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.
COURT II CASE IX Then we will get a clarification of this.
A. In my opinion this declaration was a made in order to create an impression.
Q. But not to be obeyed literally?
A. That depends on the circumstances.
Q. Well, let us suppose a situation where your superior officer tells you that the situation is such that the only way we can get out of it is for you to shoot your parents. Now that's an order. All right, now, are you going to live up to William the first or William the second, or not?
A. In this situation it would have to be obeyed, Your Honor.
Q. You would shoot your own parents if the situation required it?
A. In so far I would have my psychological reaction, and I do not know whether based on this psychological reaction I carry out the order which has to be obeyed or whether I subject myself to punishment.
Q. Now you must answer the question. If the military situation is such that the only way you can be saved according to what your officer tells you is to shoot your parents, will you shoot them or not?
A. I cannot answer such a question, Your Honor, in such a short time. That is a psychological struggle that I am not in a position to say yes or no.
Q. Would you be ready to answer it tomorrow morning?
A. I don't know, Your Honor.
Q. Well, we will give him until tomorrow morning to think it over. at nine-thirty.
(The Tribunal adjourned until 20 November 1947 at 0930 hours.)
THE MARSHAL: The Honorable, the Judges of Military Tribunal No.II Military Tribunal No. II is now in session. God save the United States of America and this Honorable Tribunal.
DR. HOFFMANN (Attorney for the defendant Nosske): Your Honor, I should like the defendant Nosske to be excused this afternoon and during the whole day tomorrow in order to be able to prepare his defense.
THE PRESIDENT: The Defendant Nosske will be excused from attendance in court this afternoon and all day tomorrow, in order that he may confer with his counsel.
Dr. Gawlik, yesterday afternoon, just before the adjournment, the witness was being examined on a matter which was mentioned by you and by him and we will refer to that examination. BY THE PRESIDENT:
"Q Witness, I am now reading from the transcript of yesterday's session, on page 5 of Take 23 appears the following: "By Dr. Gawlik:
"Q Witness, do you remember a proverb said by a German Kaiser concerning the carrying out of orders by soldiers?
"A I do not know whether it was William I or William II, but certainly one Kaiser-Emperor used the expression, 'If the military situation or the entire situation makes it necessary, a soldier has to carry out an order, even if he has to shoot his own parents'". Now, Witness, you are a German soldier, are you not, or, were?
of the German Empire at the time, the military situation made it necessary for you, after receiving an order to that effect from a superior officer, to shoot your own parents, would you do so?
A Mr. President, I would not do so. which may be disobeyed? State but as a symbolic example towards the whole soldiery how far obedience had to go, but never actually asking a son to shoot his own parents. I imagine it only as follows, Your Honor; if I am an artillery officer in the war and I have to fire at a very important sector, which is decisive for the whole military situation and I receive the order to fire at a certain village and I know that in this village my parents are living, then I would have to shoot at this village. This is the only way in which I can imagine this order, but never -- it is inhuman -- to ask a son to shoot his parents. the line, you would disincline to obey it. You would not obey it. someone else, let us say, a Jew and his wife, and in your view you see the children of these parents. Now, it is established beyond any doubt that this Jewish father and Jewish mother have not committed any crime, absolutely guiltless,blemishless. The only thing that is established is that they are Jews and you have this order coming down the line to shoot these parents. The children are standing by and they implore you not to shoot their parents. Would you shoot the parents? Jews indiscriminately did not have to be obeyed by the German soldiers in your estimation?
war, in the combat against Bolshevism, in which two countries fight each other and try to destroy each other and disregard all customs of war and all laws of war - and they were disobeyed on both sides in the totality of this event it was a matter of life and death, which was said quite clearly on both sides; now, in the totality of this event an order by the Supreme Commander is given; in that case it must be carried out by the soldiers, Your Honor, but I would never have carried out an order if the order had been given to me to shoot these parents, just because they were Jews.
Q Yes, now you had a certain rank in the German Armed Forced. You were a Lt. Colonel, was it? rank in the SS was Lt. Colonel?
Q You were a full colonel, is that right? A full colonel is a very high rank in the Armed Forces. It is next to General. a colonel as an official and a colonal as an active officer. I had never had the training nor the ability, for that matter, to be an active colonel and I was never promoted to such or, at least, comparable to one in the active Wehrmacht.
Q But you had the training as a German officer? that is an order were submitted to you, coming down the line militarily to execute two innocent parents only because they were Jews, you would refuse to obey that order?
A Your Honor, I answered your example affirmatively. I said, "Yes, I could not have obeyed."
THE PRESIDENT: Very well, you may proceed, Dr. Gawlik.
BY DR. GAWLIK: in the cross-examination. I want to confirm this quite clearly for the record. Did you have to pass on any order from General Schober to Ohlendorf? he was arresting hostages in order to shoot them under the slightest pretext.
Q That is enough. That will suffice for your answer. By whom were these hostages to be arrested?
A He did not say that. He said, "I shall have hostages arrested."
Q I now come to another point. To whom was the order given, Ohlendorf's order, that the figures were not to be exaggerated? could only be directed to the kommando leaders in whose kommandos orders had to be obeyed.
DR. GAWLIK: I am sorry, Your Honor, it is from Document Book III-D, page 72 of the German, Document NOKW-628.
Q (C ontinued* That, as I say, was mentioned again and I have a few questions to put in connection with it. May I just have the document handed to you? the G-2, which you were asked about in the cross -examination.
DR. GAWLIK: It is page 1 of the original, Your Honor.
