men in charge of the Communist Party, four of them, and they are about to hold a meeting in a house, and they are going to preach to the population and ask them to oppose the German forces, there are only four, would you go and arrest them? competent military commander about it, the local commander. a town and you know of this Bolshevist meeting, four men are going to Call the population together and to sell them the Communist doctrine, they are going to spread Bolshevism, would you go and arrest these four men?
Q Did you take an oath to Hitler?
A Please?
Q Did you take an oath to Hitler?
Q Did you take an oath as a soldier in the German armed forces?
Q Did you believe in the German cause?
A In what connection, your Honor?
Q Well, the German cause. You were in the German armed forces, you were marching into Russia. You know that you had marched into other countries. Did you believe generally in the policies of the Reich? threat of Europe by Bolshevism. threat of Europe by Bolshevism. some people who are going to blow up a house in which German soldiers are going to be quartered, you know that four Bolshevist functionaries, who are listed to be executed according to the orders, are about to attempt to proselyte the whole population against the German forces, and yet you do nothing?
What kind of a soldier are you? danger and in which I myself had only eight men at my disposal, I would inform the competent military commander about this case.
Q Let's suppose there is no competent military commander around. This is a town and here are these four men standing on the corners asking the people to come into this great mass meeting, and these four are going to make speeches against Hitler, against the German armed forces to resist the invasion, would you arrest these four people?
Q If there was such a case, would you arrest them?
A --for the men that I led, then I would do something about it; I would have arrested the men.
Q Well, there is no acute danger to your men. These four are merely standing on the street corners telling the people to come in, they are going to listen to a fiery speech against the German forces, no danger to you but this very active political resistance. Would you arrest the men, the four men? I would not have had time so I wouldn't have had any opportunity to do so.
Q You wouldn't have any opportunity? You have eight men, and they are armed.
A Because I didn't have the forces to do this. four on the other side. Two Germans to one Bolshevist are certainly ample, aren't they, especially if you subscribe to the master theory?
Q All right. Well, you believe that two could overcome one, don't you, especially if two are armed. That is why I couldn't arrest four men.
Q Very well. Then your answer stands.
A I wouldn't have arrested them. uniform of the German Army, although you have sworn allegiance to the Fuehrer, although you are engaged in a war, yet you come across a force only one-half the size of your own, it is preaching sedition, it is preaching resistance, and you wouldn't even arrest them, that is the way you want your answer to stand? my forces. military commander who had better forces for such actions, and it would have depended upon his decision what he would have done to protect the German Army. that although you had twice as many as those who would be opposed to you, yet you would do nothing. All right, we understand how you feel about these things.
A I wouldn't have done anything because I had other missions to perform with my men. blow up a building, you still would not do anything, because you had other things to attend to. Did you consider the measures in the East justified? After you got back to Berlin and you reflected on what your kommando had done in the East, were you satisfied that those measures taken were justified?
A What measures, your Honor?
Q Well, the measures which the kommando took, the executions. You answered that question once before, why can't you answer it now?
A I beg your pardon, your Honor. I didn't quite understand it completely.
Q All right. This very same question was put to you on Saturday: "when you returned to Berlin after your service in Russia, did you consider the measures taken by the Einsatzkommando in the East to have been justified?"
Q What was wrong?
Q Did you consider it was wrong to shoot Jews?
A Please?
Q Did you consider it was wrong to shoot Jews?
Q Then you did know they shot Jews, didn't you?
Q When did you learn that?.
Q How far away was that from your organization which you had left?
Q How many miles or kilometers was that?
Q All right. Nov, you were with an organization for three months the commander, and you didn't know--You were with Kommando 4b for three months in constant daily association with the men who were doing the shooting, in daily contact with the commander, and you did not know that Jews were being shot because they were Jews, but then when you were five hundred kilometers away, then you knew they were shooting Jews because they were Jews, is that correct?
Perhaps I didn't express myself quite clearly, your Honor. In Kiev I heard that in the days preceding, that is in the last week of September, or it must have been around that time, mass executions of Jews had taken place in Kiev, and that in this case there were executions of Jews just because they were Jews.
Q And these executions were done by kommandos of the Einsatzgruppen?
