THE PRESIDENT:In accordance with the request made, the defendant Joost will be excused from attendance in court this afternoon, and the proper authorities are directed to see to it that defendant Joost is taken to Room 57, to three o'clock this afternoon.
The Tribunal will be in recess until 1:45.
(A recess was taken until 1345 hours.)
AFTERNOON SESSION ( The hearing reconvened at 1345 hours, 6 January 1948.
)
THE MARSHAL:The Tribunal is again in Session.
Dr. ULMER (Attorney for the Defendant SIX):
Your Honor, so that the closing brief may be finished I had my client excused for this afternoon and I would like to him him excused as well for tomorrow in Romm 55
THE PRESIDENT:In room 55?
DR. ULMER:Tomorrow I would like to have the Defendant Six again so that in room number 55 I may talk about the closing brief with him.
THE PRESIDENT:I understood it was Room 57 in which these conferences were heard.
DR.ULMER: 57 is the entrance and 55 is the room where the discussions take place.
THE PRESIDENT:Very well. The Defendant Six will be excused from attendance in court tomorrow for the purpose indicated by his counsel.
HEINZ SCHUBERT --Resumed CROSS EXAMINATION--Continued BY MR. WALTON:
Q.Mr. Schubert, I was particularly interested in what you said during the morning session about the fact that you inspected, or, rather, you visited the loading site twice, and, if I remember your testimony on this point you stated that there was no disorder.
Also in answer to the President's question, if my memory is correct, you stated that these people at that time did not know the fate which was in store for them.
Am I correct so far?
A.May I have the last sentence again, please?
Q.Certainly. I believe you stated in answer to a question by the President of the T ribunal that one of the reasons in your opinion why there was no disorder was be cause these people who were being loaded on the trucks did not know at that time what their ultimate fate would be.
Am I correct in that?
A.Mr. Prosecutor, I replied to your question, whether during the loading an unrest or disorder occurred, because of these people and I replied to this, "no". The president asked me whether those people already knew at that time that they were going to be shot.
To this question I re plied "no" again, because at that time the people did not yet know the end.
I saw no disorder, therefore.
Q.Did these people hold any conversations with their guards on the trucks that you could see or the people who called the roll, or the German personnel who were standing around?
A.It certainly happened that various people talked through interpreters, yes.
Q.And no one of the German personnel told them at the loading site where they were going, did they?
A.Where they were going to be sent to, they were not told about, as far as I know.
Q.Now, was there any disorder that you could see when the trucks arrived at the execution site?
A.Mr. Prosecutor, in order to be quite correct here I should like to say, disorder in that sense that riots occurred, this never happened.
Of course, when the people arrived at the place of execution and were unloaded there, they were nervous.
Q.Was there any weeping and lamentation among the women and children?
A.During my time I saw neither women nor children, but concerning those men which I did see, I would like to say that among those men, there was a certain amount of unrest, because when they arrived there they could suspect what was going to happen, because they heard, doubtlessly, the firing by the execution squads, but no great unrest really came about, no real disorder.
I would like to say, in view of what happened there, I personally was surprised how calm it was.
It was almost too calm. It was frightening because it was so calm how these people not their fate.
Q.None of these men attempted to escape by leaping to the ground and running when they were unloaded, did they?
A.I did not see anything of the kind, Mr. Prosecutor.
Q.Now, was it known to you the reason why these people were being executed?
A.I did not know why the individuals were being ex ecuted.
It is possible that there were persons among them who, because of some special examination were being executed.
As for me, in general, however, I was certain of one thing, that this was an execution based on the Fuehrer Order.
Q.Did you ever see a written report on this total of 700 to 800 gypsy executions during the normal course of business which came from Kommando 11 B?
A.No, Mr, Prosecutor. I would like to point out something here, if I may.
Today you only talked about gypsies, I think.
In my affidavit I said, or, rather, Mr. Wartenberg worded it, "Russians and Jews who" -- originally it said "member of other nationalities."
This wording seemed rather general to me and I asked Mr. Wartenberg to replace by "Russians and Jews" but surely there were gypsies among them as well.
perhaps even the majority of them.
Q.Then the change should be instead of "gypsies", "Russians, Jews, and Gypsies"?
A.One could add there "gypsies". That would make it quite correct.
