This organization is connected only at its head, with the agreement of the conspirators, while the members automatically, without their own knowledge, are included in the conspiracy. A definition of this kind of criminal organization is right only so far as it can be used to determine the guilty ones and only the guilty ones. like to speak about two points concerning the determination of guilt and therefore relevant for the question of admissibility of proof. First, there is the question of lack of knowledge by the members of the criminality: the lack of knowledge was possible on the basis of secrecy on the plans and then the attitude of the members after they had realized such faults. In my opinion, the examination about the guilt could not be stated by pointing at the knowledge of foreign countries about the real conditions. In foreign countries, propaganda may have exaggerated facts. In Germany all these facts were kept secret; first, because of their nature, they had to be kept secret, such as things going on in the extermination camps or because, for political reasons, they had to be kept secret. Besides, the things which we know today, the facts were so improbable, unreal, that even in Germany they could not be believed during the man. It must be relevant to determine not whether the single individual member had no knowledge, but, that, in fact, ninety-nine percent of the individual members acted bona fide. In this case, not all the organization is criminal, but there can be and there may have been a criminality. If this is determined, then the legal construction of the criminal organization is unnecessary and therefore false. Our ideas and principles of law so far will b* sufficient to bring the guilty to trial.
The next point. The criminal nature or the criminal character of which the Charter speaks, which the Charter mentions, shows that that must be something which concerns the entire organization and that it must be a condition of duration, of a certain duration. Individual acts which were rejected as mistakes by the organization or the great majority of its members, could not be considered as determining the criminal character of the organization. The attitude of all the members as to the incriminating acts is of a decisive nature and therefore relevant.
majority, we do not need the definition of the criminal organization. In such individual cases, in organizations which comprise millions of members, there may be cases in which minor or even larger groups took part or just certain local districts. with the objectivity of the judge, how this side of the guilt looks in the question of the entire guilt of the organization. I am of the opinion that the points I have mentioned, of keening these facts secret and of the attitude of the membership after gaining knowledge of these errors and mistakes, that these are not important points.
THE TRIBUNAL (Mr Biddle): I want to ask some questions.
THE PRESIDENT: Dr. Servatius?
MR. BIDDLE: Dr. Servatius, I would like to ask you -- and I will ask other counsel for the organizations -- whether in general you accept the definition of criminal organizations, suggested by Mr. Jackson, which is found on pages 19 and 20 of his statement? You willremember that he made five general tests. Now, in order to determine what evidence should be taken, we must determine what is relevant. Now, the test of what is relevant depends on a general definition of what is common to all organizations, for that purpose. Now, do you or could you now say whether in a general way you accept those tests for the taking of evidence?
DR. SERVATIUS: I have not thought about it and neither have I had a chance to speak to my colleagues about it, I should be grateful if we would be given, at a later date, an opportunity to speak about this. If possible, this afternoon, a representative of the defense counsel for the organizations would like to speak to the Court about this.
MR. BIDDLE: Let me ask you another question. What, in your mind, are the tests that should be applied for the purpose of taking evidence?
MR. BIDDLE: I have said that Mr. Justice Jackson had suggested a definition from which the relevancy of certain evidence could be established. Now, have you got any suggestion to offer for that same purpose?
DR. SERVATIUS: I would not like to make a statement without having spoken to my colleagues. It is a question of great importance which I should not like to decide now all by myself.
MR. BIDDLE: The basis of this entire argument, the very purpose of the argument was to develop that.
DR. KUBUSCHOK (Counsel for the Reichs Government): In the course of the debate of yesterday, the question has been brought up whether the task given to the Tribunal by the Charter, can be considered as a legislative act. The question has been brought up whether if We consider this to be answere by "yes", the Court has the possibility, which we hove in the National Court, has to make a decision according to Law No. 10, whether definite instructions can be given to these National Courts. That concerns, first of all, the extent of the examination of the guilt of the individual member and the limitation of punishment for minor cases. I believe that if we follow this thought, that from a play of words, we would come into a lab yrinth in the practical application. It is no new thought in law, and the National Court in subsequent trials is bound by the previous decision of this Tribunal. Such cases are, of course, legally admissible. If otherwise in jurisprudence the Court is bound by a previous decision, say of an administrative court, we consider these cases quite in order and natural. Likewise, a penal court could, for instance, be bound in judging the case of fraud, to wait for the previous decision of the civil court, whether in the object of the crime there was the question of property of somebody else. legislation. The thought that a penal court is bound by a previous decision of another court as a precedent forthe judgment, does new mean by any means that the legislative task of the author of the penal code has not been completed and has to be done by the court giving the previous decision. In my opinion, we do not have to consider this point any further because Article 9, paragraph 1 of the Charter demands of the Tribunal a clear and unlimited decision about the question whether the organization is criminal or not.