A The Higher SS and Police Leader Jeckeln was mentioned. Which units he had used for this I only saw in the reports.
Q Well, what units were they; were Einsatzgruppen involved?
Q So that you had to travel five hundred kilometers and two days' distance from the very heart of this execution district before you learned that executions were being performed upon Jews because they were Jews, is that right?
Q All right. Now, we call your attention to Document Book II-C, Page 49, referring to Einsatzkommando 4b. It says: "The Einsatzkommando 4b has finished its activity in Tarnopol. 127 executions. Parallel to that, liquidation of 600 Jews in the course of the persecutions of Jews as induced by the Einsatzkommando. In Zborow, 600 Jews liquidated by the Waffen-SS as a retaliation measure for Soviet atrocities." All this is under the heading of Kommando 4b. Did you know about these executions and this liquidation of 600 Jews?
Q You don't know the figure, but do you know the incident?
living in Tarnopol had occurred, first of all excesses on the part of the Ukrainian population, and secondly, unfortunately, on the part of the German Army. you know about them at the time they occurred?
A Your Honor, it says here only 127 executions. The report does not clearly show that these were carried out by the Kommando 4b, Did the kommando conduct these 127 executions? thirty people were shot by the kommando in Tarnopol.
Q These were included in the 127, were they?
Q. Did you make up any report on the excesses perpetrated by the population on the Jews?
A. No, I did not make any reports about this.
Q. Well, why wouldn't you? That was certainly a matter involving the population. Why wouldn't you include that in your report?
A. I personally only spent half a day in Tarnopol in order to go on to Trembovla to join the Army corps.
Q. You were there long enough to find out about these things, and it didn't matter how long you were there, once you got the information, then it was part of your knowledge. Why didn't you report this?
A. That was not my business, your Honor. As I said, this whole reporting about the enemy, and that included the reports about the Jews, was the business of the police executive.
Q. Well, it was your job to report upon the morale of the population, wasn't it?
A. Yes.
Q. Well then, why wouldn't you report on the fact that a good portion of the population had participated in a pogrom?
A. That might have been mentioned in a morale report, yes.
Q. Well then, it was mentioned.
A. I don't think so; I cannot remember, your Honor.
Q. Was it or was it not mentioned by you that a part of the population participated in a pogrom?
A. I cannot remember to have made out a morale report about Tarnopol because I didn't get a chance to do so in Tarnopol. I arrived in Tarnopol, found the great number of COURT II CASE IX and I looked at that material when I was there.
Then I went on to Trembovla.
Q. Did you or did you not make a report on this excess which resulted in the killing of 600 Jews, 600 people, 600 human beings, did you include that in your report or not?
A. No.
Q. You did not consider that of sufficient importance?
A. I did not consider it unimportant, I did not knew at that time.
Q. Well, you told us that you did know it.
A. Your Honor, this report shows the basis of the situation report was made out by the kommando leader.
Q. We are not talking about this report; I am talking about your reports. Here you are the export of Department III, the SD, which has to do with giving reports on the morale of the population. You come to a town and you find that 600 people had been murdered in he streets by part of the population. In making your report on the morale of the population in that town, did you include this fact?
A. If I had known about it, your Honor, and if I would have made a morale report at this time, I would have possibly included it.
Q. Well, did you know about it?
A. I merely knew that excesses had taken place in Tarnopol, which I regretted.
Q. All right. Then you knew about it so that part of the condition is satisfied. You knew about the excesses, is that right?
A. I learned that excesses had taken place, yes.
Q. All right. Then did you make an SD report on conditions?
A. No, I already said I made no report.
Q. Why didn't you make a report? Here you are an expert. Your commander depends upon you for information; the Einsatzgruppe headquarters depends upon you for information; and in Berlin they depend upon your direct channels for information. Why didn't you make a report on these excesses which you learned about?
A. Because I personally did not get a chance.
Q. Why didn't you get a chance to make a report?
A. Because I was busy with another task, namely to evaluate the documents which had been captured.
Q. And you didn't consider the matter of a mass murder of 600 people of sufficient importance to write a report on, is that what you are telling the Tribunal?
