It is therefore not a matter of regular soldiers and these people had been warned beforehand by these orders and they knew that if they armed themselves and fought the German Armed Forces that thus they would lose their lives.
Q. Perhaps you could tell us quite clearly what you mean by a partisan.
A. By a partisan I mean a civilian who is armed, therefore, carries arms and therefore is not a regular soldier.
Q. Is it known who, according to International Law, is entitled to be treated as a prisoner-of-war?
A. It is generally known to me that such persons are concerned who wear a uniform or some uniform badge, who carry their arms openly.
Q. If you had caught a partisan, what would you have done?
A. That depends on the situation.
Q. I mean, as a prisoner, how would you have treated him?
A. A partisan, as I am now describing him, would have been shot by myself.
Q. Did you receive any knowledge about the fact that members of the unit under you shot prisoners?
A. No, I never knew anything about it.
Q. I now come to another point. In the cross-examination, your joining the SD was discussed and you were asked why you remained in the service of the SD, although you received a lower rank than you had held in the Wehrmacht. Was the rank of decisive value to you, or was it something else that moved you to remain with the SD?
A. I should first like to answer the question of rank. I joined the SD and I became a department chief, a referent. This corresponded to a position which I held in the Wehrmacht before. As such I was paid. Therefore, I still received the same pay that I had received before from the army. The rank "Underscharfuehrer" of the SS formation SD is only a rank which was given to me as a member of this SS formation SD, but I was not paid according to it and that did not correspond to my activity, either.
Q. What was therefore decisive for you?
A. Decisive for me was the work. During my studies and also later practially before I became a soldier, I concerned myself with economy only and from the very beginning my aim was -- even after I had become a soldier -- to become an officer in order to be able to take part in an economic unit of the Army. I succeeded in getting one thing, but I could not find a position in an economic unit and therefore I joined the SD, Department of Economy, in order to carry on my profession.
MR. WALTON: May it please the Tribunal, the Defendant has gone very thoroughly into this same material which he is giving at the present time on his direct examination; about his aims and his training and his reasons for taking a position with the SD. My own opinion is that since this ground has been covered and covered thoroughly, that it serves no point at this particular time. It is in the record it's for consideration of all parties concerned in this case and to go over it at this time merely wastes the time of the court and of the rest of us here.
DR. GAWLIK: May I say something, Your Honor? The witness does not want to repeat anything that has already been stated, but he is supposed to clarify the following point: In the cross-examination he was asked, that it was unusual to be transferred to the SD with a lower rank than he held before and I want to clarify that it was not at all unusual.
That, as far as I remember, was at the end of the cross-examination, the question was, "Wasn't there something unusual." The prosecutor therefore regards it as something unusual that the witness, as a lieutenant in the Wehrmacht, should become a noncommission officer, an untersharfuehrer, in the SD and therefore I want to clarify the reasons why he had himself transferred to the SD. It is only a supplement of the cross-examination and I think that is is admissible in the redirect examination.
THE PRESIDENT: Dr. Gawlik, the clarification is entirely in order, but he has already given us that clarification. The very thing which you have just now mentioned was explained by him in detail. The Tribunal itself asked that very question which you have put and the witness replied in great detail. Now it isn't required of him to repeat an explanation, just because in cross-examination it is referred to again.
DR. GAWLIK: May I then put the following question, Your Honor?
Q. (By Dr. Gawlik): Was your rank decisive for the transfer into the SD or was it something else?
A. Decisive was the work and my job as a Department Chief, as an expert for economic questions. I only received the rank later on, although as far as the date goes, the retroactive date is shown as November, but I entered the service as a referent for economic questions. That was decisive.
Q. During the cross-examination it was further discussed -- I am now coming to another point -- whether you remained voluntarily in the SD. I ask you now, after the year 1939, would there have been a possibility for you to leave the SD?
A. No, leaving from the SD was impossible. I never succeeded even, although I applied in applications which I made out immediately after the war, to rejoin my own troop.
Q. Was your membership in the SD therefore after 1 September 1939 voluntary or not?
A. No, it was not voluntary.
Q. Furthermore, in the cross examination it was mentioned that you joined the Einsatzgruppe, and on another occasion the prosecutor asked you concerning your relationship with Ohlendorf, and he stated that you put yourself at the disposal of the Einsatzgruppe. I now ask you: Did you join the Einsatzgruppe or did you put yourself at the disposal of the Einsatzgruppe ?