Q.Do you know whether or not this instance ever appeared in one of Seibert's reprts to Berlin?
A.I do not remember it and consider it quite impossible.
QWell, weren't executions reported to Berlin?
AIt was reported to Berlin about a certain number during a certain period.
QYes, but you misunderstood my question. Did you ever see a written report of this total of 700 to 800 Russians, Jews, and Gypsies?
ANo, Mr. Prosecutor.
QAnd you don't know of your own knowledge whether this same total was included in one of Seibert's reports or not?
AI cannot say in which of the reports this number was contained. I cannot say that any more.
QNot in which report, but the fact of 700 to 800 was included in the total number of executions performed for the month of December, wasn't it?
ACertainly, I heard of some figure in which these 700 were contained. That is quite possible.
QNow, I believe in your direct testimony you stated that later that same day you met Dr. Braune in the building in which the Head_ quarters of Einsatzgruppe D was and also the Headquarters of Einsatzkommando 11B were.
AYes.
QDid you have any discussion with Dr. Braune about this matter?
AI do not remember any definite discussions, Mr. Prosecutor. I believe that I remember correctly that I saw Dr. Braune during a discussion with Mr. Ohlendorf.
QDid he make any comments on your report to General Ohlendorf?
ANo.
QHe listened to what you had to say, though?
AMr. Prosecutor, however hard I try, I cannot tell you whether Dr. Braune, when I described the events I had seen to Herr Ohlendorf, whether he was present then or whether I saw him after I had reported to Herr Ohlendorf. I cannot tell you that now.
QAfter you reported to Herr Ohlendorf what comment, if any, did he make?
ANothing much was said about this any more and there was nothing much to be said about it.
I think the attitude of my chief at the time showed me that he was quite satisfied with the manner of carrying out which he could personally convince himself of and as it was reported by me to him, inasfar as no objections could be raised.
These things were not discussed any further then.
QDid he tell you that you had done a good job?
AHe did not prasie me at all. Mr. Prosecutor. He did not tell , me anything else either, that he was satisfied with me.
Mr. Prosecutor.
but he did not reproach me either, nor did he have to reproach me.
QNow, Mr. Schubert, let's turn to Document Book III-D, on page 1, both in the German and the English, Exhibit 148.
Now I direct your partiu lar attention to paragraph 2 and the reference to you on page 2 of the German text.
Indicate when you have found your place.
AI have the document and figure 2 in front of me.
QNow, according to this and according to your own statement, your duties included the distribution of official mail when you received it, did they not?
AI believe, Mr. Prosecutor, you are referring to the explanation which starts "The former Obersturmfuhrer Heinz Schubert."
QThat is the sentence and the next sentence that follows it.
AThe next sentence, yes, those two sentences in the Affidavit of Herr Ohlendorf are the most correct from in which one could describe my tasks.
QNow I ask you, didn't your duties include the distribution of official mail when you received it?
A of course, yes.
QDid you open all official mail?
AI certainly cannot say, " all of it," Mr. Prosecutor, but I assume responsibility, of course, for the work in the office where these things were done and I assume the full responsibility for this.
QDid you glance through this official mail after you opened it to see what it contained so that you would know to what person it would have to be delivered for the necessary action?
AThis mail in general was given to the Chief of the Einsatzgruppe or, if he was absent, it was given to his deputy in the staff, Herr Seibert.
QDid Seibert receive any official mail other than pertaining to Department III matters?
AI would not like to limit it to the word in Office III only, because Herr Seibert was in charge of the entire reporting to the Army as well. I cannot limit this to his work as Chief III. Certainly. he also received other reports.
QNow, I believe you testified that, when General Ohlendorf was absent, this official mail went to the desk of Mr. Seibert for action. Did this mail include orders from the RSHA in Berlin?
AYes, in that case, it also included that mail.
QDid it also include orders from the 11th Army?
AYes.
QNow did Mr. Seibert over transmit these orders from either two sources to the kommandos?
AI know nothing about that, Mr. Prosecutor. I don't know any specific case.
QYou filed copies of the orders which went out of the office and according to this affidavit, which is now before you of General Ohlendorf, you took care of the registery so that I assume from this affidavit and from other facts you have testified to that you registered outgoing mail as well as incoming mail, am I not correct in that assumption?
AYes, Mr. Prosecutor.