Law No. 10. Sir David spoke yesterday about the five points which, for the judgement, which I had formulated for the decision about each material, would be relevant, and he objected with regard to the two last points, that they would belong in subsequent trials according to Law No. 10; the question of the reason to exclude from guilt, individuals, in delusion under pressure or under coercion, and so on. I would, like to avoid repetition and I would like to point out only the following: It is quite correct that the question of coercion and delusion and other personal reasons to exclude an individual from guilt should be discussed in subsequent trials. In connection with this, Sir David has also called the attention of the Court to a really remarkable problem and that is the problem of an illusion created by the State, by the Government. That is the problem of mass psychology in deception. This is a really important problem. It affects many many problems concerning their membership but there are far-reaching consequences for the entire membership and for the entire character of the organization. blem of deception on the part of the State affected the membership and thereby was a characteristic for the nature of that organization -- or created a characteristic of the nature of the organization. All personal reasons to exclude someone from guilt are, therefore, to be examined by the Tribunal in judging the question of the character of the organization. Furthermore, the evidence in every case has to be on the broadest basis -- presented on the broadest basis. If the Tribunal would make any limitation now, there would be the possibility apparently that later at the end of the trial, contract to its opinion now, material which would be excluded from admission now could be considered relevant. what should be done with regard to the verdict, which has been demanded, about the knowledge of the individual of the character of an organization. Sir David has applied the measure of a normal thinking person, of a normal human being, and anybody who was below that level would be considered subjectively guilty.
as in this case, and in all their penal subjects, a full consideration is requested, is demanded, to establish a norm of penalty for the field of negligence or given an exception, and only when there are minor penalties. In every case, in the case of negligence, it must be clear to the person committing the crime, that he is supposed to submit to an examination, Law No. 10 having connection with it, the verdict demanded of this Court establishes -- represents the establishment of a norm subsequently.
If we leave the general principal Nulla Peona Sine Lege (No punishment without Law), if we leave that in the case of the main defendants, and if the reason is given that they themselves did not believe in that sentence and follow it and, therefore, cannot claim it for themselves, that does not apply to the organization. Independently of the fact whether this argument can be accepted at all in each case, even for the considering for the moment of negligence, we cannot overlook that again and again there exists a duty and necessity to examine all evidence and this is a different one in non-existing laws than it is in existing laws. the statutes and charters of the Party organization were illegal or not; that is a question, also, during the time of the WeimarRepublic that has been considered and brought up and discussed frequently. Political problems were definitely in favor of such a decision. Apparently, legal considerations at that time made it impossible and made it not opportune to make any declarations of that kind. What measure should we then apply concerning the judgability of an individual member of an organization if the legal problem is such is so difficult and in need of interpretation? sonnel of the Gestapo. The reason can only have been that in the case of these members, this objective knowledge could not be considered, necessary. I should like to ask, to draw conclusions from this individual case to members of other organizations. Should the individual member of on organization which conprises millions which, of course, was in a much lesser connection with organs of the executive than a technical administrative member of the Gestapo, should not this member be judged much better subjectively than that group which was excepted?
Do we not have particularly the obligation now, by the best possible methods, to get certainty about knowledge or non-knowledge of the individual member?
Sir David, in discussing the problem of negligence, mentioned an ostrich policy all of a sudden. Well, we have to consider that the person who sticks his head in the sand does not want to see, but that person must have seen something, in fact, and therefore must not want to see any more. Another member is in an entirely different category if from the sources which are at his disposal he has knowledge about individual actions, but has no knowledge -
THE PRESIDENT: Forgive my interrupting you, but the Tribunal has already heard and listened with attention to your interesting argument, and the argument that they are now prepared to listen to is only a very short argument in rebuttal. As I have already pointed out, is seems to me that the greater part of what you are now saying is what you have already said. We can not go on hearing these arguments at great length.
