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?
A I would have sent him to Departmental Expert No. 4.
Q He sees you, doesn't he, as the senior officer? followings "Only the kommando leader can make a decision as far as this is concerned, but if you want to find out the possibility for your information, I shall put you in contact with Department 4's Chief, who has information about this matter generally. He can give you general information concerning this matter.
15 Dec 1947_M_MSD_10_1_Arminger (Hildesheimer)
Q He would ask you where the kommando chief was, wouldn't he? you are at all eager to let the Tribunal know just what you know about these situations, Please be very frank. When you answer a question so frivously in that manner, it doesn't cast any credit upon you as being one who is sincere and eager to acquaint the Tribunal with the facts. I have stated a situation where a man comes from the Army command and the kommando chief is not there and he asks to see the senior officer and you are the senior officer. Then I say to you, he would ask you where the kommando chief Is any your answer is "possibly". Do you call that being honest with the Tribunal?
A Your Honor, Your Honor, I beg your pardon. I do not want to he frivolous. Your Honor, and I do not want to give frivolous answers to the Tribunal.
Q You tell me if that isn't a frivolous answer: Here's a high ranking officer on a very important mission; he calls on you and asks for the kommando chief and where is he, and I ask you if this wouldn't be the most natural and normal inquiry and you said, "possibly;" isn't that a frivolous answer? I would have to give you a further explanation of course, and, the possibility, of course, should have to be explained.
Q Answer me. Answer me. Here is someone -here is someone from the Army command. He is seeking the kommando chief. He calls at your office. He asks for the senior officer and he is presented to you and he says, "Major I want to talk to the kommando chief. I don't see him about where is he?" Would that be a natural inquiry? the kommando chief has told you that he has gone to perform an execution?
15 Dec 1947_M_MSD_10_2_Arminger (Hildesheimer)
A In that case, I would have said, "I very much regret to tell you that the kommando leader is not here. If I can do anything for you, or if I can bring a message from you to the kommando leader, I am at your disposal". the execution? He told you where the executions were taking place, didn't he? didn't know where he was, where the kommando chief was? personally to tell me or that I found out in another way that he was not present.
Q And he didn't tell you where he was going?
A He did not say so in each case. Sometimes he just left and said he would he back in one hour. the execution would be performed and where he could be founds in the event it would be necessary to locate him?
Q And you weren't, as a senior officer, interested in finding out where your commanding officer would be? about this matter, but, if he does not regard it as necessary, then, of course, I am not informed. in all?
Q Why were they killed?
kommando, you learned of six or seven executions. Then you left, and you don't know to this day how many were killed in these six or seven executions or why they were killed. could reconstruct this from the reports of events, but not from my own knowledge and experiences.
Q And you don't know why they were killed? security of the operational area.
Q You only assumed that. You don't know from your own knowledge?
A I did not investigate, Your Honor,'
Q You don't know then why they were killed. Your assumption is that they were killed because they threatened the security, is that right? been killed just because they were Jews? days, of course, I did not assume so. because they were Jews?
Q And, you stand on that answer?
THE PRESIDENT: Dr. Fritz, any further questions?
DR. SUESS (Attorney for the Defendant Schulz): Your Honor, I should like to put a few questions to the witness.
THE PRESIDENT: Please do.
DR. SUESS: Thank you. BY DR. SUESS (Attorney for the Defendant Schulz): return from Russia to Berlin you learned that in Lemberg mass executions of Jews had taken place.
MR. HORLICK-HOCHWALD: As far as I recall, this question was answered by the witness in direct examination. Dr. Suess would have had to ask the witness this question before the cross examination by the prosecution took place. This is not a question which came out during cross-examination or during direct examination, or subsequent examination of the Tribunal.
THE PRESIDENT: Yes you can only question on matters which have come up after the direct examination terminated because you had the opportunity when the direct examination ended to put questions,
DR. SUESS: Your Honor, in my knowledge, as far as I remember, there was no opportunity for the defense counsel of the remaining defendants to put questions to the witness immediately after the direct examination, The questions by the President began.
THE PRESIDENT: There was no opportunity for you just because you weren't here.
MR. HORLICK-HOCHWALD: If the Tribunal please, Counsel for Defendant Schulz is certainly not correct in this respect.
THE PRESIDENT: Well, he's correct. He didn't have any opportunity because he wasn't here.
MR. HORLICK-HOCHWALD: If Your Honors please, that doesn't change the ruling.
THE PRESIDENT: Were you here, Counsel, or not?
DR. SUESS: I was not here, Your Honor, No.
THE PRESIDENT: Yes, well, why do you say that no opportunity was allowed defense counsel?
DR. SUESS: I asked my colleagues because I assumed that I would be in a position to put these questions.
I therefore now withdraw my question. am just told that these questions which refer to Lemberg and Olmoetz, I want to mention them as key words, that these questions only came up during the cross-examination. That is, not before that.
MR. HORLICK-HOCHWALD: If Your Honors please--
THE PRESIDENT: Now we will make our ruling, Mr. Hochwald. The ruling is that Mr. Hochwald is absolutely right in his examination, hut we are going to pay no attention to Mr. Hochwald's objections and we are going to let you put the questions.
DR. SUESS: Thank you, Your Honor.
Q Witness, I repeat: In your direct examination you said that upon your return from Russia to Berlin you heard that in Lemberg mass executions of Jews had taken place. At what period were you in Lemberg at the time.
Q Who carried out these executions you heard about? office of the commander of the Security Police and SD in Lemberg. the prosecutor that you heard about the arrest of Jews who had remained-this could create the impression that at that time'
MR. HORLICK-HOCHWALD: Just a minute I do not like to raise the point, Your Honor, but it is absolutely clear that the impression which can be caused by this answer -- this is a question of argument, but not a question to be put to the witness.