QWell, how could you register outgoing mail without some description of at least a short or a sentence description of what the contents were and where it was going?
AMr. Prosecutor, the outgoing mail in the office was dealt with in the some manner as the incoming mail, which was entered in the mail diary in form ofa brief summary, but now after more than six years I am no longer able to remember any specific case.
QNo, I didn't ask you for a specific case. What I want to know is if when General Ohlendorf was away orders came in which went to the desk of Mr. Seibert, if Mr. Seibert took action or if it was necessary for him to transmit that order to a kommando, through the normal chain of command, wouldn't he forward those letters and wouldn't you register the outgoing mail forwarding those orders to the kommando?
DR.GAWLIK (ATTORNEY FOR THE DEFENDANTS NAUMAN AND SEIBERT): Your Honor, I,object to this question.
The witness has already answered to the question, that he does not know.
The witness has no sufficient knowledge on this.
Anything he might say now would be assumptions, or he would just gess.
If the witness does not know, he cannot answer this question.
THE PRESIDENT:Of course, and "I don't know answer" does not exclude inquiry and probing.
That is the purpose of cross-examination.
one could close the door on cross-examination by merely saying, "I don't know."
The cross-examiner has the right to quizz to determine if he merely does not know, so that a certain amount of latitude is permiss ible in order to ascertain whether the defendant's answer of ignorance is really based upon fact.
DR. GAWLIK:Yes, I realize that, Your Honor. In that case the prosecutor would have to tell the witness some facts or give him some evidence, but he is only repeating his question.
It is the same question he has already put and the witness has answered, "I don't know."
He would have to prove that he did know, in order to reply to this question.
THE PRESIDENT:That is what Mr. Walton is trying to do, I presume.
MR. WALTON:Your Honor, shall I refresh your memory. The answer that I got the first time I asked that question was that after six years he could remember no specific instances.
My following question was directed primarily at the practice, the way of doing business in that office.
I am not interested in knowing what these orders to these kommandos contained or the details of it. I merely asked this witness and I think I am entitled to an answer.
THE PRESIDENT:Well, put the specific question now and Dr. Gawlik will have the opportunity to object, Witness, please do not answer this question until you observe whether Dr. Gawlik wishes to interpose an objection.
MR. WALTON:When this official mail from either Berlin or from the 11th Army contained a matter which should be brought to the attention of one or more sub-units, would Mr. Seibert dispatch the contents of this order, or his own directive, or some comment, to one or more of the commandos?
DR. GAWLIK:Your Honor, I object to the question because it is hypothetical. If he asked whether the witness know of some incidents of some case,dependent on the defendant Seibert, to that I have no objection, but whether he would have done it, for that the defendant Seibert can not be punished for what he thought he might have done or for what he would have done, but what he had done in fact. If the witness testified to what the defendant Seibert did do in somecases, or what he dispatched in some case, I have no objection that question.
THE PRESIDENT:The present defendant, the witness involved, occupied the same office as did the defendant Seibert, soo therefore----
THE INTERPRETER:Will you please repeat that, Your Honor.
THE PREISDENT:The witness was in the same office with Seibert, so, therefore, it is not unreasonable to ask him what Seibert did. Now whether the witness actually knows what Seibert did, or not, is only within his knowledge, and the only way he can find out as to put the question to him, and if he knows then he will tell us. If he does not know naturally he can not tell us, and the only way to find out is to ask him, which Mr. Walton has done.
DR. GAWLIK:Yes, I agree to that, but not to the question what he would have done. To the question of what Seibert did, or to the question as put by Your Honor, I agree.
THE PRESIDENT:Yes. I presume the interpretation of the question was, what was the custom, what was the practice of the office, what would he have done meaning in the usual routine and course of affairs of what Seibert had done, what did he do, that is what was meant, or by any one else in the same position. What was the routine of the office; communications coming in from the Army, how were they routed, and Mr. Walton showed that form in the question which when interpreted really is not objectionable.
Very well, witness, if you remember now the question, you may answer it.
THE WITNESS:I think I understand it correctly, and I would like to answer it as,to that effect:
During the absence of Herr Ohlendorf in the group staff, Herr Seibert was the deputy for the group staff; then Herr Seibert dispatched reports to the commandos as well.