DR. KUBUSCHOK: Since I have arrived at the end of my general remarks, I should like to speak about an attitude or opinion that concerns the defense of the Reichsregierung. The number of members of the Reichsregierung is a very limited one. One half is in the defendant's dock. Is it really necessary to consider the other half cumulatively as part of the organization, as the small number of those affected makes possible an individual trial, with all the legal guarantees given therein. Insofar I should like to add to the remarks made by my colleague, Dr. Laternser, who mentioned the point of the Charter that the Tribunal is not compelled to determine but that for reasons of opportunity, it does not have to do so.
THE PRESIDENT: Mr. Biddle wants to ask you some questions.
THE TRIBUNAL(Mr. Biddle): I have just one question. Will you listen to this very carefully? purpose, and certainly, with respect to some organizations, there is ample evidence that might justify such a finding, why, then, would the Tribunal no be justified in holding that organization as a criminal organization insofar as it was composed of persons who had knowledge that it was being so used and voluntarily remained members of the organization? In other words, the definition would state that it consisted of members who had actual knowledge that the organization was engaged in the commission of crime.
DR. KUBUSCHOK: The organization can not be separated from the total number of its members. The verdict, in connection with Law Number Ten, will have an affect for each individual member. The task of the Tribunal would not be completed if it would limit that task and would separate individuals, whom we will not now define personally, from the organization. In the task which I have mentioned, we can not overlock the practical purpose, and we do not consider that if such a limitation is made.
THE TRIBUNAL (Mr. Biddle): I will ask one more question. I do not think you have answered my question. I will put it very simply again.
How would that definition be unfair to any individual?
DR. KUBUSCHOK: If a limited circle of persons in connection with the organization would be branded as criminal, consequently, there would be an injustice to the other members who have also participated in the organization. That declaration, of course, affects the name of the entire organization, and, therefore, the consequences of discrimination will affect each individual member, even if in limiting the definition it will have been excepted.
THE PRESIDENT: I think we had better adjourn for ten minutes.
(A recess was taken.)
DOCTOR LATERNSER (Counsel for the General Staff and the OKW): Mr. President, it was not my intention to make further statements today about the concept of the criminal organizations because I believed that my statements of yesterday had been comprehensive. The second question put by Mr. Biddle to my colleague, Kubuschok, I would like to give my opinion on this question.
Question No. 2, if I understood it correctly, was to the effect as to why it is not proper as far as individuals are concerned who were members of an organization, or why can it be improper towards some individuals who were members of an organization if this organization is declared criminal. It is improper for those members who, as far as aims and purposes are concerned, if they were criminal, if they did not know about them. We must -
THE TIRBUNAL (Mr. Biddle): To save time, the question was a very simple one. I will repeat it again. I said this: If an organization was being used for ciminal purposes,- and I added that there was very great evidence that such was the case in certain instances, - why would it not be proper to hold it as a criminal organization in so far as it was composed of persons who had knowledge that it was being so used and voluntarily remained members? Of course, that would exclude from the organization everybody who didn't have knowledge that it was engaged in criminal purposes.
DOCTOR LATERNSER: Yes, that is correct. I did not understand the question. Then the matter has been settled to cur satisfaction.
DOCTOR LOEFFLER (Counsel for the SA): I would like to correct a misunderstanding. Sir David yesterday in his rebuttal said that I admitted that the SA on the 10th of November, 1939, was participating and I emphasized that I stated that only two per cent of the SA at the most were participating in special actions and it is taken for granted that this incident is included. I have cause with this example to emphasize these matters which my colleague mentioned just a little while ago regarding the taking into consideration of the mistake of an organization because some things cannot be prevented; that an organization will deviate from its purpose and make a mistake; that ninety per cent of these people who participated would have to be included with the two per cent who were active but were dismayed at this action. They were spiritually against it, Spiritually they were not in agreement with it.
