of the place in the Eastern territories where actions took place, and that the "course of operations" contained the number of losses, number of locations destroyed and persons killed, arrest of agents, reports about interrogations, reports on civilian sectors. Can you confirm to me that this "course of operation" speaking of losses, number of towns destroyed, only and exclusively concerned fights of the Wehrmacht against partisans?
A I don't think so, because I asked Schubert sofar as I recall at that time what was in the reports his unit forwarded to the Reichssicherheits Hauptamt in Berlin ; and he claimed that these things were in it, and I had the feeling that the reports of the Wehrmacht would go through the Wehrmacht channels, and not through the channels of an Einsatzgruppe. I had the impression that these were the actions of the units. How far the Army was connected with it, that is a completely different thing. Schubert explained to me his position that he was something like a file clerk and adjutant to Ohlendorf, that he filed the reports away, and that is what he saw in the reports. this particular Wehrmachts area?
THE PRESIDENT: Counsel, I am afraid that now we are getting into a discussion on the facts themselves, and not of the affidavit. You may inquire as to whether the affidavit represents what the interrogatee said, but to go into the merits of the facts themselves is a little beyond the scope of this present inquiry.
DR. KOESSL: If Your Honor please, I only come to talk about it because this place in this affidavit is not quite explicit in the German, at least, it is not at all to be understood.
THE PRESIDENT: If it becomes meaningless, then, of course, it is Meaningless. That is what the defendant signed, and that is the only thing he will be charged with sofar as that document is concerned, naturally.
also later, Schubert was interrogated by you. time.
Q Did you also interrogate him on 14 March?
A What year?
Q '47. the Defendant Schubert? the mission of Siebert.
THE PRESIDENT: Suppose you look for that during the recess, Mr. Wertenberg. We will now recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: Take your seats, please.
MR. WALTON: The Prosecution at this time desires to object to the line of inquiry into the interrogation of 14th of March, 1947, which was made some eighteen dry subsequent to the signing of the affidavit under discussion. We object for the some reasons, that it is not materiel. It is a device to pry into the files of the Prosecution. We feel that it is a matter totally irrelevant to the signing of the affidavit, and for matters of relevancy we object.
THE PRESIDENT: Let's hear what question you will present, and then we will rule.
BY DR. KOESSL:
Q Witness, in the affidavit of the 24th of February under No. 3, you have said the following: "In December 1941, 1 don't recall the exact date, I was ordered by Ohlendorf or Siebert,", etc. In connection with this formulation a discussion developed as to whether the addition of Siebert may be adopted in the affidavit. Do you recall this?
A I have this in my draft of 21st of February. I have already both names in, "Ohlendorf or Siebert", and I am right now under the impression that the Defendant Schubert did not know who gave him the order to attendance, but I cannot tell you off-hand if we had a discussion about the point or not.
Q Wasn't it the object of all the discussions which took place about the position of Siebert? can check it. You referred before to the interrogation of 14th of March. and the following affidavit of 21st of February, and the affidavit of the 24th which followed from this and the interrogation of the 18th of March which again is in connection with the previously mention ed one.
MR. WALTON: I renew my objection, Your Honors, to any interrogation subsequent to the signing of the affidavit.
THE PRESIDENT: This does seem perhaps a, little rambling and a little undecisive.
DR. KOESSL: Yes, sir; Your Honor. I would like to formulate my question somewhat differently. BY DR. KOESSL: Schubert discussions took place about the question of whether Siebert gave an order to Schubert at all?
A I have questioned Schubert on the position of Siebert. It is quite possible that in finding out the chain of command and the personnel in the unit and to find out their positions that I have asked him the question, "Did Siebert ever give you an order?" That is very probable.
Q Can you remember that Schubert said, "No, not Siebert but Ohlendorf gave me this order?" vit that Ohlendorf gave the order, but as in my mind on account of Schubert that fact was not stated definitely, I put both names down with the word "or" in between them. February; does this affidavit correspond with the one of the 24th of February verbatim? on the 24th of February in my presence, yes. As far as I can see right now, there might be a word changed, but in regard to the meaning, the statement of the 21st was the material for the statement of the 24th because there I showed him the affidavit, he made the corrections, it was re-typed and presented to him for signature.
of February also contained the formulation, "I superfised".