A. Your Honor, if I got the order from the kommando leader to evaluate the material which is available there, then I have to do so.
Q. Well, how much time would it take in an SD report, which you were compelled to make, and which it was your job to make, to say that there were excesses in Tarnopol to the extent that 600 Jews were murdered, or you didn't want to say murdered, were killed by the population. How much time would it take to include that, with your fingers on the typewriter, into a report? How much time would it take to say that.
A. Two seconds.
Q. Well then, why didn't you have the two seconds to write that?
A. Because I made no report.
Q. Why didn't you make a report?
A. Because I was given the order by the kommando leader to evaluate this material.
Q. Very well, we will let your answer stand, and it will COURT II CASE IX be evaluated later.
Now, you had time to be interested in the politics of the Ukraine, didn't you?
A. Yes.
Q. Now you had time to consider, to take part in the desire of the Ukraine population to achieve independence, didn't you?
A. Yes.
Q. But you didn't have time to write into a report something which would take only two seconds to write?
A. If I did not make such a report, your Honor, because I had a different order, then, of course, the prerequisite is not existant.
Q. Did your order say that you should participate in Ukrainian politics and help them to achieve independence, was that part of your orders?
A. Yes, a part of my general order.
Q. That you were to work for the achievement of Ukrainian independence, is that part of your orders?
A. No, this was not my order. The order read as follows: "To determine what autonomy ambition existed within the Ukrainians."
Q. But you were interested in seeing them get independence, weren't you?
A. Yes, it interested me.
Q. And you helped where you could?
A. I had no opportunity to help at that time, It didn't become effective. I would rather put it that way.
Q. Did you or did you not help the Ukrainian population in their desires to achieve independence?
A. In this, insofar as I had a positive attitude towards the autonomy ambitions of the Ukrainians, in this respect I did, because this positive attitude was expressed in my reports.
THE PRESIDENT: Mr. Gallagher, will you please come forward? I am sorry. I didn't know you were sitting there. I would have called you before. I would like to have you speak into the microphone here, and first in the early part of the examination of the witness he was asked if he knew why a certain execution occurred. Would you please read what appears in your record on that? I want you to read that into the record. Read it aloud; read it slowly.
COURT REPORTER GALLAGHER: Court Reporter Gallagher reading from the record.
"THE COURT: Q. Just a moment, did you know about this particular action which occurred between the 13th and the 26th of September which brought about the execution of 103 political officials; 9 saboteurs and looters; and 125 Jews?
"A. I don't know, your Honor, whether this was one action.
"THE COURT: Well, proceed.
"A. As I have already said on Saturday, I heard about it in Kremenchug that one execution took place, but I don't know what people were concerned up there.
"Q. How many executions occurred during the time that you were with 4b?
"A. As I said on Saturday, it must have been about six of which I hoard.
"Q. And now many were killed in these six executions?
"A. I cannot say, your Honor, I don't know.
"Q. What were the executions for?
"A. I cannot give you details, but if I may refer to the document, or rather to the report to which the President has just referred, if I may refer to these, which is in Document Book II-A, Document No.--"
THE PRESIDENT: Just a moment, Mr. Gallagher. The question which we wish to decide is whether a question of this nature was put to the witness: "Do you know why these individuals were executed?" Now, I am not referring to the long answer which he gives enumerating certain categories on Page 45, but why the 103 political officials, 9 saboteurs and looters, and 125 Jews were executed. I think now, Mr. Gallagher, that you know just what the Tribunal desires to obtain. Would you please look a little more carefully through your notes during the recess period and perhaps you can put your finger on that very question and answer if it exists.
Yes, Dr. Fritz, you want to say something?
DR. FRITZ: Your Honor, the Tribunal evidently intends to read the English transcript and thus to examine the credibility of the witness. Since this is first of all a matter of what the defendant has heard in the German language, because it was translated, I make the motion that the German transcript be read also, because I understood it just the way that the defendant did.