single exception general conclusions are drawn as to the general character of the organization, and we can object rightfully to such a thing, that it was an exception of the general tendency of the organization. but that is a typical proof for some mistakes that we can make when we deal with organizations. Out of four millions, perhaps one thousand men; that is a very small percentage. The rest of the 3,999,000 had no knowledge, and this may be proved. No one would wish to claim from the fact that .005 per cent were used, whereas the other people had no knowledge, we can draw a conclusion as far as the criminal character is concerned. The question which was raised at this point is not answered with the small percentage, but we are before and after on the point that the declaration which was made by Attorney Kubuschok, as far as the criminal character is concerned, as shown by the Prosecution, if these hypotheses are met as shown by Kubuschok, and they agree with the other colleagues that are defending these organizations, then this point may answer further questions. counsel for the various organizations, I would like to emphasize that yesterday Mr. Justice Jackson made the suggestion that the witnesses should not be questioned but to call in experts for the testimony and to use that evidence. with emphasis I would like to oppose this suggestion. Experts cannot be heard who can tell what had taken place and it is impossible for a witness to show what knowledge the various members had. The members, as far as the question of the knowledge of a criminal character, vary. There are intelligent, average, and less intelligent members of the organization. Then, if a judgment is to be drawn on the testimony of the lesser intelligent members, this judgment which is to condemn people, We feel that we cannot depend on such a judgment because intelligence has to be considered; and it would be an injustice for the average be taken as a basis, for the average would be an injustice for all those who are less intelligent, which would be included in this judgment. about the question of the effect of the judgment of the decisions which will be given by the Tribunal and in confirming our expectancies, Mr. Justice Jackson declared that the decision would be in the nature of a statement or declaration, but this contradicts what General Clay, the Military Governor of the American occupation, said yesterday.
The statement that he had made in an interview to the "Neue Zeitung", the American paper for the German people -- I would like to quote a sentence from the very latest edition which would contradict the opinion of Justice Jackson: United States zone of occupation, the people who are interned in that zone:
"The decision of the Nurnberg Tribunal will decide what will happen to them. Their number is at present 230,000 to 300,000. Should the International Tribunal at Nurnberg condemn all people who are included in the Indictment and consider them as war criminals, then the number will range up to 500,000 or 600,000." intended and could only say that the present attitude of his would reflect the presort attitude of his Government, but there, was no assurance that other Governments would have another attitude or would assume another attitude. But Jackson's Government is not bound to Jackson's point of view and may change their point of view.
I would like to conclude with this remark: Justice Jackson mentioned the shcok which results with the present condition -- that is, the Charter in connection with the desired decision by the Defense -- and that it is to be in connection with Law No. 10 and the effect that it has made on the Prosecution -- this result of shock will not be concerned with the defense alone but all people who are interested in justice and who have justice at heart, millions of members of organizations will be involved. Justice Jackson was concerned with the fact that there might be innocent people connected with it and that, they could be brought to justice before the national courts and that a penal code could be applied, that is, money, sentences up until the death sentence could be applied, and that the defense would point out that the Prosecution might deviate from the legal basis and might go into the arbitrary.
If Justice Jackson is concerned with the shock effect of the death of many Jews, these things happened outside the law and in the name of power, and this Tribunal is interested in outlining power and to put in justice in its place.
But justice must be clear and it must be sure.
SIR DAVID MAXWELL-FYFE: The Tribunal said earlier that certain questions had been asked of me. I am perfectly prepared to answer the three questions if the Tribunal desires their time to be occupied by my so doing.
THE PRESIDENT: I don't think the Tribunal wishes to hear any further arguments unless you particularly want to answer anything.
SIR DAVID MAXWELL-FYFE: I did not intend to argue at all. It was only that Dr. Dix put two questions on which he asked my view, and Dr. Servatius one, but I am in the hands of the Tribunal. I do not want it to be thought that the Prosecution is not prepared to answer the questions.
THE PRESIDENT: If you can answer them shortly, we should be quite glad to hear them.
SIR DAVID MAXWELL-FYFE: The first question that Dr. Dix asked me was to clarify what I had said about the Fuehrerprinzip in relation to the Reichsregierung. I can answer that in two sentences. I said that in addition to the ordinary support which members of the Reichsregierung in 1933 gave to Hitler under the Fuehrerprinzip, they entrusted their consciences and wills to him and adopted completely his points of view.
In order that Dr. Dix may be under no misapprehension with regard to his grant, the case for the Prosecution may be put in the words of Dr. Goebbels, one of the conspirators, on the 21st of November 1934, in a conversation with Dr. Schacht.