A. It was a very unequivocal order of command to become chief 3 of an Einsatzgruppe.
Q. In detail mention has been made in the cross examination concerning your work of reporting and you were asked, or it was put to you that you sent reports to Berlin although you did not know whether these reports were true, and there were no further questions put in this connection. I now want to examine you redirectly concerning this question and ask you; in how far could you take a responsibility for the correctness of the reports?
A. In so far as I had to take over the reports from the commandos-
MR. WALTON: This line of questioning is in the nature of a cross examination on a cross examination. Now, if I understand the rules of evidence, the counsel for the defendant can touch on what he wishes to on what came out in direct examination, but to cross examine him on the cross examination is going too far. I want to object to this line of questioning.
THE PRESIDENT: Well, I don't think Dr. Gawlik intends to cross examine his own witness. He is of the impression that this matter which was brought out by you in cross examination is not entirely cleared up, and he is permitted to ask some brief questions for a further clarification, but, of course, he may not go into the matter entirely since the witness has already given his explanation. If the witness in any particular instance desires to modify an answer which he has given, to change it, of course, he is privileged to do so, but there is no point in having him repeat what he has already stated.
DR. GAWLIK: In order to clarify this point, Your Honor, I am of the opinion -
THE PRESIDENT: I think it is simpler if you put the question instead of telling me why you are going to put it. BY DR. GAWLIK:
Q. In how far can you take a guarantee for the correctness of your reports?
A. These reports which are being discussed here, I can take the responsibility for the correct transmission of the reports of the commandos to Berlin, but not for the actual facts which are contained in these reports, or, the facts on which they are based.
Q. Was it your task, and was it your duty to find out and examine the correctness of these facts?
A. It was not my task and I did not regard it as my duty.
Q. If a matter is mentioned in your reports -- does it then become evident that you are responsible for the facts?
A. No, that does not become evident from it. BY THE PRESIDENT:
Q. Let us suppose, Witness, that the report contains a palpable error, something very obviously wrong, would you send it on just the same only because it was reported to you?
A. If it was so obvious, Your Honor, then I would have noticed it while compiling my report. I would not have transmitted it.
Q. And to that extent you would correct the report which was sent on to you by a commando?
A. I could not have done so on my own accord, Your Honor, only the commando leader could have done so. He was to point it out to me.
Q. You would have contacted the commando leader and you would have said to him, "Now, you have reported this, which to me doesn't seem to be in accordance with the facts, now would you please tell me, whether this is right or not", would you do that?
A. I would have done so, Your Honor, if it had happened.
Q. Yes, so that nothing was sent to you which did not appear to be absolutely correct?
A. Well, according to my memory nothing struck me to be particularly out of the usual way that I would have had to clarify it.
Q. To that extent, therefore, you placed your approval on the correctness of the reports sent to you by the commandos?
A. No, Your Honor. I only took the responsibility for the correct incorporation of commando reports into the situation reports.
Q. Now, we are starting to go around a circle. You get a report from a commando, and there is something in this report which doesn't seem to satisfy you as being correct; what do you do, do you send that on to Berlin without inquiry, or do you inquire?
A. I said already that if it had been such a striking instance -
Q. Don't tell me what you said, tell me now, answer that question. You have a report from a commando, it contains something which doesn't seem right, what do you do, do you turn it over to Fritsche, the radio operator, and it goes out, or do you call up the commando leader and discuss it with him?
A. That would certainly have been discussed, Your Honor.
Q. Yes, and then you would have got the real facts?
A. In that case I would have got a correction or an explanation of the commando-leader.
Q. Yes. So, therefore, the reports which you sent in were satisfactory to you insofar as correctness was concerned?
A. In as far as they could satisfy me in my own H.Q., because I did not know the local conditions and local events. If nothing particular struck me.
Q. Did you ever have occasion to call a commando leader and ask him whether a certain item was correct or not?
A. I did not call a commando leader, Your Honor, but it is quite possible that I discussed it with commando leaders in general discussions which we had.