THE PRESIDENT: Very well. By all means we want to have it in the German. The only reason I asked Mr. Gallagher first was that I thought we could locate it and then by comparison find it in the German transcript, but if you can, during the recess, Dr. Fritz, locate it in the German, we would be very grateful for your pointing it out to us. Specifically we want to know if the Tribunal asked the witness if he knew why these twenty or thirty were executed.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. WISSTIAN: Assistant of Dr. Schwarz for the Defendant Jost. this afternoon and tomorrow afternoon's session, as he wants to prepare the remainder of the document book.
THE PRESIDENT: That's for this afternoon and tomorrow afternoon?
DR. WISSTIAN: This afternoon and tomorrow afternoon.
THE PRESIDENT: The Defendant Jost will be excused from attendance in court this afternoon and tomorrow, Tuesday, afternoon.
DR. WISSTIANN: Thank you.
DR. BELZER. (ATTORNEY FOR THE DEFENDANT MATTIAS GRAF): afternoon because I want to prepare his defense with him.
THE PRESIDENT: Which defendant?
DR. BELZER: Mattias Graf, Your Honor.
THE PRESIDENT: For this afternoon?
DR. BELZER: Tomorrow afternoon.
THE PRESIDENT: Only tomorrow afternoon?
DR. BELZER: Yes, only tomorrow afternoon. Not today.
THE PRESIDENT: You are very modest in your request. The defendent Graf will be excused from attendance in court tomorrow afternoon.
DR. FRITZ (ATTORNEY FOR THE DEFENDANT FENDLER): Dr. Fritz-
THE PRESIDENT: Yes, Dr. Fritz, were you able to find that in the German transcript?
DR. FRITZ: No, Your Honor, the two ladies who took the transcript this morning are present at the moment, but unfortunately the crossecamination was so fast that they could only concentrate in putting down the answers of the Defendant Fendler, but not the questions. The questions they did not take.
THE PRESIDENT: Yes, well, suppose then because of that fact that we wait until the transcript is prepared, both the English and the German and then we can arrive more quickly at a precise determination of just what was said.
Is that satisfactory?
DR. FRITZ: Yes.
THE PRESIDENT: Yes? Very well.
DR. FRITZ: Of course, we have to note here that apparently the German stenographers have to wait for the English Transcript and only then they con translate the questions from the English transcript into the German, so that a precise examination is not possible.
THE PRESIDENT: Well, how about the film, the sound film? Wouldn't that give it to them precisely?
GERMAN COURT REPORTER: The film is only in English, the questions in English, and the answers in German.
THE PRESIDENT: Well, at any rate, I presume we will need to wait until the transcript is prepared. BY THE PRESIDENT:
Q. I have a final question, Witness. Now, you know of six to seven executions in the three months that you were with Einsatzkommando 4B?
A. From twenty to thirty, if I remember correctly, Your Honor.
Q. No, the number of executions. You knew of six to seven executions?
A. You mean actual proceedings? Yes.
Q. Actual executions.
A. Yes, execution proceedings.
Q. Well, I don't know why you add the word, "proceedings; I mean. The executions, the killing of people, you know of six or seven of these?
A. Your Honor, I can clarify this, I think. It is a matter of translation. In the German at the moment when 20 people are executed we speak of 20 executions, but we also speak of 20 executions if there are execution procedures and in each one of these procedures a number of people are concerned.
Q. I used the term "executions" in the sense of collective killings.
A. Yes.
Q. All right. New, you know of six or seven of these collective killings?
A. Yes, Your Honor.
Q. How did you know about them?
A. Through conversations.
Q. With whom?
A. With members of the kommando.
Q. And in those conversations did they tell you why they had executed people on six or seven different occasions?
A. No, that I never found out, Your Honor.
Q. You conversed with your comrades about the business of killing people and they never told you why they were killing them?
A. Quite by accident I learned that executions had taken place, Your Honor, but I did not try to find out what people were concerned, six or seven different occasions these people had been killed en masse?
A It could be celled an accident. I myself had nothing to do with it. the merest chance that on six or seven different occasions the kommando had gone out and killed people. What was the accident which brought this to your attention?
Q No, now, no "perhaps". Tell us what you did. You found out about six or seven executions. How did you find out about them? kommando leader was not present, because an execution was just "being carried out at which he had to be present.
Q And who told you about these executions? officer.