MR. WALTON:Thank you, Mr. Schubert.
BY MR. WALTON:
QDid you over see any orders or correspondance concerning the screening teams set up in the prisoner of war camps to screen out prisoners of war, communist functionaries, etc.
?
ANo, Mr. Prosecutor, certainly not.
QDid you ever see any reports come into the office from these screening teams?
ANo, neither that, Mr. Prosecutor.
QDid you ever make any statement about your duties with the Einsatzgruppe-D at Oberursel?
AMay I have the question repeated please?
QDid you ever make any statement, or sign an affidavit, with reference to your own particular duties in Einsatzgruppe-D while you were in Oberursel?
AIn Oberursel I signed affidavits, yes, but at the moment I can not recall all the things which happened two years ago.
QDid you ever make any statement about the difficulties General Ohlendorf had to settle the question about whether the Krimchakens or the Karaimians were Jews?
AI think if I remember correctly, Mr. Prosecutor, in the Fall of 1945 I made a statement which contained about the following:
When occupying the Crimea the Einsatzgruppe came across the problem how certain Ethnic groups were to be treated.
Thos were the Krimchaks and the Karai mians.
The principal question, or the basic question which had to be decided was whether these groups of persons were to be treated as Jews according to the Fuehrer Order, or not.
At the time sofar as I can recall I testified that at the time Herr Ohlendorf did not want to and could not define this order himself, and, therefore, a decision from Berlin had to be applied for by him. I think that is about the statement I made at the time.
QI congratulate you on your most excellent memory. However, there is one point which appears in the affidavit that you omitted at this time, almost two years later, or a year and a half later. "Therefore the decision --" I shall read it to you and I am quoting now from your own affidavit: "Therefore, the decision was put up to the Reichsicherheits Hamptamt, Berlin, whereby the basic question was whether the Krimchaks or the Karaimians, or one of these two groups were to be considered Jews or not. In case - I am still quoting "In case that they would have been considered Jews, they would have come under the extermination regulations." Now this is only the point that you omitted, and I am still quoting: "Whether any decision or what decision arrived from Berlin is unknown to me. At that time I was absent from the Einsatzgruppe for some time in order to carry out these seizures of Russian POWs of Tartarian nationality at Nikolajew." Did you make that last statement?
AMr. Prosecutor, I certainly didn't draw that conclusion, and I should like to look at my affidavit now. I am quite certain that I said I was absent because repeatedly I was on journeys in connection with recruiting Tartars as volunteers in the POW camps at Nikolajew. I don't know whether I also said in a few villages in the Crimea, and, if I may add now, I recall quite clearly the other explanations that were also made, Mr. Prosecutor, just quoted, and I do not intend to leave them out, but I merely thought I had to say this in order to clarify the matters we are talking about here, but as to the seizure of POWs of Tartarian orign, I could never had said that. This could have only been the recruiting of Tartar volunteers, and I am quite certain I said nothing else, Mr. Prosecutor.
QThat is what appeared in the alleged affidavit, and I asked you the question and you have given an explanation. That is what I wanted. Now, did you ever make any statement concerning the commanding Officer of Sondercommando X_B, one, Alois Persterer?
APesterer, yes, and sofar as a commanding officer Pesterer is concerned, I made a statement.
QDid you ever make this statement and I quote: "P" - the initial alluding to Pesterer, "Who always inclined a great deal towards great independance had always the best understanding with the local Wherm cht, which could not be said of the Einsatzgruppe as a whole.
In addition Pesterer - " except you had the initial "P", "-was a great friend of alcohol who had always worried Ohlendorf a little, obviously from fear of inconsiderations by Pesterer." Did you make that statement --- or I shall withdraw that question, and ask you this one. Is that statement true?
AIn the manner as it was quoted now I certainly did not say it in just those words. I said, that after Mr. Wartenberg asked me about Pesterer's personality ---
QI withdraw that question, Mr. Schubert. I will ask you if that statement that I have just read to you is essentially ture. allowing for some differences in the translation?
AI do not want to answer this yes or no. I should like to make a brief statement. It is correct that Commando Leader presterer had much better relations with the local Wehrmacht than the Group-staff had. It is correct that Commando Leader Persterer had much better relations with the local Wehrmacht than the Group-staff had. It is correct that Herr Ohlendorf was not very enthusiastic about Herr Persterer during some meetings where the gentlemen of the Army took part in, when he took a little more alcohol than he should have done.