Q. Well, when I said "call in", I meant, did you communicate with him in any way to correct anything which appeared in a report?
A. Yes, providing the case which I have just mentioned, that something extraordinary happened.
Q. Yes, and then after the discussion you got the facts straight and that is what you put into the report?
A. The fact was corrected by the commando leader and then I put it in my report.
Q. So that, therefore, the number of executions reported by you corresponded with the facts?
A. I cannot say that, Your Honor.
Q. Well, then they never struck you as being wrong?
A. No, that never struck me, and it could not strike me, either.
Q. So that regardless of the number which you received, you were satisfied that that number was correct?
A. I had to assume that the figure mentioned by the commando leader was correct, Your Honor.
Q. Well, now, how many executions in all did you actually witness?
A. I only saw those two executions which I mentioned, Your Honor.
Q. In your affidavit you speak of having witnessed two executions while you were with Ohlendorf, but then in the following sentence of that affidavit you said that occasionally you would make inspection trips alone, the same kind of inspection trips which you made with Ohlendorf. On these inspection trips which you made alone did you witness any executions?
A. No, Your Honor. These inspection trips were of the same kind because during those inspections trips which I did with Ohlendorf I did not have to deal with my own work with the commando and, of course, in the last six months there was also the inspection of Tarter companies.
Q. Although I am now going to violate a rule which I imposed a little while ago, I would like to have you tell me now just where were these executions which you witnessed and which you told us about yesterday.
A. The first execution took place in the town, as far as I remember, Petschanka, Your Honor.
Q. Yes, and how many were executed?
A. As far as I remember, four or five people were executed.
Q. And what had they been accused of doing?
A. According to statements of commando fuehrer to the chief of the Einsatzgruppe they were guilty of sabotage.
Q. What was the nature of the sabotage?
A. They had acquired supplies. They had obtained supplies illegally, and they also burned a barn. That is what I remember, Your Honor.
Q. And in the second case how many were executed?
A. Again five or six cases.
Q. You are sure that is the number?
A. Well, anyway there couldn't have been more than six, Your Honor.
Q. What did you tell us yesterday how many were executed?
A. Again I can only have said the number five or six, Your Honor.
Q. And what did they do -- the victims?
A. They were looters who for that reason were shot.
Q. That was the nationality of these victims?
A. I am not able to say, Your Honor.
Q. Did you not make any inquiry?
A. No.
Q. How long were you in the Crimea with Einsatzgruppe D?
A. In the Crimea, Your Honor?
Q. Well, how long were you with the Einsatzgruppe?
A. If I don't count the interruptions when I was in Berlin, it was about 10 months.
Q. When did you join the Einsatzgruppe?
A. Approximately in the middle of June 1941 I was detailed, so I was with it from the very beginning.
Q. Yes. When did you go to Berlin?
A. Approximately the middle of November 1941, and I returned on Christmas Eve, on the 24th of December 1941. I was able to join a Christmas celebration. I can remember this exactly because I could give some members the mail from their families.
Q. You know that Schubert made an affidavit in which he said that you ordered him to conduct some executions, about this time?
A. I know this affidavit, yes.
Q. Do you have any explanation of how he could have made this mistake?
A. I can find no explanation, Your Honor, because I never gave him such an order, and this particular one I couldn't have given him at all, because I was not then in Russia.
Q. You mean you weren't in Russia at that time?
A. Yes, Your Honor.
Q. Now, when you first began to testify you said from 1936 to the end of the war you were not active in any other department but Department 3, is that correct?
A. That is correct, Your Honor.
Q. Well, you have been telling us how you organized motor units, how you trained infantrymen, how you participated in a combat action which won for you the Iron Cross, how you led a detachment in partisan warfare -- does that all come under Department 3 of Economics?
A. No, that is not part of the Department 3, Your Honor.
Q. Well then how do you reconcile all these activities with the scholastic preparation of reports on economics?
A. I can justify it by the fact that the chief of the Einsatzgruppe entrusted me with this particular department in addition, and secondly my assignments and my work with the Tartar companies were done on direct order of the 11th Army.
Q. Well, then your statement that you were active only in Department 3 is incorrect?
A. No, Your Honor, I was active in Department 3 from 1936 until the middle of June 1941, and after return from my assignment in Russia until the end of the war.
