So now you are asked, since you yourself said there was an investigation in each case, how many cases were there? not only in this noon recess, and even now I can only say one thing I do not know the figure. I do not intend to refuse to make an answer but I want to testify everything that helps to point out the truth but if I am to state a figure here it is not the truth in any case because I simply do not know the figure. you were the commander, you were the leader, the commanding officer, a certain number of men in the field to insure security to the German troops, that although you were involved in an action which was bound to result in death, and although as commanding officer you were bound to know that reports were made on some of these deaths at any rate. In spite of all that you do not know how many executions there were. Now you are willing to let the record remain that way? mate number? THE PRESIDENT: You may proceed, Dr. Bergold. BY DR. BERGOLD: made. The way I understood it you explained that in every case an investigation took place and you explained that it was ordered by Herr Mohr, your predecessor, who was a trained lawyer, and that you kept up this order and continued with it. I now ask you how do you know that this order was carried out.
a proper investigation had been taking place. carry out your orders and disobeyed and deceived you? personal impression I had of them was that if they tried to deceive me any one working in the Einsatzkommando did not notice it or any other irregularities among them.
THE PRESIDENT: Dr. Bergold, please develop that point. It isn't clear just what that answer was. He said that - at least we got it that if the men tried to deceive him - is that what he said?
DR. BERGOLD: Whether he convinced himself that nobody deceived him in such a manner.
THE PRESIDENT: It is not clear. Did the men deceive him or not?
DR. BERGOLD: No. It is my opinion, your Honor, that if when a leader of a Kommando has been given an order to a certain effect every now and then he had to convince himself whether the order is being carried out. I asked him if he did this and he said he made spot checks. I understand he did not check up on every case and I, therefore, asked him whether with respect to other activities he found that cause existed which proved that these people deceived him in some manner and allowed irregularities to occur and he told us he did not find any such things. That is the only manner in which a subordinate can check up on his people, that he was always watching them, and see whether they were carrying out orders. A superior can only make spot checks when he has such a large field to cover to find out if one is deceiving him.
THE PRESIDENT: The word is coming through that a subordinate would check. I don't know whether it is the interpreter or the lawyer who is saying that. Naturally what is meant is that a superior officer makes the check.
DR. BERGOLD: The officer has to check upon that. In this case, the defendant.
BY THE PRESIDENT: you?
Q And you were satisfied that they were very obedient soldiers? received?
Q Now did they themselves receive the Fuehrer-order?
Q Did you talk with the men?
AAbout this no. I could not, your Honor, because I did not know anything about it. unless you talked with them?
Q Well, did you talk with your men, that's the question? Fuehrer-order?
Q Did you talk with your men, that's the question?
Q Yes, and how long were you the leader of this Einsatzkommando? your men the question of executing Jews never came up once? Communist Functionaries?
A No. I only know one thing about this that somehow, even before my time, Thomas gave an order that Communist Functionaries were to be sent to Kiev for further investigation. I happen to remember that.
Functionaries?
A No. During my time that did not have to be, only in connection with the procedure.
shoot Communist Functionaries? Gypsies?
A Gypsies were never mentioned. I never saw Gypsies. made to shooting Asiatic inferiors? made which challenges the usual routine an inquiry naturally follows. Now, can you explain why it is that all the other defendants in this case knew of this order, or at least all those who have testified, have spoken, have made some reference to it. What mysterious process shielded you from this order? From even the knowledge of it? Can you offer an explanation?
Q Well, give it new. Just what mysterious process it was that took you apart, the commanding officer of an Einsatzkommando, and although every other Kommando leader and sub-Kommando leader, knew about the order to shoot Jews, that by some miracle you were saved from even the knowledge of this shocking order which you heard of for the first time when Ohlendorf took the stand in this very Courtroom. Can you give an observation, can you give an explanation as to what it was that protected you, one person out of all the others that were involved? anything certain about this but only possibilities that might explain this, the fact that in this territory there were hardly any Jews. Therefore, it was not necessary to give such an order. There just were no Jews and, therefore, one did not have to get this order. Apart from that from the very beginning I told Gruppenfuehrer Thomas that I wanted to leave, that I have been a clergyman.
I told him that they could not expect me to carry out executions. All these are matters that are in line and which might have caused it. that you didn't conduct executions of Jews. We ore merely wondering why it is you didn't know about it. Now, were your sub-Kommando leaders all preachers, ministers, Lutheran ministers? with the men in that respect because I was not interested in this at all.