"I assured myself that he absolutely represents our point of view. He is one of the few who accepts the Fuehrer's position entirely." to the Treaty of Versailles and the Anschluss. Dr. Dix asked me to deal with those who desired to effect the aims of the Party program in a peaceful way. The Prosecution says that that does not arise: that the Party program must be considered in the background of Hitler and other publications as to the use of force and also as to the existing state of things in the relationship of Germany with the Western powers and also a treaty of obliga-tion to Austria and Czechoslovakia.
The third question that was put to me was by Dr. Servatius about the Leadership Corps. You will remember, my Lord, that in the statement of the Tribunal the Prosecution was asked, if they were making any limitation, to make it now. That is contained in the statement of the Tribunal. The limitation which we have made, that is only including the staff in the case of Reichsleitung, Gauleitung, and Kreisleitung, and excluding the staff in the case of the Ortsgruppenleiter, Zellenleiter, and Blockleiter, is the view to which the Prosecution adheres and which has been agreed by the different delegations. I wanted Dr. Servatius to know that that was the position. I do not intend to repeat the reasons for it which were given by my friend, Mr. Justice Jackson.
THE PRESIDENT: There is only one thing I should like to say. I think it might be useful to the Tribunal, if you have them, to let us have copies of the British statutes to which Mr. Justice Jackson referred and also the certified judgments of the German courts--if you have copies available.
SIR DAVID MAXWELL FYFE: They will be found for the Tribunal and the Tribunal will receive them within the shortest possible time.
THE PRESIDENT: Mr. Dodd, I understand that you have an affidavit-
MR. DODD: Yes.
THE PRESIDENT: -- which you wish to put in with reference to the High Command?
MR. DODD: Yes, we do have it. We located this affidavit on Thursday, the Tribunal had inquired about it on the afternoon of the day before, on Wednesday, I believe it was. We have prepared for the Tribunal a list of the offices comprising the German General Staff and High Command as defined by the Indictment in Appendix "B". The list was compiled from official sources in the Admiralty Office of Great Britain, the War Office of Great Britain, and the Air Ministry of Great Britain, and supplemental information was obtained from senior German officers, now prisoners of war in England and in Germany. The list is attached to this affidavit as we intended to submit it this morning to the Tribunal, and the affidavit describes the source from which "this information was obtained and it points out that the list does not purport to be exhaustive or necessarily correct in every detail.
It is, however, substantially a complete list of the members of the General Staff and of the High Command and of the High Command Group, and on the basis of this compilation there appear to have been a total of 131 members, of whom 114 are thought to be living at the present time. I wish to offer the list formally, together with this affidavit as United States Exhibit No, 778. I ask that it be accepted without it being read. However, of course, if the Tribunal would like tit read over the public address system, I should be glad to do so.
THE PRESIDENT: No, I don't think you need read it.
MR. DODD: I might say to the Tribunal that copies -
THE PRESIDENT: Copies have been given to the defense.
MR. DODD: Yes, they have, your Honor. They have been given to the defense.
THE PRESIDENT: Very well. Thank you.
MR. DODD: Colonel Smirnov, Your Honor, is prepared to read the document with reference to Stalag Luft 3. If the Tribunal would like, we will have him do so.
THE PRESIDENT: I think perhaps we will have him do that on Monday morning.
MR. DODD: Very well.
THE PRESIDENT: The Tribunal will now adjourn.
(The Tribunal adjourned until 4 March 1946 at 1000 hours.)
OFFICIAL TRANSCRIPT of the International
COLONEL SMIRNOV: Several days ago the Tribunal directed me to find out with reference to the reading of an official British report, as to the responsibility of the killing of fifty RAF officers who were prisoners. At the time it was suggested that it be read as soon as possible.
May I read into the record several paragraphs of this report? I shall read those parts of the document which, in general, give the characteristics of this criminal act and, on the other hand, it lays down the responsibility for the act.
THE PRESIDENT: Colonel Smirnov, you are offering the document, are you, in evidence? You are seeking to put the document in evidence?
COLONEL SMIRNOV: This document has already been presented in evidence and it has been accepted as such. I would like to read into the record certain parts of it. It has been submitted as USSR Exhibit 413.
THE PRESIDENT: Very well.
COLONEL SMIRNOV: I shall cite paragraph one of the official British report.
