QDid you receive an order as you stated in your direct examination from Heydrich calling for a liquidation of Jews other than those between the ages of sixteen and thirty-two years of age; you stated that you put this in your office safe in order to think it over. What was your action upon it?
AThe action consisted of the fact that I did not pass on the order.
QYou refused to pass this order on?
AIn the case I left the order in the safe and did not hand it on.
QThat, at least, was a passive refusal?
AYes, it was at least that.
QYes there any other supervisor or superior who checked up on the different Einsatzgruppen to see the orders that had been issued from Berlin were carried out?
ANo, there was no such man at the time. Heydrich was the chief, and apart from him there was nobody special who was given the commission to check on the Einsatzgruppen, or do anything of the sort.
QWhen correspondence of this nature was received from Berlin, this being a military, or at least a para-military organization, weren't you required to reply by endorsement, that is, something like contents received, or noted, carried out, or ignored?
ANo. In that case it did not happen that way.
QThen you had no duty to inform Berlin of the receipt of these orders?
AIf it came as a top secret,-this is purely a formal matter - only the receipt was confirmed, but if it was not a top secret matter, no receipt was given for it. It was a more formality, it has nothing to do with the contents.
QThen the only matter on which Berlin was informed as to the execution of the tasks given to their subordinate commanders was by the reports sent to Amt-IV RSHA, is that correct?
AOffice-IV would not have got any information from any other authority.
QWere they informed -- or were your reports directed to Amt IV?
AI don't think so. It is possible that monthly reports were still made, but I can not remember any details any more.
QIn other words, you merely do not remember?
AIt is very difficult to remember details what forms and what kind of reports were made.
QThese details concerning deaths, they were not merely formal report, were they?
AThey were reports. Situational Reports, and Activity Reports, which as far as I remember the commander sent in every month.
QTo you?
ATo Berlin as well as to me.
QBut to you first?
ASince these commanders had the authority to issue reports at their discretion, the two reports could be made simultaneously.
QYou did receive your reports?
AWhat do you mean? My own?
QThe report from your subordinate commanders, which you say it was their privilege to sent out simultaneously. You received yours?
AFrom my subordinate officers, yes.
QDuring the entire time of your command, these reports did not contain reports of executions?
AI can not remember details any more. I do not dare to state that in a huge territory and for that set tine there were no deaths.
QThere may have been executions committed by your subordinates then, you know of that possibility, don't you?
AThat subordinates acted according to orders and could have done so is quite possible.
QDo you remember any instances in which executions were carried out by your subordinates and in turn reported to you?
AI can not definitely remember any such occurrences.
I remember one event in Kauen, an armed dispute with partisans in the city proper, but now I can not say any more what actually happened there, and how many people died there. I remember for example that this happened.
QCan you further recall deaths which occurred because they were Jewish, nor armed but Jewish; therefore, not partisans, but Jewish?
AAt the moment I can not remember any such cases.
QYou do not exclude the possibility that his could have happened while you were in command, do you?
AIt might have happened?
QYou have stated that when you were assigned to the East, you had two positions. First, the Chief of Einsatzgruppen-A, and, secondly, that you were BDS or Commander-inchief of force of Security Police and SD, is that right?
AYes.
QGive us, not a long description, but a short precise description of your duties, first, as Chief of Einsatzgruppe-A, secondly, as Commander-in-Chief of Security Police and SD?
AThe tasks as Chief of Einsatzgruppe-A followed the instructions Heydrich gave me, and depended on the position in which Einsatzgruppe-A was
QThat was the position of Einsatzgruppe-A?
AWhat the position was? The position of Einsatzgruppe A was, as stated yesterday, that there were the three commandants, I-A at Krasnogwardeisk, and commander I-A was part of the roar army area in Estonia, and had to deal with those areas which overlapped the civilian administration; the Commander Krasnogwardeisk was working in the territory of the 18th army, and the commander of Loknia was near the front with the 16th Army.
QOne-B, Two-A- III, no longer was active, no longer existed?