Q. Then the transcript must be wrong or my recollection must be wrong because I distinctly wrote in my notes that you said from 1936 to the end of the war you were not active in any other department but Department 3, At any rate, you say that is incorrect?
A. No, your Honor, according to my recollection I said, "apart from the Russian assignment, I was from 1936 to the end of the war that I was active in Office 3."
Q. Then, while you were in Russia you were active in other departments, above Department 3?
A. I received the additional assignments which I carried out, yes, Your Honor.
Q. Yes, so when you wrote up your reports, you were writing on matters other than Department 3, is that right?
A. Yes, yes, that happened.
Q. Yes, so that when in your report of October 9 you begin a paragraph with the phrase, "Apart from the settlement of the Jewish problem, searches for and the apprehension of partisans played a considerable role," which contained a reference to the settlement of the Jewish problem?
A. Yes, that was known to me, Your Honor.
Q. You know that Jews were being executed?
A. Yes, Your Honor.
Q. And when you signed that report you signed it with the full knowledge of the implications in those statement?
A. I beg your pardon, I don't quite understand the question, Your Honor.
Q. When you signed the report which contained a reference to the settlement of the Jewish problem, you were aware that the settlement of the Jewish problem meant the execution of Jews?
A. That did not have to be the case, Your Honor, because in the country Jews were not executed, or at least during the first time; they were assigned to labor, and then they were collected for such purpose, and, of course, Jews were also executed.
Q. Eventually they were executed?
A. Yes, that is probably the case, Your Honor.
Q. And when you signed the report which contained the phrase, "The Crimea is freed of Jews," you knew what had happened to the Jews?
A. Yes, I knew that.
Q. And when you signed the report which contained the statement, "In the southwestern part of the Crimea, a number of villages known as the very strongholds of the Communists were cleaned," you knew that that meant liquidation?
A. "The strongholds were cleaned", that did not necessarily mean that that meant liquidation, Your Honor, because I could only see what actually was mentioned in the reports which had been given to me by the Commando.
Q. You made one statement which requires a little clarification. In cross examination a question was put which elicited from you the statement that you could not say where murder began and murder ended. Do you recall having made that statement?
A. Yes, in connection with the ideological war events, as it showed as a climax during the last World War.
Q. Well, do you intend to have the Tribunal understand that you were unable to distinguish between murder and lawful killing?
A. I am aware of the difference, Your Honor, but I was asked for the expression "murder"; and I wanted to explain that I really was at a loss how I am to begin. It was a question which I couldn't answer, at the moment, Your Honor,
Q. Well, let us put the question very simply. Suppose an individual is arrested, no charge of crime is brought against him, and he is taken out and shot. Not a word of evidence is introduced to show that this person was deserving a death because of the commission of a crime. Would you call that murder?
A. Yes.
Q. Yes, now, let us suppose that a person is arrested, and the only thing that is said about him is that he is a Jew, and he is killed. Would you call that murder?
A. If the order is non-existent, that the Jews were to be killed for some reason, in that case it is murder.
Q. Would you kindly repeat that answer, Mr. Interpreter, I didn't quite catch it.
A. If the order is not in existence that for some reason or other the Jew was to be killed, giving a certain reason, in that case it is murder.
Q. Then, if there is an order that this man must be executed only because he is a Jew, then it is not murder, is that what you tell us?
A. I am not a lawyer, I understand this to be "killing by order", Your Honor.
Q. If someone in Berlin, several thousand miles away, says that every Jew found must be exterminated, and that is done, do you call that murder or not?
A. If it is being said by a man who does not hold the competence to give an unambiguous order, in that case it is murder.
Q. Well, let us say that this man is a Fuehrer, let us say he happens to be Adolf Hitler, and he issues an order, that every Jew must be killed.
You are in the Crimea, thousands of miles away, and you see a half dozen SS-men grab a child, and they say, "This child is a Jew." Let's say a boy 12 years of age, and it is proved he is a Jew, and they shoot this child down. Is that or is that not murder according to you?
