasoning? Ohlendorf's reasons. I personally had the feeling of what had happened or what could happen - and this feeling overwhelmed me.
Q You are not answering the question. You are an attorney, are you not?
Q Well, please answer the question. Do you agree with the reasoning that defenseless people, Jews, particularly, should be shot or should have been shot to assure the security of the Reich? existing could be carried out humanly. The order exited and it was binding to everyone, with all the consequences of such an order of the Chief of State. Thinking about the details whatever it was necessary, etc., I don't think that one could make this analysis in detail in such a spiritual state of mind. in such a spiritual state of mind you stated you objected to this order. You went to Heydrich and you said you wanted to have the order revoked. You must have thought about the order. I just want to know what was in your mind, for what reasons you wanted to have it revoked. Did you think the order was correct? Did you think it was too difficult to carry out? Did you think it was wrong? What did you have in mind when you went to Heydrich to revoke the order?
Q How, just a moment. You say, then, that you thought the Hitler order was a wrong order, is that correct?
A It was not right. no, I did not consider it as right, I could not bring myself to think it was right.
the order was wrong? it, you did not think it was correct, which was the same thing. Did you mention this to Heydrich? did not exist to have the order revoked for the Eastland; and the second sentence, which contained my personal opinion. He had known me for eight years and I thought I had to tell him that I could not imagine how I was to carry out such types of measures. That is the content of my explanation in two sentences.
A The first sentence shows that I objected to this order. Otherwise, I would not have asked for its revocation. The second sentence shows, my personal human attitude. wrong, did you? was sufficient in the situation, for it was a matter of being successful and asking and not the formulation in detail, and one could not think about for hours, years and months previously, but one had to make it right at the moment. morally wrong? when I got it. order, even though it came from Hitler, is that correct?
already. Here it is only the question whether such an order given by the Chief of State is legal. The next question, what can one do against such an order, or how can one express one's opinion, or what can one do about such an order for having it revoked; and there is a further question whether one can carry it out, for there are many things in this world which are absolutely legal, which are terrible in carrying them out, but that doesn't change the legality, but if I am prepared to say other things which are not pleasant either, so, for instance, the Potsdam Agreement is absolutely legal there can be no doubt about it ....
Q I don't like to interrupt, but, perhaps, will you just state your point? What is the point you are trying to make with your answer? of State.
Q I didn't raise the question of legality at all. I asked you morality is connected with the fact of whether the order was given by the Chief of State and therefore is legal. repulsed by it. I thought I understood you to say earlier that you thought such an order was wrong. Are you now saying that you thought it was legally wrong? That is why you were repulsed by it, though morally you thought it was correct and necessary? existed and was there and I thought it impossible of execution and as I expressed it yesterday, I thought there were enough people who would do something against this order, and see that it was revoked.
Q Why was it impossible of execution? Some of the other defendants have explained how they executed the order. Why do you say it was impossible of execution?
certain groups, I was not able to pass on this order. I just was not in a position to do so.
Q You mean you were too work to carry on and pass on this order?
A If I had been weak and soft, I would have passed it on. I think this needs tremendous strength not to pass this order on.
Q But why didn't you pass the order on? That is the point I am trying to raise. Did you think it was morally wrong and did you think it was physically impossible? What was the reason why you refused to pass or an order from Hitler? the result of the carrying out of the order would be terrible for many thousands of people and that this over whelmed me so much that I just could not pass on the order. If you can imagine such a situation - I don't know whether it can be reconstructed by a third person, at least this was sufficient for me, and I would like to add this: I looked at the problem from a historical point of view and I locked for examples in history where another things the First World War. when Monkey threw out the Armenians for military security and transported then to the Sinai desert and thereby killed 2,000,000 Armenians in a terrible way. This was an extermination like only to say by this example that I looked into this situation from all sorts of views and considered it. because you thought it morally wrong?
A Yes, I have given my statement. It isn't possible today, after 51 years , to give a detailed analysis of the feelings and thoughts. whether it is right or wrong, or whether it was right or wrong to kill defenseless people?
everything to see that the order was revoked. More than that I could not do.
Q Well, you certainly did not consider it correct. Let's pass on.
THE PRESIDENT: Mr. Ferencz, just as a matter of chronology, I would like to know when he received the written order. Witness, you learned of the order orally on March 29, 1942. When did you receive the written order?
THE WITNESS: The end of April or beginning of May.
THE PRESIDENT: And between the end of March and the beginning of May on what orders were you operating?
THE WITNESS: I then was not operating at all, but the explanation of Heydrich "that may be we will come to a resettlement" aroused the hope in me that actually a change might he possible. That I was wrong in believing in this hope shook me, very much, because, after all, I did get the order later, for I had not counted on such a possibility.
THE PRESIDENT: You May proceed, Mr. Ferencz. BY MR. FERENCZ: revoked?
A "Perhaps we will come to a resettlement." a Hitler order? manner Heydrich could speak with Hitler about this matter. I did not know what the two men did discuss between each other. I absolutely could not survey that.
Q What did you judge from his answer?
A I beg your pardon?