"On the night of the 24-25 March 1944, 76 RAFofficers escaped from Stalag Luft III at Sagan in Silesia where they had been confined as prisoners of war. Of these, 15 were recaptured and returned to the camp, 3 escaped altogether, 8 were detained by the Gestapo after recapture. Of the fate of the remaining 50 officers, the following information was given by the German authorities:
"(a) On 6th April 1944, at Sagan the acting Commandant of Stalag Luft III (Oberstleutenant Cordes) read to the Senior British Officer (Group Captain Massey) an official communication of the German High Command that 41 officers (unnamed) had been shot 'some of them having offered resistance on being arrested, others having tried to escape on the transport back to their camp.'
"(b) On 15 April, 1944, at Sagan a member of the German camp staff (Hauptmann Pieber) produced to the new Senior British Officer (Group Captain Wilson) a list of 47 names of the officers who had been shot.
"(c) On the 18th of May, 1944, at Sagan the Senior British Officer was given three additional names, making a total of 50.
"(d) On or about 12 June, 1944, the Swiss Minister in Berlin received from the German Foreign office, in reply to his enquiry into the affair, a note to the effect that 37 prisoners of British nationality and 13 prisoners of non-British nationality were shot when offering resistance when found or attempting to re-escape after capture. This note also referred to the return of urns containing the ashes of the dead to Sagan for burial." were shot while attempting to escape. It was established, however, by the investigating commission of British authorities that the officers were killed and they were killed by members of the Gestapo on direct orders from Keitel and Goering. of these two points, the official British report, that is point seven and eight.
"General Major Westhoff at the time of the escapes was in charge of the General Department relating to Prisoners of War and on 15 June 1945, he made astatement in the course of which he said that he and General von Graevenitz, the Inspector of the German POW organization, were summoned to Berlin a few days after the escapes and there interviewed by Keitel. The latter told them that he had been blamed by Goering in the presence of Himmler for having let the prisoners of war escape.
"Keitel said, 'Gentlemen, these escapes must stop. We must set an example. We shall take very severe measures. I can only tell you that the men who have escaped will be shot; probably the majority of them are dead already.' When von Graevenitz objected, Keitel said, 'I don't care a damn; we discussed it in the Fuehrer's presence and it cannot be altered.'" "Max Ernst Gustav Friedrich Wielen was then the officer in charge of the Criminal Police at Breslau, and he also made a statement dated 26 August, 1945, in the course of which he said that as soon as practically all the escaped R.A.F. officers had been recaptured he was summoned to Berlin where he saw Arthur Nebe, the Chief of the Criminal Police Head Office who showed him a teleprint order signed by Kaltenbrunner which was to the effect that on the express order of the Fuehrer over half of the officers who had escaped from Sagan were to be shot after their recapture.
It was stated that Mueller had received corresponding orders and would give instructions to the Gestapo. According to Wielen the Criminal Police, who were responsible for collecting and holding all the recaptured prisoners, handed over to the Gestapo the prisoners who were to be shot, having previously provided the Gestapo with a list of the prisoners regarded by the Camp authorities as troublesome."
"Flight Lieutenants Wernham, Kiewnarski, Pawluk and Skanziklas ----"
THE PRESIDENT: Colonel Smirnov, are you going to read now some of the evidence upon which the report is based?
COLONEL SMIRNOV: Now I would like to read into the record the text of the report and other parts of the report which deal with the methods of investigation in regard to individual officers. officers.
THE PRESIDENT: Paragraph 4?
COLONEL SMIRNOV: Yes.
THE PRESIDENT: Very well.
COLONEL SMIRNOV: I quote.
"On orabout the 26th of March, 1944, these officers were interrogated at the police station in Hirschberg and were then moved to the civil gaol in that town. On the morning of the 29 March Pawluk and Kiewnarski were taken away and later in the day Skanizklas and Wernham left. Both parties were escorted but their destination was unknown. They have not been seen since and the urns later received at the Stalag showing their names bear the date 30 March, 1944.
"Squadron Leader Cross, Flight Leiutenants Casey, Wiley and Leigh and Flight Officers Pohe and Hake.