Q Did you have headquarters? speak with the commander and he is not there. you say,"By the way, where is the commander?" and he says, "Oh, he's out killing some people". Is that the way it happened?
A No, I don't think it was in this form. Your Honor.
Q Now, tell us how it happened. You are sitting in your office and you suddenly need the counsel or advice or guidance of the commander. Tell us what transpires.
A I looked for the kommando chief. I did not find him. Therefore, I asked this man where the kommando leader is.
Q Who was this man?
Q The sergeant? All right.
A So he said, "The kommando chief has just gone out in order to be present at the execution."
Q And that is the way you found out? the sergeant and say to the sergeant, "I report to you I am about to go out and kill some people and if anyone asks for me, let them know that I am out conducting an execution." Is that what he told the sergeant?
Q Did this happen this way in all the six cases: that you always had to turn to the sergeant and ask him where the kommando chief was? kommando leader in one or two cases what was going on. I do not remember the details. He could have said to me, "I am now leaving. I have to conduct an execution." did the kommando chief tell you?
A That I really can not say; if I tried -learned about the executions. Do you call it an accident if the commanding officer of your organization says to you: "I an now about to go out to perform an execution." Is that what you call in the classification of "accidental knowledge"? kommando leader, shall we say, in the afternoon to grant me an interview of half an hour because there might be something which I wanted to discuss concerning my reporting and he might have said, "No, it is impossible; I will not be present this afternoon because I have to go out to supervise the carrying out of an execution."
Q How many times did it happen that way?
A I couldn't say, Your Honor, this information come to you via the kommando chief himself?
AAfter six years I couldn't tell you precisely. I would have to estimate that and it night be wrong. The reasons would he mostly
Q You can remember there were six executions. Could you remember whether more times the sergeant told you or whether more times the kommando chief himself told you? you learned of these. Now, what was this accident which caused you to learn of these executions? form an execution, was your interest aroused?
Q He was going out to kill some people end it didn't interest you a bit? It didn't interest you at all that he was going out to send to their creator a number of human beings? That was of no interest to you whatsoever?
A I wasn't curious to find out the details about this. There may he people whose reaction is entirely different in such situations, who are very anxious because they like sensation, to find out each little detail and to delight in such details, but this was not the case with me, tells you he is going out and kill some people. Tell me whether you have any reaction whatsoever.
Honor.
Q Then you did have a reaction; you had an emotional reaction when he told you he was going out to kill some people, didn't you?
Q All right. Did this emotional reaction go to the extent of wanting to know how any were going to be killed? how many were going to be killed? end death a man, tells you on six different occasions that he is going out to kill people and you pursue your curiosity no further. He tells you, "I am going to go out and perform an execution and you, in effect, say, "OK, I'll see you tomorrow". Is that what you are trying to have the Tribunal believe? is possible. been killed during this war and with this basic attitude of mind I was not interested to learn even more which would be more of a burden to me even than the fact that I had already learned that men were executed.
Q You wanted to do your duty, didn't you?
Q You were the senior officer, next to the commander, weren't you? Your Honor.
Q You were in charge of the office when he went away, weren't you?
Q You were in charge of the office when he went away, weren't you? become necessary, I, as the senior officer, appeared, but, as I have already said in my direct examination, the actual activities just went on automatically and were under departmental experts. was away. Let's say the Einsatzgruppe Chief or a representative from the Army command had wanted to know where he was, where the kommando chief was. He turned to you, as the senior officer present, for information, wouldn't he?
Q Hot "he could". "He would". You know militarily that's what would happen. That's right, isn't it?
A It depended on whet his questions were, Your Honor. If he only wanted to know whether the kommando leader was present, for instance, the ordinary guard outside at the gate could give him that information. In any case, he would hove seen that the kommando leader had left. He probably would have left immediately and he would have said he would come hack when the kommando leader was there.
Q This is quibbling, Witness. Someone arrives from Army headquarters. You are in a war. You are in the field. He asks to see the kommando leader. The sentry tells him he's away and so he says, I will come back some other day. He would demand to know the senior officer present and that would he you. gone to them. in order to fight some partisans. That is what he has come for. Whom would he see?