QDo you know of your own knowledge whether the co-defendant Ruehl ever was deputy to Persterer?
ANo, Mr. Proseuctor, the co-defendant Ruehl did not work during the time I worked in the office group, but I would like to add, that throughout the time of my service I never heard that Herr Ruehl ever was the deputy of Persterer.
THE PRESIDENT:Mr. Walton, do you intend to introduce this document which you are reading from now into evidence?
MR. WALTON:Your Honor, please, this document is now being searched for.
I only have the English translation, This is a document which was taken from the files of the Interrogation Center in Oberursel.
I cannot introduce it until such time as I receive from them either a signed c py by the defendant Schubert, or the original.
However, I believe that I am not precluded from asking him about it since I believe that the source of this document was from the defendant Ruehl --- Schubert--I am apologizing.
THE PRESIDENT:There is no question about the appropriateness and correctness and the relevency of your cross examination.
There was a discussion between you and the witness regarding Russian prisoners of war, but I don't know whether it ended with the meeting of the minds, or just what was said.
As I recall your quotation you used the word "seized" certain Russian prisoners of war, and the witness used the word "Recruiting," and of course, there is a vast difference between those two concepts.
MR. WALTON:I assume from my point of view he denied the statement as read to him, and that he substituted as to that fact regardless of what this document said, that he did recruit Tartars.
THE PRESIDENT:I see. Very well.
DR. KOESSL:Your Honor I merely would like to ask that on re examination I might have a copy of this affidavit for the redirect examina tion, because the testimony of the witness concerning the prisoners of war is very important as part of the conten ts of the affidavit.
The witness clarified this by saying merely recruiting of volunteers for the voluntary army, but I am not quite certain what actually is contained in the affidavit, therefore, I would like to ask that I be given a copy of this affidavit for the redirect examination.
THE PRESIDENT:Well, Dr. Koessl, you can not be interested or concerned unless the affidavit is introduced in evidence, and it has not been intro duced in evidence.
DR. KOESSL:Your Honor, I am only interested in finding out whether the testimony of the witness here on the witness stand really is contradictory to the contents of the affidavit, or, whether the contents of the affidavit contains exactly what the witness now said on the witness stand.
I assume so, but in view of the conditions at the time, then I am not quite certain that it is quite right.
THE PRESIDENT:Well, Dr. Koessl, Mr. Walton has put certain questions and the witness has answered those questions.
Now in the absence of the document, it is certain that the witness answers have just as much probative value as the Prosecutor's questions, because Mr. Walton's questions are not evidence so Mr. Walton is really bound by the defendant's answers, unless he can show something to the contrary, or can argue logically that the answers do not conform to what is reasonably to be believed.
DR. KOESSL:Yes, I am only concerned with the contents of the affidavit, the translation of what Mr. Walton read is not sufficient for me to prove that it is the actual contents in the German affidavit.
Mr. Walton said that he merely had the English translation of the German affidavit.
It is, therefore, possible first of all that mistakes occurred in the translation from German into English, and secondly, mistake in the transla tion of the text now read.
THE PRESIDENT:Well, Dr. Koessl, you were asking for something that Mr. Walton has already promised, about which the Tribunal has indicated you are entitled to if and when this thing comes to light, and, if it does not come to light, then there is nothing to debate.
MR. WALTON:Your Honor, if that does not come to light, his answer stands, or comes forth when I read the statement and asked if it was true, and I accept his answer, and I am bound by it, as you very carefully pointed out.
I see no reason for my surrender of my copy of a copy to Dr. Koessl at this time.
I would like a ruling on that if the Court please.
THE PRESIDENT:Dr. Koessl would you want to submit this affidavit yourself.
DR. KOESSL:No, Your Honor, I don't need it for that. I merely need it in order to convince myself during the redirect examination whether the cross examination was conducted correctly insofar as this matter was concerned.
If the Prosecution accepts the reply of the witness, I agree to it.
THE PRESIDENT:Well, you have the right on your redirect examination to clarify anything which has remained obscure and that the witness has brought out on cross examination.
MR. WALTON:Just one final word. I accept, Your Honor, the statement of the witness as being true to the best of his knowledge and belief that he recruited Tartar prisoners.