AThese former commandos One-B, Two-A-III were dissolved before my time, or were subdivided before my time. I don't know exactly whether the Kommando of Loknia consisted only of Kommando-II or only part of this, and whether a new subdivision were added. All this happened before my time. I only know that during my time One-A, Krasnowardeisk and Loknia were talked about and written about.
QLet's get on to the BDS. When Heydrich assigned you to Einsatzgruppe-A you stated it was no longer active as an Einsatzgruppe, is that correct?
ATasks as had been intended for Einsatzgruppe-A at the beginning, were no longer dealt with, because the Kommando Loknia was part of the troops, and Kommando Krasnowardeisk dealt with part of army duties, that is espionage, counter intelligence, part of them general security duties. These were the original tasks which had been assigned to the Einsatzgruppe.
QThen If this was virtually a non-existent man, why, against your expressed wishes, did Heydrich insist upon naming you the Chief of Einsatzgruppe-A?
AWhy he insisted on it? Or rather, why he didn't comply with my request to send somebody else there in my place. I don't know exactly why. He told me at the moment he didn't have any one at his disposal for this.
QMy question is, not why he didn't appoint some one else. You have stated that, at least in a sense, this was a case of temporary command. You had nothing to do. You had no Kommando under Einsatzgruppe-A?
AI understand you now. I said yesterday that the group staff in Krasnowardeisk, that is, the group staff of Einsatzgruppe-I-A were almost one unit with Kommando Krasnogwardeisk, because no other task had been assigned to the kommando in such a way, that the existence of special groups or groupstaff was no longer justified; they had not really been dissolved but they had become a unit.
QFrom that I gather that there was at least one kommando still active as you were appointed commander?
AYes, as I have described yesterday.
Q while you were chief of Einsatzgruppe-A, you have stated that there is a possibility that executions of Jews took place, is that correct?
AIn Einsatzgruppe-A this opportunity had not existed as in that territory there were no Jews.
QThen let's broaden the question to include your task of the troops under your command as BDS-Ostland? Were there any executions that took place during your period of command as chief of Einsatzgruppe-A or BDS Ostland?
AI already stated before, this might have been possible.
QFirst, was Estonia under your command?
AEstonia was part of this territory, that is, in an ambiguous position, in as far as first, there was Sonderkommando-A which came under the commander in the rear of the territory in Verra, and, also under the commander of the Security Police and SD, and again belonged to the general district of Estonia, therefore, there was an overlapping of the competency there.
QCouldn't that be simplied by saying that although they could receive orders from others, they also received orders from you, and in turn had to report all happenings within their areas to you?
ANot every event had to be reported to me. In many cases it might have happened, that only the military office was informed, or only a civilian office was informed. There is no guarantee that I heard about every event.
QWas it more or less a common courtesy to inform the commanding officer of action of troops under him?
AIt was the usage generally, but there is no guarantee that this always happened, because there was a possibility that the reports were sent to Berlin immediately. The commander had special authority to report independently from his superior.
Q:Previously you sadi that they must send reports and they had the right to make the simultaneously with a direct report to Berlin, and send a cive-copy to you?
A:They could have sent this to me, yes.
Q:Was Latvia also under your command?
A:Latvia was under the commander of Latvia.
Q:Was there a commander of Security Police there?
A:A commander of Security Police and the SD.
Q:Weren't you the commander-in-Chief of Security Police and SD?
A:Yes, I was the commander-in-chief.
Q:Therefore, these two as were subordinated to you?
A:With the modification I made yesterday.
Q:Which was?
A:That is an individual general district, as independently administrated, it was the general-commissar who was the responsible man. Under him was the SS and Police Leader, and order him the commander of Security Police and SD. This results in an subordination system which can make it possible that somebody might be omitted.
Q:You were the BDS Ostland?
A:Yes.
Q:These troops then of Estonia, Latvia, Lithuania and White Ruthenia were KDS for that particular countries?
A:As commanders of the security police, yes.
Q:Therefore, they were subordinate to you, is not that correct?