A In what paragraph, please?
Q The phrase, "I supervised", is contained several times in the affidavit.
A What paragraph, please?
Q Under No. 3 it says: "I was ordered to supervise the execution." Is this formulation also to be found in the affidavit of the 21st of February?
Q Then I have one final question. During the interrogation at Oberursel around November 1945, did you threaten the Defendant Schubert with a broom and tell him that you would, if necessary, help to refresh his memory?
DR. KOESSL: I have no further questions, Your Honor. BY MR. WALTON:
Q One question on the interrogation of the Defendant Schubert. Mr. Wartenberg can you recall whether you ever held any contraversial discussions with Schubert as to his position in Einsatzgruppe D? of the interrogation if it took place?
THE PRESIDENT: Next counsel. BY DR. HEIM (Attorney for Defendant Ruehl): sional preasons. I ask that I may be premitted to put a few questions to the witness, as his assistant. I refer to Document Book III_D, page 121, in the German, page 76 in the English text, Document No. 4149, Exhibit No. 169. This is an affidavit of the Defendant Ruehl.
Q Witness, may I ask you the following: According to the German and English document book, one would have to assume that the affidavit was made out on the 24th of May, 1947. At end of the document book it says that the affidavit comes from the 26th of June, 1947. May I ask you when the affidavit was actually given? that it was the 26th of June 1947 and on the English part also on the 26th of June.
to be a mistake, that is, the date of the 26th of May?
Q When did you interrogate the Defendant Ruehl for the first time? at that time?
A I don't think so, because, as I recall, this is the only affidavit I took of Ruehl.
Q Did you interrogate the defendant again, and when was that? between 1400 and 1530 and on the 24th of June between ten and tenthirty.
Q I did not get the last number, on the 21st of June? out which the Defendant Ruehl signed or was this affidavit made out as a result of the interrogation of the 9th of June?
AAs far as I can recall, I don't have these dates in my mind any more - what day I made out an affidavit, but usually an affidavit is prepared after all interrogations have been completed, unless some new items come out or the interrogatee informs me about some other interesting items and I have the feeling that this affidavit was made out after all interrogations. of the 24th of June expressed misgivings about the first draft of an affidavit? because in my record here I have the notification, which I will read in German, "I had the affidavit written out once again. Please read this and sign it."
of June, but on the 26th of June, is that correct? certain information or refusing the oath, may I assume that after you what you have already said, you have not done so in this case -
MR. WALTON: If it please the Tribunal, Counsel for Ruehl is now going into the subject of constitutional rights as regards the giving of testimony against one's own interest. Constitutional rights do not apply to these defendants. The defendant is presented with the affidavit. He can read it over and make what corrections he so desires, or he can refuse to sign it. There is no burden on the interrogator to inform him of any rights he may have, but there is no pressure on him to sign or not to sign. How any questions concerning the constitutional rights of these defendants are entirely irrelevant and of no material value to this case.
THE PRESIDENT: The Court disagrees with you, Mr. Walton, that the defendants are not entitled to constitutional rights.
These defendants are entitled to every right guaranteed by the United States Constitution as introduced in all subsequent agreements with other nations which brought about these trials. However, the Tribunal does not see up to this point that the defendants have been deprived of any of those constitutional rights. It would appear that, at least up to this point, that every opportunity was given the defendant to read, the statement which he signed and the statement itself indicates an opportunity was given for correction, so, therefore, the constitutional rights were protected, so it isn't that they are not entitled to constitutional rights. It is that those constitutional rights were preserved.
MR. WALTON: If I understood the question of Counsel for the defendant Ruehl, he asked him if Mr. Wartenberg informed him as to whether or not he could sign or not sign.
THE PRESIDENT: It is so obvious that anyone presented with a document to sign may sign or not sign; that question put in that fashion is entirely superfluous. If there is any discussion that the defendant refused to sign and then was threatened or was cajoled, or was persuaded, or was offered some definite gain, if he signs, then that is highly relevant.