I shall act on that in my brief and in the closing statement and in any action I take on this the answer, and I dis believe because of translation difficulties this statement as I read it.
Maybe that will satisfy Dr. Koessl.
THE PRESIDENT:I think with that statement, Dr. Koessl, you can cons Mr. Walton as assistant defense counsel on this particular point.
Dr. KOESSL: For the time being I am satisfied.
THE PRESIDENT:Very well.
THE WITNESS:May I say something about this please?
MR. WALTON:Yes.
THE WITNESS:I am sorry that I am not quite satisfied as yet.
THE PRESIDENT:Well, it would be too much to expect that everybody would be satisfied.
THE WITNESS:Your Honor, Mr. Walton just said that I testified that I dealt with recruiting matters.
I am quite certain that this is not contained in my affidavit, and I would like to correct it.
I believe that there is an indication of saying that I was absent because during the time insofar as recruiting of Tartar volunteers are concerned, I was working in POWs camps in Nikolajew.
I was on my way to it but never was I personally in charge of the recruiting, and certainly I never made such a statement.
THE PRESIDENT:Very well, that statement may stand.
BY MR. WALTON:
Q.Now I believe you testified this morning that you go some office copies of the reports from Mr. Seibert to file, and that these reports contained some information concerning executions.
Nearly every report you got from Seibert had Information concerning executions, didn't it?
A. "Nearly every one" is going rather too far, Mr. Prosecutor. I would like to re-word this.
A part of these reports contained such communication.
Q.What percent of his reports would you estimate referred in some way to executions?
A.I can not tell you a percentage and I don't think it matters.
I can only say that the radio reports which were made out every two weeks to the Reich Security Main Office, in very many cases contained communications ab out executions which had been carried out.
I can further say that in other written reports as well such statements were contained, but to a much smaller extent, and much less often than in the radio reports.
Q.Do you want to make an estimate as to the number of radio reports that referred to executions, would you say it was fifty percent?
A.Mr. Prosecutor, it does not depend on my good will or good intentions but I simply think I am unable to make such statement.
I would be very grateful and glad if I could give a more exact statement in order to please you better, but I am afraid I can not say any more.
Q.Well, you were generally acquanited with what went on in head quarters, were you not?
A.In general, yes.
Q.Do you know what assignments were given to members of the staff other than yourself?
A.In general, the staff of officers of the staff I knew, of course.
Q.Did the Group-Physician ever have to inspect an execution by a gas-van?
A.I know nothing about gas vans.
THE INTERPRETER:There was a mistake in the translation, as was given "gas chambers" rather than "Gas-wagon" or gas-car.
THE PRESIDENT:Well, that is an important distinction between gasvan and gas chamber. So the witness may understand, you are referring to gas-wagons? BY MR. WALTON:
QDo you understand that I meant "gas-wagon" instead of gas chambers
A.Yes, I think you are talking about gas-van, that is right. I can not say what definite orders the physician of the group received concerning this. I know nothing about that.
QYou were at the Einsatzgruppe Headquarters in Simferopol, were you not?
AYes, Mr. Prosecutor.
QAnd it's been testified to repeatedly from that witness stand that for a time there was at least one gas van in the courtyard at Simferopol.
AYes.
QDid you ever dispatch this van anywhere?
AI certainly never dispatched it anywhere.
QDid you ever see any requests come in from a Kommando to send a gas van there?
ANo, I don't know of any.
QDid you ever see any orders issued by anyone in the Group Headquarters dispatching the van from the courtyard to a Kommando territory?
ANo, Mr. Prosecutor.
QDid you ever learn who besides yourself ever inspected executions?
ADuring the executions in Simferopol, or in general?
QIn general, any executions. Do you know of anybody in the group staff who was given the special assignment to inspect executions besides yourself?
AMr. Prosecutor, this is a question of great consequence which I have to answer here, I myself was never present when other members of the group staff were carrying out such inspections. Therefore, I cannot say who, when, and where the inspections were made.
QYou misunderstood my question. Did you ever learn - did you ever have any knowledge - did you ever hear it generally talked about did it ever come to your attention that some one besides yourself in the group staff inspected executions?
AIn as far as the captain of the Regular Police Gabel in concerned I know definitely that he carried out such inspections.