Q Now please answer the question. You were a Lutheran pastor, you were a minister of the Gospel, and you have explained to us that that may have been one reason why Thomas didn't ask you to execute Jews. Is that correct? That is what you told us. Gospel?
Q So, therefore, there would be no reason on Thomas' part to abstain from telling them about the execution of Jews would there on that basis?
A I said that I do not know the way Dr. Thomas thoughts. I only found that no Jews existed in that territory and, therefore, I drew the conclusion that order had no legal importance for that territory. you do tell us that some people were shot - you saw them being shot. Now, what nationality were they,who were they? investigated. That is possible.
Q Well, then there were Jews in that territory. You told us a little while ago there were no Jews.
Q About how many Jews were there?
A That I don't know. beginning, that when you make a statement which is a challenge to common sense you must give an explanation. You say first there were no Jews. Then you indicate there must have been some Jews. Then we question you about that and you say some and now we question you about how many. If you say there were some you would have an idea about the number. Now, tell us how many Jews were in that territory?
A I cannot give any information about this. I do not know
Q You said there were some Jews. Now, what do you mean about some?
Q Well, not this morning. What do you mean by some?
Q Very well. What kind of people were shot? the Army territory Don.
Q You saw 65 people executed. Now, what kind of people were these 65?
A What people, you ask me?
Q Were any of them German? Were any of these 65 Germans?
A I don't think so.
Q All right then what were they?
Q Russian citizens. Now was there an investigation made in each one of these cases of these 65?
A I did not see the files of these 65 cases. I only know that men of the Kommando had received orders ever since the time of my predecessor to investigate the cases. investigated? These 65 deaths?
Q No. So, therefore, you permitted 65 people to go to their deaths without knowing yourself whether they were guilty or not?
Q Did you make any spot checks in these 65? to go to their deaths without even a spot check.
Q Yes. Now we come back to the original point about sub-Kommando leaders. In the ordinary course of events the sub-Kommando leaders would know about orders by the Fuehrer in connection with activities in that area, wouldn't they?
Q And you spoke with your sub-Kommando leaders from time to time? once did the question of the Fuehrer-order with regard to execution of Jews come up?
Q Very well. Take the witness, Dr. Bergold. BY DR. BERGOLD: your Kommando in general that you had been a clergyman for many years? your general attitude and opinions? me than with my predecessor.
Q Did people have to notice this?
generally known you were a clergyman? did not consider you a normal human being or did they consider you as good as anybody else?
A In general the clergymen, did not have a very good reputation. They were always afraid of the church which might stop people from putting in all the strength for tasks that might be demanded of them. BY THE PRESIDENT: in 1941 and 1942? with ones whole soul one remains for the rest of ones life.
Q But in 1935 you gave up your parish, didn't you?
Q All right, in 1938 you formally left the church?
Q You were in no way connected with the church after 1938 were you?
Q You left the church in 1938, didn't you? the church in 1938?
A If the term "clergyman" is understood as the word for a profession, as a main job, I no longer held that profession, but after all a clergyman is not tied down to practicing his profession in a certain manner. I trained for this profession and it will he part of me as long as I live.
Q But you severed all connection with the church. It is by being a member of a church and by preaching to the members of the church that you are a clergyman. You repudiated the church in 1938. How can you still claim to have been a clergyman in 1942? to the churches.
Q We are not speaking about religious life. In order to be a clergyman you must have a church, mustn't you? Ecclesia Invisibilis, a church which cannot be seen.
Q You were a clergyman of an invisible church? ready explained, to create a parish of my own, a community of my own.
Q Where do the members of this invisible church gather?
Q Where was this invisible church in Rostov in Russia? You were parading as a pastor there, asking certain privileges because you were a clergyman. Did you have an invisible church there?
A Your Honor, the matter is like this. If two people talk about religious problems and their beliefs, yes. Then these two form an invisible church.
Q That makes a church. Two people talking about religion makes a church. Now, did you have church services with your sub-kommando leaders and your commando members? tions from me on that subject which were valuable to him. At Christmas and on New Year's Eve I talked to my kommando in Rostov, and what I said on that occasion were not only masters dealing with outer matters, but inner matters which go deeply into the soul and the matters of the church and God. I know what kind of impression it made on my men. On Christmas Eve - in general I don't like to talk about this - Nehring came to me, took my hand, and said, "What you have learned, you have learned." What he was trying to say was, "You know how to deal with these things and can talk to people, in particular about these innermost things."
Q Did you have a religious service on Christmas?