THE PRESIDENT: Yes this is not the time for argumentation. You can ask him any question which will elicit an objective answer, but to argue with him is not within the province of cross-examination.
DR. SUESS: Yes, Your Honor, I think you for pointing this out, I shall put the question in another form.
15 Dec 1947_M_MSD_10_6_Arminger (Hildesheimer) Q (By Dr. Suess): Witness, were all Jews, the entire Jewish population that is, arrested in Olmuetz?
A I don't know, I saw Jews in the street.
Q A further question: Did you know the Defendant Schulz in Olmuetz?
A Yes, I saw him in Olmuetz. He was the Chief of the Einsatzkommando. Einsatzkommando in Olmuetz?
A I couldn't tell you exactly, I am afraid. According to my memory it could only have been a few weeks. sent to concentration camps. This was a subject that the prosecutor discussed two days ago? concentration camps?
MR. HORLICK_HOCHWALD: This question is obviously inadmissable; as the witness has said he can't say when these people were sent to the concentration camp, how can he say whether it was done by Schulz or not?
DR. SUESS: I withdraw the question, Your Honor. Thank you very much.
DR. HOCHWALD: If the Tribunal please, I have one question only in connection with the question put by Dr. Suss. BY DR. HOCHWALD: out of executions in Lemberg, and you answered the executions in Lem berg, they must have been carried out under order of the local commander of the Security Police find SD, is that correct, did you say that? spent the night. this execution, do you? carried out during those days.
Q That is all you know? participated in it, that is what I heard.
Q In the beginning of October, is that right?
Q At what time did these killings take place? place during the days before I arrived, which is during the previous weeks.
Q All during September 1941?
A Yes. That is how I understood it.
Q It was not then at the end of June or the beginning of July 1941?
THE PRESIDENT: Did you find out who the local commander was?
MR. HOCHWALD: Your Honors, I do not think that this question is of importance here, as in September 1941 the Einsatzcommando was under the command of the defendant Schulz who had already left Lemberg, hut I asked this question as the impression was created that the killings which happened at the end of June, or at the beginning of July, 41, were carried out by the local commander, and I have elicited a note from the witness that these killings he heard about are not in connection with the killings with which the defendant Schulz is charged.
THE PRESIDENT: All right. All right.
MR. HOCHWALD: No further questions, Your Honor.
THE PRESIDENT: Dr. Fritz, any further questions?
DR. FRITZ: Your Honor, I had only one question, this was to correct something which has been discussed repeatedly on Saturday. The defendant Fendler answered to a question which Mr. Hochwald put to him, that in June 1941 in Lemberg he learned of mass executions.
Q That is what you said on such a day, isn't it?
MR. HOCHWALD: I think that I asked the witness whether he heard about executions when he was there in June 1941, or when he returned in October 1941, and he answered that he heard about it when he returned at the beginning of October 1941. I think that is clear.
THE WITNESS: My remark also refers to the finding of the corpses in prison of Lemberg. There were 7,000 about which I learned in June when staying in Lemberg. This perhaps caused a misunderstanding that these two events are mixed up.
DR. FRITZ: I have no more questions, Your Honor, on re-cross examination,
THE PRESIDENT: The witness will be returned to the defendants' dock, and the defendant von Radetsky will take the stand.
DR. FRITZ: Your Honor -
THE PRESIDENT: I am sorry.
DR. FRITZ: Your Honor, I have not quite concluded the submission of my document book, and I would like to use this opportunity. There are only a few documents I would like to offer now.
THE PRESIDENT: You -don't need the witness on the witness stand?
DR. FRITZ: NO.
THE PRESIDENT: the Marshal will please return the defendant to the defendants' dock.
(Witness excused)
DR. FRITZ: I offer as my next document, the first document in the Document Book of Fendler's on pages 1 and 2. It is an affidavit of Dittrich, as Fendler's Exhibit No. 18. I do not want to read from its' contents, Your Honor, but it certifies the statements that the defendant made concerning his activity in Breslau, also in Sudentenland, and concerning his activities in the Einsatz, and, later in the Office VI, of the Reich Security Main Office. I furthermore offer the document on pages 15 to 18, of Document Book, Fendler's Document No. 8, the affidavit of Wilhelm Waneck. I offer it as IT Fendler's Exhibit No. 19. It is en affidavit again which I am not going to read. The witness Waneck was group chief, and Obersturmbannfuehrer in Office VI, of the Reich Security Main Office, and here described the creation of the Einsatzgruppen, or Einsatzcommandos. In the paragraph before the last of this affidavit he deals with the personality of the defendant Fendler. Furthermore, I offer another affidavit by Schellenberg, which is on pages 57 to 59 of the Document Book. It is Fendler's Document Not 17. I offer it as Exhibit No. 20. In addition, the next three documents in the defendant's document book, that is, Fendler's Document 18 on pages 60 to 61, I offer it as Fendler's Exhibit No. 21; the affidavit of Richard Brass, on pages 62 and 63, that is Fendler's Document No. 19 as Fendler's Exhibit No. 23, and, affidavit of Marie Bartl on pages 64 and 65, Document 20. 20, I offer as Fendler's Exhibit No. 24. These last four affidavits, that is, Schellenberg, Susmuth, Bartl, Brass, Your Honor, consist of personal opinion of character. I do not want to read them into the record, but I should like the Tribunal to take note of their contents, as, especially the affidavit of Sussmuth and Bartl -