A:With the limitations I have mentioned.
Q:Did they not report to you?
A:They did send reports to me, but I have no guarantee that I got all of the reports.
Q:There is in the course of events a good, chance that you got most if not all?
A:I didn't know that.
Q:Was that not the custom to forward the reports to you?
A:I have explained repeatedly that the commanders had the right to give any reports to the RSHA, the Reich Ministry Security Office, and then to the Einsatzgruppe-commander; the scheme was quite different here, there was a different possibility of injustice for the RSHA and this could result in entirely different channels of command.
Q:But perhaps the channels were devious and many; but you were in one of the channels, were you not?
A:Yes, I belonged to it.
Q:You were in a commanding position?
A:I must repeat again and again - in a limited position as commander resulting from the special situation in this territory.
Q:Let's make it very clear then. You could issue orders, could you not?
A:Yes, I could issue orders.
Q:They owed you the duty of rendering reports and carrying out your orders, is that right?
A:If I had passed on this Heydrich Order at that moment, I would have given an order, of course, and would have requested that reports be sent to me; and would have waited until it was reported to me that this order had been carried out.
Q:I am going to show you one of the many reports received from the occupied zone of Russia. You have stated now that White Ruthenia, Lithuania, Estonia and Lativia were under your command, is not that correct?
A:I repeat; in the form I stated.
Q:I shall repeat, you could issue orders to the KDS, and these armies with the full expectation they would be carried out, is that correct?
A:Orders could be given by me, as well as by the commissar-general, and, also by the local Police and SS Leader; therefore, there were many possibilities of issuing orders, part of those orders could be given from the Reich Ministry Security Office, and also from the Higher Police and SS Leader, who would always do this immediately.
Q:Didn't the Higher SS and Police Leader customarly, except in the case of an emergency, issue final reports or rather orders to you for your subordinates?
A:Please repeat that.
Q:Was it not a custom, except in cases of rare emergencies, for the Higher SS and Police Leader to issue order to your subordinates through you?
A:During the time when I was there, I cannot remember any specific case. It might have been possible.
Q:Thank you. Now I want to point out a report I have here, and it would seem to the eye that there are clear marks of demarcation that is showing an expressed chain of command, and I want your comment upon it? (hands photostat to the witness)
A:Do you mean this page here? Do you mean this page here?
Q:That is right (Counsel is at the witness's box). I also would like to show the court what I mean and I point out what appears as a line of demarcation.
THE PRESIDENT:You want to do something for the purpose of the record -- you had better talk into the microphone, Mr. Clancy.
MR. CLANCY:I want to show the Tribunal the line of demarcation which would seem to note a definite chain of command.
It will be noted -
THE PRESIDENT:You are not getting that?
THE INTERPRETER:No, sir, I cannot hear.
MR. CLANCY:I wish to point one to the Tribunal the lines of demarcation which are outlined in the document, and which appears after each division and sub division, namely under Speduln there appear three dashes separating him from Brigadefuehrer Jost. This is identified under him with the commanders of the counries of Estonia, Latvia Lithuania and White Ruthenia.
THE PRESIDENT:Has this document been translated and will it be introduced as an exhibit?
MR. GLANCY:It has been translated, Your Honor. It is being distributed, and I am offering this copy for the archives of the Court.
THE PRESIDENT:Very well.
MR. GLANCY:It is Document NO-5156 and will be offered now as Prosecution's Exhibit 178.
THE PRESIDENT:Mr. Glancy, this might be a good point at which to suspend for the morning recess.
MR. GLANCY:Thank you sir.
THE PRESIDENT:The Tribunal will now be in recess.
( A recess was taken.)
THE MARSHAL:The Tribunal is again in session.
THE PRESIDENT:Mr. Ferencz, before you begin your cross-examination the Tribunal will announce that we will recess today at 12:15 instead of 12:30, and then reconvene at 2:15. You may proceed. BY MR. FERENCZ:
Q.Defendant Jost, there are a few points I would like to go over with you again in order to clarify some of the statements you have made. You have stated that on the 29th of March, 1942, you became fully aware of the Hitler order which meant the killing of defenseless people, is that correct?