Q You say he said they would see if they couldn't change the order or have it revoked, is that correct?
A Who said that?
A Heydrich said, "Maybe we come to a resettlement". whom did you receive it from? signed in his own hand.
Q What did, you do at that time?
DR. SCHWARZ (Attorney for the Defendant Jost): Your Honor, pardon me for interrupting, but I would like to call your attention to the fact that the interpreter mistranslated the word "Umsiedlung", as far as I have just been told with "change". I would like to point this out so that there will be no misunderstanding.
THE PRESIDENT: The interpreter express the situation linguistically because the Tribunal, naturally, can't pass upon the suggestion of counsels.
INTERPRETER IDEA: The word used here is literally translated by "resettlement" , so that the defendant may mean that Heydrich said the headquarters could be changed to another location. I can't quite make out what he means. He just used the word, "resettlement".
THE PRESIDENT: Does that satisfy counsel?
DR. SCHWARZ: Yes, your Honor.
THE PRESIDENT: You may proceed, Mr. Ferencz. BY MR. FERENCZ:
Q Then on this point. Heydrich's reply to your objection to the order was that there might be some resettlements, is that what the answer was supposed to have been?
A That's how I understood him."Perhaps we will arrive at a resettlement." by Heydrich telling you that all the Jews were to be executed, is that correct?
executed? correct? is that correct?
Q But it was by Heydrich addressed to you, is that correct?
Court No. II-A, Case No. IX.
Q. You stated this morning that as chief of Einsatzgruppe A you followed Heydrich's instructions, do you remember that?
A. What?
Q. As chief of Einsatzgruppe A you followed Heydrich's instructions, do you remember that answer?
A. That Heydrich gave me social instructions, yes.
Q. I am asking you -- please answer the question -you stated this morning that as chief of Einsatzgruppe A you followed Heydrich's instructions, is that correct? discussed this morning.
Q. Pardon me for interrupting. Will you answer the question first, and then explain it. I think it will clarify matters. I ask you again, did you say this morning that as chief of Einsatzgruppe A you followed Heydrich's instructions?
A. ...that I say my job as chief of Einsatzgruppe A the way Heydrich had given them to me, with the limitation the way I described it yesterday as well as this morning.
Q. Now, you have stated that the first time you objected to Heydrich he said - "perhaps there can be some resettlement" - and three weeks later you received an order to kill children, and that later on there were some modifications, is that what you are trying to say?
A. That can't be understood the way it came through.
Q. Are you trying to tell us that although the only official reply you received from Heydrich upon protesting the Hitler order was a direct order to you to carry it cut, that later on Heydrich came around and made some special concessions to you and gave you some special instruction, is that correct?
A. I said yesterday, that whether what Heydrich told me was true or was what he meant, or whether it was camouflaged, or whether he told me to make it easier for me to assume my command, that I don't know. But I believe the first. That is why I was the more surprised when a few weeks later an order to me personally actually did arrive; for this order proves that until that time I did not get any orders from him personally to carry out these measures. Otherwise the second order would not have been necessary.
Q. When you got the written Heydrich order did you carry it out?
A. No.
Q. In other words, you did not carry out an order you received from your military superior, is that correct?
A. I did not pass it on.
Q. What was your rank at that time?
A. Brigadier General, and Brigadefurhrer.
Q. What was your rank a year later?
A. The same.
Q. In other words, though you did not carry out an order from your superior, you were not shot, you were not tried, - a year later you had the same rank you had at that time, - Brigadier General in the SS... Correct?
A. If you heard this yesterday, as I described it, it is understandable.
Q. I am more interested in the conclusion as being clearer. Is that the correct conclusion?
A. I did not pass on the order, and after a few days I decided, even if it was hopeless, to go to see Heydrich.
Q. Please, answer the question. Is that a correct conclusion? That you did not pass on or carry our an order from your direct military superior and a year later you still had the same rank of Brigadier General in the SS.
.. Is that correct?
A. Because of the death of Heydrich, nobody came to know that I did not pass on this order, for you can't demand of me today that I should report to Himmler about an order which I did not passion. That would have been a little too much.
Q. Your answer there is yes, with the explanation you have given. Is that correct? that you did not pass on the order, you did not carry out the orders of your military superior, yet a year later you were still a Brigadier General in the SS?
A. I did not pass it on, and I was still a Brigadier General a year later, yes.
Q. Did you receive any decorations in that year, in between?
A. Between -
Q. Between April 1942 and April 1943?
A. In April 1942 I got the War Merit Cross, First Class. That had been applied for a long time ago, and had nothing to do with the activity in the East - for such decorations don't arrive at the moment they are applied for. It takes months or years. Otherwise, I did not get any kind of decoration.
Q. Let me make my point clearer. You have stated or implied that thereason you were still a Brigadier General in the SS a year after having refused to comply with this order, and not complying with it, - the reason you were able to do that was because Heydrich was killed and nobody else knew that you were violating a Hitler order. But I am asking you, isn't it a fact that every SS man of any rank of importance knew in April 1942 that there was a general order to kill all Jewish children?