"Between 26 and 30 March, 1944, these officers were interrogated at the Kripo Headquarters in Goerlitz and then returned to the gaol there. During the interrogation Casey was told that he would lose his head; Wiley that he would be shot and Leigh that he would be shot. Hake was suffering from badly frost bitten feet and was incapable of travelling for any distance on foot. On 30 March the officers left Goerlitz in three motor cars accompanied by ten German civilians of the Gestapo type. The urns later received at the Stalag bear their names and show them to have been cremated at Goerlitz on 31 March 1944.
"Flight Lieutenants Humphreys, McGill, Swain, Hall, Langford and Evans, Flight Officers Valenta, Kolanowski, Stewart and Birkland.
"These officers were interrogated at the Kripo Headquarters in Goerlitz between 26 and 30 March. Swain was told that he would be shot, Valenta was threatened and told that he would never escape again. Kolanowski was very depressed after his interview. On 31 March these officers were collected by a party of German civilians, at least one of whom was in the party which had come on the previous day. The urns later received at the Stalag bore their names and show them to have been cremated at Liegnitz on a date unspecified."
data also relates to different groups of British officers who were killed by the Germans in Stalag Luft III. to Flight Lieutenants Grisman, Gunn, Williams and Milford and Flight Officer Street and Lieutenant McGarr. The same information is given in regard to Flight Lieutenant Long, Squadron Leader Williams, Flight Lieutenants Bull and Mondschein, Flight Officer Kierath. The same kind of information is given with reference to Flight Officer Stower, Flight Lieutenant Tobolski, Flight Officer Krol, Flight Lieutenants Wallen, Marcinkus and Brettell, Flight Officer Picard, and Lieutenants Gouws and Stevens, Squadron Leader Bushell and Lieutenant Scheidhauer, Flight Officer Cochran, Lieutenants Espelid and Fugelsang, Squadron Leader Kirby-Green and Flight Officer Kidder, Squadron Leader Catanach and Flight Officer Christensen and Flight Lieutenant Hayter, from this official report. I refer to paragraph 6 of the official British report and also to paragraph 5.
THE PRESIDENT: I was going to suggest you should read paragraph
COLONEL SMIRNOV: I was going to read paragraph 5 of the British test.
"According to the evidence of the survivors there was no question of any officers having resisted arrest or of the recaptured officers having attempted a second escape. All were agreed that the weather conditions were against them and that such an attempt would be madness. They were anxious to be returned to the Stalag, take their punishment and try their luck at escaping another time.
"6. The Swiss representative, M. Gabriel Naville, pointed out on 9 June, 1944, in his report on his visit to Sagan, that the cremation of deceased prisoners of war was most unusual (the normal custom being to bury them in a coffin with military honours) and that was the first case known to him where the bodies of deceased prisoners had been cremated. Further, it may be noted that if, as the Germans alleged, these 50 officers who were recaptured in widely scattered parts of Germany had resisted arrest or attempted a second escape, it is probable that some would have been wounded and most improbable that all would have been killed. In this connection it is significant that the German Foreign Office refused to give to the Protecting Power the customary details of the circumstances in which each officer lost his life."
which I had the honor to relate to the Court.
THE PRESIDENT: I think it would perhaps be better if you also read the appendix so as to show the summary of the evidence upon which the report proceeded, Paragraph 9.
COLONEL SMIRNOV: I did not read the appendix because it was read. I shall read it once again.
"9. The Appendix attached hereto gives a list of the material upon which this report is based. The documents referred to are annexed to this report.
"APPENDIX "Material upon which the foregoing report is based;"1. Proceedings of Court of Inquiry held at Sagan by order of the Senior British Officer in Stalag Luft III and forwarded by the Protecting Power.
"2. Atatements of the following Allied witnesses:
"a. Wing Commander Day.
"b. Flight Lieutenant Tonder "c. Flight Lieutenant Dowse "d. Flight Lieutenant van Wymeersch "e. Flight Lieutenant Green "f. Flight Lieutenant Marshall "g. Flight Lieutenant Nelson "h. Flight Lieutenant Churchill "i. Lieutenant Neely "j. P. S. M. Hicks "3. Statements taken from the following Germans:
"a. General Major Westhoff "b. Oberregierungs und Kriminalrat Wielen (two statements) "c. Oberst von Lindeiner.
"4. Photostat copy of the official list of dead transmitted by the German Foreign Office to the Swiss Legation in Berlin on or about 15th June 1944.
"5. Report of the Representative of the Protecting Power on his visit to Stalag Luft III on 5th June 1944."