A.May I first say something about a document which was previously submitted?
Q.Just a moment. If you please, I will ask you the questions in a very specific way, and I would appreciate it if you would speak up and answer the questions briefly and concisely and to the point. We will return to the document where you left off, and at that time you will be able to give as full an explanation as you care to make. Now, I ask you again, is it correct that on the 29th of March, 1942, you became aware of the Hitler order to kill defenseless people?
A.At the latest, at that day, yes.
Q.Specifically, who told you about this order?
A.I already said the former adjutant of my predecessor Stahlecker told me about the existence of this order, without being able to show it to me in a written form because it did not exist in a written form.
Q.And he gave it to you also as an order for you to carry out, is that correct?
A.No, he could not do that as an adjutant, of course.
Q.You mean he just passed the order on in a conversational way and said, "Here, you are arriving as commander of a unit, let me tell you about this order just for conversation, not for you to carry it out," is that what you are trying to imply?
A.No, An adjutant does not have the power to tell me to carry out an order.
Q.But he was passing on an order from Hitler. Was he telling you about it saving, "This is a Hitler order," just so you would be aware of it in a conversational way, or so you would know what your duties were to be?
A.He merely informed me about it upon my request to give me the Einsatzkommando orders, which he spoke about. He did not show it to me in a written form. It was made known to the Einsatzgruppe chief before an assignment was given to him.
Q.I realize it was met in a written form, but when an adjutant tells you that Hitler has ordered what defenseless women and children will be shot, don't you interpret that as telling you that you are to continue to carry out that order?
A.I already said that an adjutant does not have the possibility of telling a superior to carry out an order.
Q.What did you do immediately upon hearing this order?
A.I called up Berlin and tried to get in touch which Heydrich.
Q.Did you get in touch with Heydrich?
A.No, he was not there; he was on the road.
Q.What did you do after that?
A.About two days later I decided to go to Berlin In order to clarify the situation, and at that moment Heydrich, by superior, arrived in person.
Q.Why did you want to clarify the situation, was it because you were not clear as to exactly who was to be killed or was it you didn't believe that Hitler had given such an order? Why was it that you decided to call Heydrich or to go to Berlin?
A.In order to try, to have my assignment revoked.
Q.You have heard the Defendants Ohlendorf and Neumann testify from the stand that it would have been impossible or cut of the question to try to have this order revoked, have you not?
AYes, I have heard that.
QYou tell us now that they were wrong in that statement, is that correct?
ANo, I said, that I wanted to have my assignment revoked.
QBut Naumann and Ohlendorf have said it was impossible or out of the question to raise such a matter with anybody in Berlin. A Hitler order was not to be questioned. Now you tell us you did go back to question that order. How do you reconcile that with, the statements made by Ohlendorf and Naumann?
AThese are two different matters. I wanted my position to be revoked. About the order, I asked Heydrich whether it could not be revoked for the Reich Commissariat, for there were no Jews; despite the existence of the order and despite the fact that the territory was under the domination of the Germans there were Jews and so I asked them whether this order could not be revoked for that area.
QIn other words, you did go back and attempt to revoke a Hitler order, is that correct?
ANo, I personally could not revoke it, but I could ask -
QDid you try to revoke the Hitler order with the authorities in Berlin?
A Yes, when Heydrich visited in Riga, I asked him whether it could not be revoked for this area.
QJust a content. We are back in Berlin. You said you went back to Berlin when you heard about the order in order to try to have it changed or to have it changed insofar as it affected you. Now I ask you just to clarify that statement, did you or did you net try to have the order revoked while you were in Berlin?
AI was not in Berlin at all. I wanted to go to Berlin, but then Heydrich case to Riga and in Riga the conversation took place. The trip to Berlin never took place, because Heydrich arrived in Riga on surprise.
QWell, when Heydrich arrived in Riga -- Let me say it this way: When you got to Riga, you tried to call Heydrich by telephone and he was not there.