Q That is a question. Now, answer it directly. Don't take us all the way to Russia. Just answer it directly, did you have a religious service in Russia on Christmas?
Q "Wherever there are two or three gathered together in my name, I shall be among then", says Jesus, and wherever people gather and talk about religious questions, that is a religious service.
Q Did you speak about the divinity of Christ on Christmas? your invisible church, every say to you, "I am in distress. I am being compelled to shoot people, and I have a struggle with my soul, and it is hard for me to do this. Can you assist me and give me comfort in this very difficult job which I have, to snuff out the lives of my fellowmen." Did anyone everyday anything like that to you? this. I mean, they knew what they did, that these judgments and these executions were done because these people were criminals, and had committed criminal acts.
Nothing unjust was requested of them,
Q Therefore it was a perfectly easy thing to shoot a man? soldier in the field does not find it easy to shoot the soldiers on the opponent's side. and night kill him unless he fired first, but in executions, you take the victim, you lead him up to a grave already dug, he looks into this hole in the gound, and he is shot in the back, so there is a great difference. There is a greater spiritual fortitude required on the part of the executor to do that kind of killing than there is to kill in the heat and the passion of battle. I think you recognize that. comfort and never once talked to you about executions. We will let it remain that way. Is that right? discussed in particular. with your men?
A I don't think so, no.
THE PRESIDENT: Dr. Bergold, will you please continue?
DIRECT EXAMINATION (Continued) BY DR. BERGOLD: deviated, so far, and talked about matters of the soul, this affidavit in which you stated that two to three thousand, executions were carried out by you. I now ask you, is the affidavit which was submitted to the Tribunal, is it correct in that form?
A No. This affidavit does not contain a great number of important points which I made in the general interrogation, and according to my conviction, I think, Your Honors, in order to understand me correctly - for example, during my interrogation I discussed in detail, as I have done here, what procedure was kept to until the death sentence was carried out. happened before the affidavit was set up, you made the following statement?
DR. BERGOLD: Your Honor, a moment, please. May I add the following to this? I have seen and read the record of this interrogation of the defendant. I know that this was a mistake, and I want to read something out of this affidavit, and I want to ask him whether he said this. I quote.
MR. HORLICK-HOCHWALD: Just a moment, please. Dr. Bergold, of course, is at liberty to ask the witness questions. Dr. Bergold hasn't got the affidavit, and he himself admits he read it by mistake. I don't think it is proper that he reads something out of the affidavit. He may ask the witness whether he remembered that and that, having said that and that, and in any case the witness was interrogated. It is not so long ago. If it is so important the witness will certainly remember, and I do think it is only proper that the witness says what the witness remembers, not what Dr. her Bergold remembers.
THE PRESIDENT: Well, is Dr. Beregold -
DR. BERGOLD: Just a moment, may I say one thing? I think that the defense has the same right as the prosecution, and I have been active here as a defense counsel for sometime now, and I can remember a lot of cases when during the cross-examination the prosecution asked the defendants, "Witness, is it right that during the interrogation you said, this or that, yes or no?" And in all these questions this manner of questioning was allowed. It is, therefore, my opinion -
THE PRESIDENT: We think in the first place, Dr. Bergold, your illustration is not a good one. I am not saying your point is not a mood one, but the illustration is very had because you are talking about cross-examination. This is direct examination. Anyhow, that point is out. Now, submit something else. That is not a proper illustration. That is cross-examination. You can cross-examine in the same way. How, give us your other reason.
DR. BERGOLD: A moment, Your Honor, please. Please tell me how one should do this? I am quite willing to receive some instruction, A person who has made a statement some months ago I want to ask him whether he has made it, because no one in the words has such a memory that he can verbally remember what he said during an interrogation several months ago, namely,in July, 1947.
THE PRESIDENT: The Tribunal is not yet aware of just what you are about to do, Dr. Bergold. Mr. Hochwald intervened, so we really don't know what you have here, and if you will let us know, of course, we will rule on it.
MR. HORLICK-HOCHWALD: If I may suggest, Your Honors, I had the impression from the question of the defense counsel for the Defendant Biberstein, that he wanted to put the answer of the witnessin the witness' month by quoting, that was something that was not in the document.
THE PRESIDENT: No, as I understood all that Dr. Bergold wanted to do was to read from the affidavit, and he certainly has the right to do this.