MR. WALTON: I quite agree with you, Your Honor, but the question in its present frame, as I understood it, I am objecting to as superfluous and as irrelevant.
THE PRESIDENT: Counsel, you have now heard this discussion, so please frame your question keeping in mind what the Tribunal has uttered.
DR. HEIM: My question did not refer to the signing of the affidavit. It was supposed to be formulated in the sane way as my colleagues have stated it.
THE PRESIDENT: Please put the question. that the interrogatee, namely, the Defendant Ruehl in this case, had a right to refuse to give testimony? to me that he does not want to talk about certain incidents.
THE PRESIDENT: Did you ever state to the defendant that he was compelled to sign any document which you presented to him?
THE WITNESS: Never, sir.
DR. HEIM: I thank you.
THE PRESIDENT: Next counsel, please. BY DR. ERICH M. MAYER (Attorney for the Defendant Braune):
DR. MAYER: My questions refer to Document 4234, Exhibit No, 160, in the German Document Book III B, on pages 96 and 97. This is the interrogation of the Defendant Braune by the witness Wartenberg.
of the interrogation the defendant Braune refused to give his testimony Under oath? because he thought that this was equivalent to giving an oath? I repeat the question. Is it correct that after having refused to give an oath the defendant also refused to give an affidavit, because he was of the opinion at least according to his German legal conception, that such an affidavit was equivalent in form to the oath? Braune expressly contains the formulation that he did not make this statement under oath, while in your note under page 97, it says that the statement was made under oath? which is signed by me, which appears after the signature of Braune?
A I should like to state that on my copy the word "Eidesstattliche Erklaerung" at the end, the word, "Eidesstattliche" has been crossed out by me at that time. It is just a typographical error and if you will read the last paragraph before the signature of Dr. Braune, it states that he made the declaration in the German language and it does not say that it is a sworn statement. It further states there that this declaration is not made under oath, but under his word of honor which Braune gave me at the interrogation.
DR. MAYER: This explanation is sufficient. I have no further questions to put to the witness.
THE PRESIDENT: Very well. Any other questions to be put to Mr. Wartenberg by defense counsel?
Apparently not. If you have anything further, Mr. Walton, in connection with this witness -
BY MR. WALTON:
Q Mr. Wartenberg, a great deal has been said about your methods of interrogation. I should like to go a little further into your qualifications, Did you have prior to the time you became a member of the Office of the Chief of Counsel any experience in interrogations? experience before you became a member of the interrogation staff in the Office Of Chief of Counsel? Training Center and I observed there the School for interrogation in the German language. I had, later on, additional training with the British and American forces in England. I was assigned later on to Seventh Army Interrogation Center and the Theatre Interrogation Center at Oberursel and during all my army career, the basic element of my work was interrogations, with the exception of some short periods when I was used for other work.
THE PRESIDENT: What rank did you hold in the Army?
THE WITNESS: My last rank was Captain,
Q How long have you been on the staff here? else present? this building I have always a German stenographer present and in addition to that there is a guard. mistreatment of an interrogates, there would be witnesses to such action on your part, would there not?
in the Office of Chief of Counsel promise anybody, either a defendant or a witness, a reward for his testimony or for the execution of an affidavit? to obtain an affidavit or a statement from anyone? affidavit? compelled by anyone, else in your presence to sign an affidavit or a statement? an affidavit is prepared by you? interrogation room, if he is an inmate of the Nuernberg prison, he is under guard. He identifies himself by name. He is either taken under oath or reminded that he is still under oath. Then the interrogation is taken and, after I have the records from my secretary, I am going through those facts which I consider important. I write those facts out and then I recall the interrogatee. I remind him of his oeath, if he had sworn an oath before, and I present him with the affidavit. I ask him then to read it, to make all corrections he wants to, but to let me know beforehand So that we can do it together on all the necessary copies. After that, when the interrogatee has made all his corrections, he initials the corrections, and signs the affidavit in my presence.
by you were changed radically by the interrogates so that the whole affidavit had to be rewritten in order to comply with the wishes of this affiant? on the new draft?
A Certainly, they can make their changes. There is one case where an affidavit was written four or five times -- I am not sure about the number, but it was definitely more than three times, because the defendant was not satisfied with the draft and he has all chances to make all necessary corrections.