A few days later he arrived in Riga at which time you tried to get him to revoke the order, is that correct?
A I asked him whether it wasn't possible to have this order revoked for the Eastern Territories.
QWhy did you do that?
ABecause I did not want to see that further executions would be carried out on the basis of this order that the reasoning Jews be killed.
QIn other words, you thought that an order from Hitler should not be carried out when it was an order involving the killing of defenseless people, is that correct?
AMay I have the question repeated.?
QThe question is: Since you told Heydrich that you didn't want the order to be carried out, to have it revoked at least for your area, didn't you then, in effect, tell him that a Hitler Order was wrong and should not be carried out?
ANo, I did not tell him that. I merely asked him whether the order could not be revoked.
QI am asking you why did you do that? Did you think the Hitler Order was wrong to kill defenseless people or did you think it was too difficult to carry out, or did you think now you should use those people as laborers? What was the motive behind your trying to have a Hitler Order revoked?
ABecause I considered the carrying out of this order as a great misfortune.
QWhat do you mean by misfortune? Do you think it was wrong to carry out this order? Did you think it was not necessary for the security of the Reich?
AI think that if I say the carrying out of this order is a terrible immeasurable misfortune for the victims, that that will explain matters,
QEveryone, I think, recognizes that it is terrible for the victims to be killed, but Hitler considered it necessary for the security of the Reich and Ohlendorf and Neumann have explained that it was necessary to kill children, because the future security of the Reich would be endangered.
Therefore, it was correct to have such an order and to carry out such an order. Do you agree with that reasoning?
A I did not hear the reasons of Neumann and I do net remember Ohlendorf's reasons. I personally had the feeling of what had happened or what could happen - and this feeling overwhelmed me.
QYou are not answering the question. You are an attorney, are you not?
A I was one.
QWell, please answer the question. Do you agree with the reasoning that defenseless people, Jews, particularly, should be shot or should have been shot to assure the security of the Reich?
AIt was only a matter of a question of whether the order which was existing could be carried out humanly. The order exited and it was binding to everyone, with all the consequences of such an order of the Chief of State. Thinking about the details whatever it was necessary, etc., I don't think that one could make this analysis in detail in such a spiritual state of mind.
QThat is, you say that you could not make this analysis in detail in such a spiritual state of mind you stated you objected to this order. You went to Heydrich and you said you wanted to have the order revoked. You must have thought about the order. I just want to know what was in your mind, for what reasons you wanted to have it revoked. Did you think the order was correct? Did you think it was too difficult to carry out? Did you think it was wrong? What did you have in mind when you went to Heydrich to revoke the order?
AI certainly considered it wrong.
QHow, just a moment. You say, then, that you thought the Hitler order was a wrong order, is that correct?
AIt was not right. no, I did not consider it as right, I could not bring myself to think it was right.
QVery well, then did you mention to Heydrich that you thought the order was wrong?
AI did not understand the question.
QYou say that you thought this order was wrong, or as you put it, you did not think it was correct, which was the same thing. Did you mention this to Heydrich?
AI told Heydrich two sentences First, whether the possibility on did not exist to have the order revoked for the Eastland; and the second sentence, which contained my personal opinion. He had known me for eight years and I thought I had to tell him that I could not imagine how I was to carry out such types of measures. That is the content of my explanation in two sentences.
QYou did not tell him - Proceed.
AThe first sentence shows that I objected to this order. Otherwise, I would not have asked for its revocation. The second sentence shows, my personal human attitude.
QYou did not tell Heydrich that you thought the order was morally wrong, did you?
AIf I already asked him that the order he revoked, I think this was sufficient in the situation, for it was a matter of being successful and asking and not the formulation in detail, and one could not think about for hours, years and months previously, but one had to make it right at the moment.
QHow long did it take you to reach the conclusion that this was morally wrong?
AMy objection against this order was there right from the moment when I got it.
QIn other words, you immediately felt this was a morally wrong order, even though it came from Hitler, is that correct?