A. At that time, and later, not every SS man knew that.
Q. Did almost everybody know it?
A. I did not talk to the many thousands of SS leaders.
Q. I realize that. I realize that. And you understand my question.
A. The SS leaders who were assigned in the East probably would have known about it. Whether they knew the order in its wording and in its details, I don't know.
Q. In other words, most of the SS people, or a great many of them in the East, know that there was a general order existing to kill all Jewish children, so that if you did not carry out that order, someone besides Heydrich would have known that you were violating the order. Isn't that correct?
A. If no one knows the special order, and no other SS leader or any other person can than draw any conclusion against me.
Q. Is there any difference between a special order to kill children below 16, and a general order to kill Jewish children or all Jews? Or, wasn't the special order part of the greater order, the broader order, and if you didn't carry out even the part, it would have Green more apparent?
A. I said yesterday that this order, of course, was a result of the general Fuehrer Order; yes, that's true. For economic reasons, or for reasons of labor allocation, it provided for a limitation just at those ages - which was the special tragedy of the situation.
Q. My question is this. Please direct your attention to it, and your answer to it. You stated that it was generally known among the SS that there was an order from Hitler to kill all Jews.
You stated that you did not carry out your special order to kill all Jewish children up to 16. My question is: Would it not have been apparent from those two orders, and the fact that you didn't carry out the special order, that you were disobeying the orders of your superiors? Yes or no? Answer the question, please!
A. I must ask you to have it repeated, please, it was too long.
Q. For a lawyer you are very difficult to under stand questions. I repeat the short part. Would it not have been apparent to all SS officers when you did not kill Jewish children, that you were violating your orders?
A. No, that may not have been apparent.
Q. How do you explain that, that it would not have been apparent?
A. I just said that at the time of my arrival in this area there were some Jews still living there, who had not been killed even though they had been under German domination for 9 months. So that if there is no solution of this order or a complete carrying out of the order, would not be very conspicuous at the moment because in order to provide labor one had not completely carried out the order. Otherwise it would have had to have been carried out by that time, In 9 months it could have been carried out.
Q. What happened to all the Jewish children in your area?
A. They remained where they were.
Q. And nobody knew that you were not carrying out Hitler's order?
A. Outside of those two above mentioned people, no one knew that. They had read the order.
MR. FERENCZ: I think this would be a good time to recess, your Honors.
BY THE PRESIDENT:
Q. Just to recapitulate what Mr. Ferenz has been putting to you... It was generally known by SS leaders in that area that an order existed that all Jews were to be liquidated. You did not execute that order either before you received the written order with this limitation, or after. What Mr. Ferencz has been endeavoring to get from you is a crystalline answer - clear and specific - as to whether it did not become more obvious to those other SS leaders in your area, that you were flat-footedly refusing to obey an order which came down from the Fuehrer himself. Now just answer that question directly. Was it generally known?
A. At least, it was known to the members of my agency
Q. And it could be apparent to all the other SS leaders in that area?
A. I don't know.
Q. And yet nothing happened to you?
A. Through the death of Heydrich -
Q. Yes, we know that.
THE PRESIDENT: We will recess now until two-fifteen.
(The Tribunal recessed until 1415 hours.)
(The hearing reconvened at 1415 hours, 23 October 1947.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
CROSS EXAMINATION (Continued) BY MR. FERENCZ: had received an order to kill children low of the age of sixteen and people above the age of thirty-two, that you had refused to carry out this order, and retained your grade, at least for a year, as BrigadierGeneral in the SS. I would now like to move to your activity as commanding officer of Einsatzgruppe A. You were the commanding officer of Einsatzgruppe A from the 29th of March until the 2nd of September, 1942, is that correct? that time?
A In any case there can't have been many.
Q Can you give us an approximation?
THE PRESIDENT: Witness, please try to get a little closer to the microphone and speak into it. number of dead during that time was very small, it must have been a very small number. BY MR. FERENCZ: command during the time you were in command, is that correct?
Q I am not asking for details. You were the commanding officer. I am asking you if units under your command killed some people while you were in command?
Q You refuse then to answer the question?
THE PRESIDENT: Witness -
THE PRESIDENT: You must be a little more direct in your answers. Now, you just can't avoid a question like that with a shrug of the shoulders. Now, please try to answer the question of the Prosecution, because these questions are relative. Put the question again.
THE WITNESS: Yes, yes. BY MR. FERENCZ: command while you were in command? already explained during my examination that there could only have been small numbers. All that concerned me was that the order given to me was kept back by me as far as possible.
Q Why do you presume that such killings took place? owing to some situation there might have been the possibility that executions did occur. There might have been partisans; there might have been some Communist activist, or several of them, so that they had to act on the spot. killed by units under your command?
AAt the moment I cannot remember that. Certainly I do not remember any reports about mass executions during my time. individuals or small groups of individuals?
A I cannot definitely remember. That is impossible. For example, the one report that was discussed yesterday, the report where 22 died in Kauen and some 20 died somewhere else, I have read that, but I cannot remember now since I did not read the reports so carefully at the time.