Q (Continued): Was it necessary that you give your approval to the agreement between the Special Kommando 10-B and the G-2? report that the Crimea was actually cleared of Jews was correct?
Q What was your task? have them passed on to the offices to which they went. Communists. Was it your task to check up for what reasons these Communists were made harmless? showed that in Luki the inhabitants were being taken, care of, was it your task to take care of the accommodation of the inhabitants of the village of Luki? action to be carried out. housing of these inhabitants?
A I would have only found out about it after weeks. I would not have had the possibility before. of the original, II, the report about the further assignments which were planned. Was it your task to order the further assignments of the kommandos?
MR. WALTON: May it please the Tribunal, the prosecution desires to object to the form of the questions. He is putting the answer in the witness mouth. While this was gone over and I know he has the right to recover it in redirect examination, to ask a question, "Was it your task to make future assignments with the Einsatzgruppe", to me it seems the proper form of the question would be. "What was your task with regard to the future assignments".
DR. GAWLIK: May I now say something, Your Honor? As far as I am informed, a question that can be answered with yes or no is not a leading question.
I must here guide the witness, If I put the questions as it is suggested by the prosecutor, "What was your task", in that case, of course, it will take the witness a half an hour to answer it, and it is only in the way of completing the story and a matter of saving time. Otherwise there would be no possibility to guide the witness.
THE PRESIDENT: Dr. Gawlik, you are laboring under a very serious misimpression if you think that the test of a leading question is whether it can be answered yes or No. That is not the test, and I will give you an illustration. Suppose I say to you, "Dr. Gawlik, are you a smart and brilliant lawyer?" I would naturally suggest the answer which would undoubtedly be correct and would be yes. It is not the test if it can be answered yes or no. The test is whether the question in itself suggests the answer, and, if you say to your client here that "Was it your duty to make assignments for these kommandos", in view of what has already been stated with regard to this defendant, it is very obvious what the answer should be, so far as you are concerned. You must not suggest to the witness the answer. Gawlik. You covered that in your direct examination. The witness had an opportunity to explain further in cross-examination. Now nothing is served in going over it again. If, in the cross-examination, some doubts have arisen which need to be clarified, then you may direct your question to those doubts. Figure 2 had not been accepted?
A You mean, not accepted by the Army?
cerning your own activity in this report. Do you have anything to add to your answer which you gave during your cross-examination.
A May I just ask for one moment, I haven't the report in front of me.
Q I shall put the question a different way: In what reports did you report about your activity? my activity as the Director of Department III.
Q To what authorities?
Q I now come to the point of gas vans. Did you ask for the gas van?
Who had asked for the gas van?
A I do not know. I did not ask for it.
Q Who was responsible for the upkeep of the gas van? responsible.
Q Was that one of your tasks? Did you ever give any orders for the distribution of the clothing? Who was responsible for any difficulties which might crop up, economic difficulties, that is of the Ethnic Germans? that is, in which these Ethnic German settlements were situated. obtain clothing for Ethnic Germans? because that was not within the field of activities of an intelligence officer.
Q. I now come to the point: Valuables. Did you ever take part in collecting watches and valuables?
A. No. I never took part in it.
Q. Did you ever make any decisions in their distributions?
A. No. I never did. BY THE PRESIDENT:
Q? Witness, did you know about the watches that Ohlendorf had at headquarters, taken from executed people?
A. Yes, I heard about that.
Q. And you know what distribution was made of these watches?
A. I know that these watches were asked for by the army. They were requested in a letter, and I must assume that they were delivered to the Army, Your Honor. If and when they actually arrived, or whether the administrative officer had to report that they had been deposited at a bank - that I don't know. BY DR. GAWLIK:
Q. Now I come to the point which has been mentioned in the cross examination, which you mentioned: "Acting For", I submit to you Seibert Document 1. of the Department Chief of III-A?
A. He signed "Acting For" -- "I.V."
Q. Was he thus the representative for the whole office?
A. No, he was only the representative for his own field of activity, III-A.
Q. What was the significance of your own signature when you signed "Acting For" -- "I.V." - for the Einsatzgruppe?
A. It had the same significance which I have just now mentioned.
Q. Now I come to document NO-3414 in Document Book I, page 62, To whom is this decree immediately addressed? Please give a general answer. Not the individual agencies.
A. The decree was directed to the commanders of the Security Police and to a few state police agencies, names that are mentioned here.
Q. What does that show concerning this decree?
A. That the assignments had to be carried out by those agencies which are mentioned here.
Q. How was the decree addressed to the Einsatzgruppen?
A. To the Einxatzgruppen it went for their information.
Q. Please explain to the Tribunal what "information" means in this respect.
A. The difference wasoften made when orders were concerned; in the distribution list, it said first to this and this agency that meant for compliance; secondly, it went for information - that meant for the information of all concerned.
DR. GAWLIK: Thank you, Your Honor, I have no further questions.
THE PRESIDENT: ...Oh, pardon me. Yes, Dr. Hoffmann?
DR. HOFFMANN: Your Honor, may I now ask my questions of the witness, or shall I do so after you have asked your questions?
THE PRESIDENT: No. The Tribunal has no further questions. You may ask.
DR. HOFFMANN: Witness, the Prosecutor in the corss-examination yesterday asked you about a report which had gone to AOK II from February to March, and in which the activities of the Einsatzkommando 12 are mentioned, Do you remember that?
A. Yes.
Q. In this report it says that because of bad conditions due to snow, AOK 12 could not go into action, but that its activities would be resumed very shortly. Do you remember that?
A. Yes, I remember.
Q. You then pointed out that in this report, no executions are mentioned.