A. That is "killing by order," Your Honor.
Q. Then it is not murder?
A. I may add again, I am not a lawyer. According to my knowledge, I consider it killing on express orders.
Q. If you had to give an answer, you would say under those circumstances it is not murder?
A. Well, if this order is in existence, in my opinion it is not murder.
Q. Very well, then, you do know where murder begins and murder ends, at least, you have a code.
A. This general conception, of course, I have but I don't know whether it is legally absolutely well defined or whether it is exactly correct.
Q. Are you familiar with the German law that one is not excused if he executes an order which he knows to be criminal? Are you familiar with that law?
A. I beg your pardon, may I have the question repeated, Your Honor, I did not quite understand it.
Q. Are you familiar with that section of the German Military Code which says that anyone who executes an order, knowing it to be criminal, will not be absolved, from blame?
A. Yes, I know that.
Q. So therefore you stake everything on your answer that anyone executing the Fuehrer order does it because it is a superior order and because in his conscience it is not a crime?
A. I say that if he carries it out he carries it out because this order exists....perhaps in spite of his inner attitude against it.
Q. Then he is absolved from blame, is that what you intend to tell us?
A. In my opinion he cannot be blamed if an authorized man as a head of a state gives an unambiguous order....then the man who gives the order can be made responsible because only he had the knowledge and the basic material which led him to give such an order.
Q. And in your estimation the one who executes the order is entirely freed of blame?
A. I can only say yes, Your Honor.
Q. And you are aware that that is in conflict with the German Military Code?
A. No, that I cannot say, for I could not tell you the wording, Your Honor.
Q. All right then---
A. I could never state actually the wording because I am not --I don't know the German Penal codes very well.
Q. Well, I'll read it to you:
"If the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefor. However, the obeying subordinates will share the punishment of the participant (1) if he has exceeded the order given to him, or (2) it was within his knowledge that the order of his superior officer concerned an act by which it was intended to commit a civil or military crime or transgression."
A. Your Honor, if the man is unable to recognize that such a civilian or military offense or crime is not being committed, then it does not refer to him - according to my view.
Q. You think that five men about to kill a twelve-year-old Jewish boy would not know that this, in civil law, is a crime?
A. If there is an order by the head of the state in existence, that for reasons of security such a shooting has to be carried out, then I cannot say it to be murder, but I must modify here...I am not a lawyer...it may be I am quite unable to answer the question as it is beyond my legal knowledge.
A. Then you are entirely satisfied that since the order was issued by the head of the state and he declared it was for security reasons, then you were satisfied that it was entirely proper to execute the order?
A. No, Your Honor, I did not think it proper.
THE PRESIDENT: Dr. Gawlik, you may carry on. BY DR. GAWLIK:
Q. Witness, in the decree mentioned by the president, paragraph 47 of the Military Penal Code, it says, "Superior Officer". Was Hitler a "superior officer?"
A. Yes, Hitler was the supreme commander of the Wehrmacht.
Q. Was he an officer in this particular sense?
A. Of course, he was never actually connected directly with the events - and of course he was not the officer who is meant in this particular case.
Q. Well, what case is meant by paragraph 47 of the Military Penal Code? Do you know the provision at all, or do you not know it?
A. Well, of course I don't know it so well that I could explain it here. Anyway, I cannot remember it now....I am sure I used to know it.
Q. Can you tell the Tribunal what legal significance an order of Hitler had?
A. In my point of view an order by Hitler as the head of the state was law; it was corresponding to a law.
THE PRESIDENT: Mr. Hildesheimer, you said Himmler....You meant Hitler?
INTERPRETER: I am sorry. BY THE PRESIDENT:
Q. And according to that, witness, regardless of what Hitler said, it was a law?
A. No, not that. But orders widen were given by him unambiguously I as a layman, of course, consider them to be law.
Q. Regardless of what the subject, an order issued by Hitler would be law?
A. The order of the head of State, Hitler, is equivalent to a law, in my opinion, as I have said.
Q. Well, let us suppose you received an order directly from Hitler....it came down the line of command.....that you were to execute the chief of the Einsatzgruppe. Would you execute that order?
A. No. I would have been open for punishment.
Q. You would have been open for punishment. If you executed it?
A. No, I would not have carried it out. No, I would have put myself at the disposal for punishment.
Q. You would not have carried it out?
A. (No answer.)
Q. Well, then suppose you received an order to shoot a 12-yearold Jew. Would you shoot him?
A. Your Honor, I cannot possibly answer to such an isolated example I cannot say, what my psychological reaction would have been, because on the one hand there is the inexorability of an order, and on the other hand there is the pity for the child...which I think I feel also as a decent human being, so that I could never have carried it out.