Q Do you remember the name of this then interrogatee? your draft of the affidavit unsatisfactory and drew up their own statements?
A Yes, that happened in the case of Haensch. After two interrogations, I had prepared an affidavit and he told me that I mixed up things; that I distorted facts in a way that he was not able to sign it. He insulted me also in the manner he talked to me and I told him, "Draw up your own affidavits." He did so and after I had it, I read the affidavit. I called him back. I had him initial each single page and sign this affidavit without any additions. you that the affidavit already signed by them was not complete and they therefore wanted to make a new statement or additional statements?
DR. GAWLIK (ATTORNEY FOR DEFENDANT NAUMANN): I object to this question, Your Honors, for the following reason. This is redirect. The redirect can only refer to the preceding cross-examination and, secondly, this question is completely irrelevant in this general form. The prosecutor would have to ask whether this refers to a defendant in the dock here, but I don't know what relevancy it has - what has happened in other cases, which do not have anything to do with this trial.
THE PRESIDENT: Well, Dr. Gawlik, you and your brother counselors here have levelled a pretty steady attack on this witness' procedure so that now prosecution counsel is merely endeavoring to explain what is the procedure. Of course, if the witness is now speaking of interrogations of witnesses or defendants not connected with this case, that would be irrelevant.
DR. GAWLIK: Yes.
THE PRESIDENT: It is not apparent whether he is including in his answer generally the whole orbit of his manner of questioning or whether he is restricting it to the defendants in this case, and I would suggest in that respect, Mr. Walton, that he confine it to only those directly connected with the present case which we are trying.
MR. WALTON: I think we can clear that up in one moment, Your Honor.
THE PRESIDENT: Yes.
Q Mr. Wartenberg, during your contract with Office Chief of Counsel what other case or cases, if any, have you worked on, except this one?
when affiants informed you that the affidavits signed by them were not complete and that they wanted to make a new statement, what was your procedure? after some time after the affidavit had been taken, I discovered a typographical error in the date. I recalled the defendant Klingelhoefer, together with his defense counsel, because by that time the indictment had been served on him. It was stated to me at that time that certain points were not clear in the previous affidavit and I wanted to have it corrected and that Klingelhoefer will present me with a new affidavit. Some days later, he came up to the office. He handed me his affidavit. His defense counsel was present. We discussed certain points and at the end the affidavit was signed and handed over to the prosecution staff.
Q One further question. Let me direct your attention to the time when you interrogated the then witness, now the defendant Blobel. Do you recall whether or not that Blobel, at the time when he was represented by Deputy Reich or von Radetzky, or someone, do you remember whether or not he stated he knew executions were carried out in his absence?
MR. WALTON: No further questions.
THE PRESIDENT: Very well, Mr. Wartenberg, you will be excused and we will take up the reading of the opening statements. I do not recall who is next in order. Who is ready to proceed?
You are ready, Dr. Gawlik?
(The witness was excused.)
DR. GAWLIK (for the defendant Seibert): My evidence--(interruption)
THE: PRESIDENT: Just a moment, please.
Dr. Gawlik, we are sorry that you may have to miss your turn. It appears that we don' have the translation of your Opening Statement. Would it be inconvenient, too troublesome, for you to allow the next attorney to read his Opening Statement, and then you can be called as soon as the translation appears.
DR. GAWLIK: Yes, certainly.
THE PRESIDENT: Is Steimle's attorney here? Are you ready? Oh, yes; very well. Who is ready?
DR. MAYER(for the defendant Braune):
THE PRESIDENT: Very well, you may proceed, Dr. Meyer.
DR. MAYER: Your Honors, the defendant Braune, like all other defendants, is charged under three counts: first, Crimes against Humanity, Countl; second, commission of war Crimes, that is Count 2; and third, Membership in a Criminal Organization - Count 3. The Prosecution in a nine document books has submitted material and has emphasized in its Opening Speech in which manner the defendants including the defendant Braune, incriminated themselves. They have-
THE PRESIDENT: Oh - just a moment-- I am sorry. I thought that you had this translation. I am very sorry, Dr. Mayer, to interrupt. But you know it is quite a task to interpret extemporaneously. So we would like to proceed with those Opening Statements whose translations We actually have here. I will indicate the ones which are ready: Defendants Walter Haensch, Heinz Schubert, von Radetzky, Ott, Biberstein, and Grad.