MR. HORLICK-HOCHWALD: I do think, Your Honors, that I understand probably I am mistaken - I did understand Dr. Bergold that way, that he wanted to quote something out of an interrogation which he read, an interrogation of the witness which he read which, however, is not in evidence, and which he admittingly read by mistake, by mistake of the prosecution, of course. So what he wants to do is to quote something which is not submitted in evidence and which is not before the Court.
THE PRESIDENT: Dr. Bergold -
DR. BERGOLD: One moment. May I add something? I, and I say this quite frankly, I want to prove here that this affidavit is not in order, Hey dear opponent already pointed this out yesterday in a letter, and he submitted, he agreed at the time I made the application, that this written record be submitted so that it can be proved that this affidavit is not in order. At the time the prosecution told me, no, we don't have to submit that, that is not the custom. But I have read the record and I know that things are contained in it which in my opinion should have been put into the affidavit, according to the principle which Lord Justice Lawrence announced in the IMT, namely that the Prosecution should order everything incriminating, as well as everything that is exonerating, heard. How I have no other way of doing this to prove the truth, that my statement is wrong. The prosecution told me that I should either withdraw my statement or prove it. I am just trying to prove it, but they make it impossible for me to prove it. I don't know what kind of method that is.
THE PRESIDENT: New, just a moment , Dr. Bergold. Here is an affidavit, and you want to attack this affidavit?
DR. BERGOLD: Yes.
THE PRESIDENT: All right, you question, the witness and you attack the affidavit. The witness is here. The witness certainly knows what are the facts and what are not the facts. Let the witness state what the facts are, not counsel.
DR. BERGOLD: Your Honor, may I point out one thing? My last question refers to the previous question. I asked him whether the affidavit was in order. He said, "No, for example the procedure was not recorded concerning the executions, although I explained it in detail." And now I wanted to show him these words which he said concerning this procedure during his interrogation, but it is impossible to do this verbally. Nobody can do that.
MR. HORLICK-HOCHWALD: If the Tribunal please, it is absolutely not necessary that the witness quote word by word what the witness said four months ago, but the witness certainly will know what the witness said four months ago, and, therefore, Dr. Bergold is at liberty to ask the witness what the witness knows, but Dr. Bergold is not at liberty to ask the witness what Dr. Bergold knows.
THE PRESIDENT: Dr. Bergold, suppose you and Mr. Hochwald have a conversation which lasts for two hours, and then after your conversation is ended you go into your office and prepare a statement which contains the salient features of the conversation. You go to Mr. Hochwald and say, "Mr, Hochwald, I would like to have a little record of what we talked about. You please read this. There is no use putting down all we said in two hours, because much is irrelevant, but these are the salient features. Now, please look at it. If you agree with it, all right; if you don't all right too." You look at it and Mr. Hochwald looks it over very carefully. Finally he says, "Yes, this contains the salient features," and he signs it.
DR. BERGOLD: Now-
THE PRESIDENT: Now, just a moment, Dr. Bergold. Then later on, you want to point out that there were other things said which are not in this document. Then you take the stand and you tell about the other things.
Now, that is the situation you have here. The witness was questioned for some time, and from what he said a paper was drawn up, and the paper was given to him to sign, and the paper very clearly indicates, "I have had the opportunity to make alterations and corrections in the above statement, and I make this declaration voluntarily without any promise of reward, and I was not subjected to any duress or threat whatsoever," Now, you have indicated that he wants to attack this, and he has every right in the world to attack it, not anybody else. Now, you ask him to point out wherein this affidavit is wrong, wherein it is incomplete, wherein he was compelled to make a statement against his wishes, wherein he was persuaded to say something which he did not agree with. The field is open, to him. There is no limit to what he can tell here from the witness stand, but it must be the witness,,
DR. BERGOLD: Your Honor, the example does not quite apply, because the witness said on one occasion already that he wanted to make corrections from the start, but too interrogator said he could do this later, and may I point out that Mr. Wartenberg, who was cross-examined by Dr. Ficht at my request, said it was possible, and he cannot deny it, that he told the witness that he could make corrections later on. That is shown in the record by the interrogation through Herr Wartenberg.
MR. HORLICK-HOCHWALD: As Dr. Bergold pointed out, there was a possibility to question Mr. Wartenberg on this particular subject. Dr. Bergold has another possibility, to question the witness on this subject, the two persons who were present. I do think that this should be completely sufficient to prove the point. There is no necessity to try to prove something which is not before the Tribunal, Your Honor, I only want to make for the record a statement as to the ruling of the IMT to which Dr. Bergold referred in his opening statement, and namely suggests the prosecution is compelled, Dr. Bergold said it was ruled before the International Military Tribunal that it should be the duty of the prosecution also to submit evidence which is favorable for the defendants, not only which implicates them.