Q. You had not trouble in answering that you would have refused to shoot Ohlendorf, but you do have some hesitancy in saying whether you would have refused to shoot a Jewish boy of twelve. And the answer, would you say, is that Ohlendorf means something to you, but a 12-year-old Jewish lad means nothing - except the abstract inhumanity of wiping out an innocent child?
A. No, this is not what I want to say, Your Honor. It is quite possible that my psychological reaction was such that I would not have been able to carry it out.
Q. In your affidavit, which is NO-2859, I find this statement: "During the time that Ohlendorf was on trips, officially or otherwise, I signed all reports." That is correct, isn't it?
A. Yes.
Q. "The reports which I signed in the capacity of his deputy were signed with 'I.V."---"By Order".....is that correct?
A. Yes.
THE PRESIDENT: All right. Proceed, Dr. Gawlik. BY DR. GAWLIK:
Q. Witness, do you remember a maxim of a German Kaiser concerning the execution of orders by soldiers?
A. I don't know whether it was William the First or William the Second, but any how one Kaiser, Emperor, used the expression "If the military situation or the entire situation makes it necessary, a soldier has to execute an order even if he would have to shoot at his own parents." BY THE PRESIDENT:
Q. And you subscribe to that? You believe that?
A. That is a question I cannot answer.
Q. Well, your attorney certainly put it to you for the purpose of obtaining an approval, or otherwise he would not have put it. What is the purpose of putting this if you don't intend to put it into effect?
Now this unknown William declared that if the situation called for it, that you would shoot your own parents. Now, does Willian Seibert agree to that?
A. I understand the question, and also my answer to the effect, Your Honor, that perhaps from that it becomes evident what an order : meant in Germany, and, of course, especially in the Wehrmacht --what tremendous significance it held. It has not to be regarded literally, or at least not in my opinion, and it is a state of affairs which, according to my own opinion ----Q. Q. Do you agree with it, or not? Do you agree with that statement which Dr. Gawlik asked you to quote? Do you agree with it or not?
A. Your Honor, I cannot answer this in so isolated a manner. If the military situation requires it, or some special situation ---it can come to that.
Q. Then you agree with the Willian who issued that statement?
A. I don't want to say that. I only understand it to the effect, Your Honor, that if regarded by a foreigner - the exaggerated importance of an order is conveyed to him.
Q. Well, this emperor was a German, wasn't he?
A. Yes.
Q. William the First, or William the Second?
A. Yes.
Q. And he made this statement?
A. According to my memory, yes.
Q. Yes. Well, is anyone authorized to assume that he was telling the truth, and that he meant it?
A. Your Honor, it cannot have been meant that somebody would have found himself in the situation to shoot his parents at some time in the near future.
A. Your Honor, It cannot have been meant that somebody will have to shoot his parents in the near future.
Q. Then the first William or the second did not mean this when he said it?
A. I cannot say personally what he meant exactly, but in my opinion...
Q. Now you tell me what you mean by it. Do you accept it or not?
A. I, myself, regard this declaration merely for expressing to the soldiers what significance an order has the troops and that obedience and discipline are the main ties of a fighting unit, and if this tie is loosened then the unit is no longer of value.
Q. Then you tell us that this statement was not supposed to be obeyed, if the situation called for it?
A. I can only understand it so as I have just said it now, Your Honor.
Q. Well now you have given us a lot of words but you haven't answered the question. Of your own volition you quoted this. The Court didn't quote it; it wasn't in the testimony. Now if you quote something you will either have to stand by it or repudiate it. Now the question is very specific. This statement which you have quoted is to the effect that in the German army it is understood that if the military or situation--whatever nature--calls for it, that a soldier must shoot his own parents if he is ordered to do so. Now do you accept that or not? You have had enough time to give us the explanation. Now give us the answer. Do you accept this or you do not accept it as a fact? If it is meaningless, if it's just a lot of words thrown together without any intention of impressing anyone with its veracity, then say so; but if it's intended to be obeyed, then say so.