Now, Dr. Bergold has asked me to allow him to read his statement this afternoon. So, who is ready, of the ones I have named?
DR. RIEDIGER (for the defendant Haensch):
THE PRESIDENT: Very well, you may proceed, please, Dr. Riediger.
DR. RIEDIGER: Your Honors, the defendant Walter Haensch was taken over by the SD with the rank of Unterscharfuhrer in May 1936, after he had been working as a civilian legal consultant with the SD since 1 August 1935.
of Sonderkommando IV b for a short time. mer duties in the which main Security Office and from September 1943 till the end of the war he was attached to the Office of the Reich Plenipotentiary in Denmark as administrative official in the Main Department "Administration and Law". against humanity and war crimes, and calls him to account for membership in the SS, the latter being an organization declared criminal by the IMT. it concludes that Haensch as Chief of the Kommando is responsible
1) for the shooting of 861 persons, including 139 Jews and 649 Commissars in the neighborhood of Kiew during the the from 14 January 1942 to 12 February 1942,
2) for the shooting of 1, 317 persons, including 1,224 and 63 Commissars in the neighborhood of Artemowsk during the time from February to March 1942. Service grade attained by him. evidence for the following facts:
1) It is untrue that Haensch in the period mentioned by the Prosecution was already responsible Chief of Sonderkommando IV b. The defendant did not assume his duties in Russia until about the middle of March 1942. In evidence I shall present documents, witnesses and the defendant himself, whom I shall call to the witness stand.
2) The entire work of the Defendant in the Russian Theatre of Operations, as far as it must be taken into consideration for purposes of criminal investigation, lasted only a few weeks, due to interruptions caused by temporary duty elsewhere and ended in June 1942.
tioned kinds of evidence.
3) The defendant admitted that during the time when he was in command, 3 or 4 shootings took place. show that they do not constitute the facts of a crime against humanity and of a war crime. as a soldier; he was not in the Communications Zone, but in the immediate combat zone with the fighting troops and closely cooperated with the. area of which he was in charge. Warfare in the East was especially characterized by insidious surprise attacks and incredible cruelties, espionage and acts of sabotage committed by the civilian population. This resulted in harsh measures, which were, however, still in conformity with International Law and the customs of war. in the nature of such purely military defense necessities and deterrent measures. had nothing at all to do with the extermination of the Jews and the elimination of the so-called racially inferior or politically undesirable elements. knowledge of all these things my client could derive from all sources of information at his disposal. for these must consider all instructions issued to the defendant before, when, and after, he assumed his duties and, above all, his own observations during his time with the Sonderkommando. Also in this respect the facts will demonstrate that in view of the strict observance of the Fuehrer's Order Number I concerning "secrecy", the large distances between the individual Kommandos, between which there was no connection at all moreover in view of the fact that the purposes originally assigned were in the course of time radically changed, the defendant Haensch could obtain any knowledge only from his own activity.
to the Tribunal and to prove that in it Haensch neither committed any of the crimes mentioned in the indictment, nor became an accessory to it. by the application of Control Council Law No. 10 concerning a soldier under the military obligation of obedience and the limits of what may be demanded of a person in the event of conflict of duties. tion according to the basic directives laid down in the IMT judgement prompts me to examine once more whether the legal principle nullum crimon sine lege (no crime without a law), which is firmly established in all civilized nations, has been sufficiently considered. subjective prerequisites fur a Verdict of guilty exist, especially if all reasons precluding guilt are taken into consideration; and, above all, whether my client was conscious of acting illegally.
DR. KOESSL (for the defendant Ott): Your Honors, the Prosecution's charge of systematic murder of nations comprises a complexity of guilt which can hardly be realized in its full scope, let alone can it be defended. of this trial if one considers it as detached from the individual personalities which fate has brought into the dock here. The trial here concerns humanity without God.