Mr. Justice Jackson has vigorously objected to this motion of Dr. Bergold. But as far as I remember the ruling of the International military Tribunal was only that if a document is submitted in evidence it should be submitted in full. I don't know that the International Military Tribunal ruled ever that the prosecution has to submit documents which are in favor of the defense or-
THE PRESIDENT: Mr. Hochwald, if the International Military Tribunal did not so declare, this Tribunal will declare that whatever the prosecution has which is favorable to the defense must be submitted. Nothing will be permitted not to be presented which will be of benefit to the defense.
MR. HORLICK-HOCHWALD: If your Honor please, I don't want to challenge this statement. I only wanted to explain here what the International Military Tribunal ruled, nothing else. I did not want-
THE PRESIDENT: Well, if the International Military Tribunal said that, this Tribunal overrules the International Military Tribunal because it is not in accordance with the principles of justice that either side may retain anything which may shed light on the issues before the court.
MR. HORLICK-HOCKWALD: If your Honor please, I only wanted to clarify. I had not the slightest wish to request a ruling from the Tribunal on that point. I only wanted to clarify the statement of Dr. Bergold, and I am absolutely sure that Dr. Bergold agrees with me the procedure before the IMT. Is that correct?
THE PRESIDENT: We won't debate now what took place before the IMT. The IMT--It seems I am having trouble with the interpreters here. I will state a little more slowly so I won't get into trouble with my friends in the cage, that whatever evidence is available which will shed light on this most serious issue which we must decide must be presented. Now, so far as the present situation is concerned, Dr. Bergold, I would recommend to you that at least for the moment you question the witness and have him point out wherein the affidavit does not represent what he said or corresponds with the facts.
Have him point out where it does not go far enough, Point out where it is in error. Point out where he would *** add to it, and then he can also say, "I told this to the interrogator; he didn't put it in the affidavit." Everything.
DR. BERGOLD: Very well, your Honor, I shall try, but as far as I was informed, my client was interrogated for a very long time. He cannot remember all of that, the defense, all concerning that. I dad not want him to talk for too long, but I will ask him now.
Q (By Dr. Bergold) Herr Biberstein, can you tell me what is not contained in the affidavit and what seems important to you? in this affidavit, which was made in Nurnberg, it is not contained that the executees who were executed, by Einsatzkommando VI were cases where a crime had been committed and which had been dealt with in the proper manner, Because this is missing it gives the impression several of these executions would have been made arbitrarily. In my affidavit of Esel-Heide, this point is still contained, and I pointed out when the affidavit was made, and I referred to this affidavit in Esel Heide, and there I was told, "Yes, we know that," but as I said, it is not recorded and that is what I objected to, and then I said told, "Well, you can do that later on." But because this was missing, I was rather confused because I always told myself, "This will give the wrong impression," and that is how I explained to myself that some other points might have been overlooked but not completely. That is the point which states that one execution was carried out under my supervision. This word "supervision" I did not notice, I overlooked it. This is the execution which I witnessed.
THE PRESIDENT: Just a moment until we find that place in the affidavit, Will you point it out, Dr. Bergold?
DR. BERGOLD: Yes. It is on Page 2 of the original, Page 112, the first sentence on the top after the sentence with the 2,000 to 3,000 executions. There it says, "I personally superintended an execution in Rostov which was performed by means of a gas truck:"
THE PRESIDENT: Well now, you want to change that?
DR. BERGOLD: Yes, the defendant says that he did not express himself in that manner, and that he overlooked it because he was excited that so much had not been recorded, BY THE PRESIDENT:
Q Tell us just how you would word that? In order to have it correct, suppose that as you were reading the affidavit you noticed that this was in error, and you wanted to correct it. Just how would you state it instead of the phrase, "I personally superintended an execution"? Just how would you say that? Show him the affidavit, Dr. Bergold so that he can make the correction right here. Let him have the affidavit. Does he have the affidavit?
A No, I don't have it. As I already said during my interrogation at the time I asked Chief IV at the time to show me an execution by means of the gas van. I took part in this in order to gain an impression about this manner of execution. This was Chief of Department IV.
Q Well now, you have used the phrase, "I took part in this ,"
Q Then your correction is you did not superintend it; you merely witnessed it?
Q So that if we change for the word "superintended" the word "witnessed" then that would correctly express your thought, would it?
Q The correction will be made. Are there any other errors or incomplete statements?