AThe question about morality has been asked several times here already. Here it is only the question whether such an order given by the Chief of State is legal. The next question, what can one do against such an order, or how can one express one's opinion, or what can one do about such an order for having it revoked; and there is a further question whether one can carry it out, for there are many things in this world which are absolutely legal, which are terrible in carrying them out, but that doesn't change the legality, but if I am prepared to say other things which are not pleasant either, so, for instance, the Potsdam Agreement is absolutely legal there can be no doubt about it ....
QI don't like to interrupt, but, perhaps, will you just state your point? What is the point you are trying to make with your answer?
AThe question of legality that the order was given by the Chief of State.
QI didn't raise the question of legality at all. I asked you
AYou asked me about the morality so I said that this question of morality is connected with the fact of whether the order was given by the Chief of State and therefore is legal.
QYou stated that at the moment you received the order you were repulsed by it. I thought I understood you to say earlier that you thought such an order was wrong. Are you now saying that you thought it was legally wrong? That is why you were repulsed by it, though morally you thought it was correct and necessary?
AI can neither say that it was moral or immoral, but the order existed and was there and I thought it impossible of execution and as I expressed it yesterday, I thought there were enough people who would do something against this order, and see that it was revoked.
QWhy was it impossible of execution? Some of the other defendants have explained how they executed the order. Why do you say it was impossible of execution?
AWhen I received the order later on to give special treatment to certain groups, I was not able to pass on this order. I just was not in a position to do so.
QYou mean you were too work to carry on and pass on this order?
AIf I had been weak and soft, I would have passed it on. I think this needs tremendous strength not to pass this order on.
QBut why didn't you pass the order on? That is the point I am trying to raise. Did you think it was morally wrong and did you think it was physically impossible? What was the reason why you refused to pass or an order from Hitler?
AI said yesterday that the description of what did happen as the result of the carrying out of the order would be terrible for many thousands of people and that this over whelmed me so much that I just could not pass on the order. If you can imagine such a situation - I don't know whether it can be reconstructed by a third person, at least this was sufficient for me, and I would like to add this: I looked at the problem from a historical point of view and I locked for examples in history where another things the First World War. when Monkey threw out the Armenians for military security and transported then to the Sinai desert and thereby killed 2,000,000 Armenians in a terrible way. This was an extermination of population and if you tell me this was more considered, I would like only to say by this example that I looked into this situation from all sorts of views and considered it.
QIs it correct to say that you refused to pass on the order because you thought it morally wrong?
AYes, I have given my statement. It isn't possible today, after 51 years , to give a detailed analysis of the feelings and thoughts.
QThen you refused to give a moral judgment on the question of whether it is right or wrong, or whether it was right or wrong to kill defenseless people?
AI certainly did not consider it correct and was willing to do everything to see that the order was revoked. More than that I could not do.
QWell, you certainly did not consider it correct. Let's pass on.
THE PRESIDENT:Mr. Ferencz, just as a matter of chronology, I would like to know when he received the written order. Witness, you learned of the order orally on March 29, 1942. When did you receive the written order?
THE WITNESS:The end of April or beginning of May.
THE PRESIDENT:And between the end of March and the beginning of May on what orders were you operating?
THE WITNESS:I then was not operating at all, but the explanation of Heydrich "that may be we will come to a resettlement" aroused the hope in me that actually a change might he possible. That I was wrong in believing in this hope shook me, very much, because, after all, I did get the order later, for I had not counted on such a possibility.
THE PRESIDENT:You May proceed, Mr. Ferencz. BY MR. FERENCZ:
QWhat did Heydrich say to you, when you asked to have the order revoked?
A "Perhaps we will come to a resettlement."
QYou mean Heydrich thought he could change the situation and modify a Hitler order?
AI could not survey that at the time for I did not know in what manner Heydrich could speak with Hitler about this matter. I did not know what the two men did discuss between each other. I absolutely could not survey that.
QWhat did you judge from his answer?
AI beg your pardon?
QYou say he said they would see if they couldn't change the order or have it revoked, is that correct?