“Even in captivity, the Soviet soldier—however harmless he may
appear outwardly—will seize every occasion to show his hatred
for all that is German. We must reckon with the fact that the
prisoners will have received suitable instructions on their
behavior if captured and imprisoned.”
My colleague, Colonel Pokrovsky, has already denounced the absurdity of
these so-called special instructions and I therefore do not consider it
necessary to dwell on this passage. I continue:
“It is therefore absolutely essential, when dealing with them,
to exercise the greatest caution and prudence, and to nourish
the deepest suspicions.”
The following directives were issued to the guard on watch over the
Soviet prisoners:
Firstly—ruthless action at the slightest sign of resistance or
disobedience. Merciless use of firearms to break any resistance.
Escaping prisoners to be shot at immediately, without challenge, with
firm intent to hit. “Without challenge” is characteristic.
I omit the two following paragraphs and quote the second part, Point 3
of the memorandum, which Your Honors will find on Page 153, Paragraph 2
of the document book. From this Subparagraph I quote three lines:
“Kindness is out of place, even when dealing with willing and
obedient prisoners of war. They will ascribe it to weakness and
draw their own conclusions from your kindness.”
I omit Point 4 and end my quotation from this document on Subparagraph 5
of the memorandum—Your Honors will find this passage on Page 153, last
paragraph of the document book:
“5. Never must the apparent inoffensiveness of the Bolshevik
prisoner of war tempt you to deviate from the above-mentioned
instructions.”
I have, a very short time ago, quoted Point 4 of the memorandum for the
industrial, regarding the utilization of the work of Soviet prisoners.
It stated that the requirements respecting billets for the Soviet
captives should, from the viewpoint of living facilities, be of a
minimum nature.
The meaning of this will be clear to Your Honors from a report of the
Chief of Army Equipment and Commander of the Reserve Army, dated 17
October 1941, addressed to the acting corps commanders and to the
administrative authorities of military districts.
I submit this document as Exhibit Number USSR-422 (Document Number
USSR-422). This too is presented in the original and I beg that it be
entered as documentary evidence into the record. It was issued in Berlin
and dated as far back as 17 October 1941. I quote one paragraph of the
text. Your Honors will find this paragraph on Page 154 of the document
book. I begin the quotation:
“Subject: Quarters for Soviet prisoners of war.
“At a conference held on 19 September 1941 at the office of the
Chief of Army Equipment and Commander of the Reserve Army (V-6),
it was decided that by the construction of several tiers of
superimposed wooden bunks in lieu of bedsteads, a RAD”—Reich
Labor Service—“barrack for 150 prisoners could be built
according to specifications for Soviet prisoners’ permanent
barracks to hold 840 prisoners in permanent billets.”
I shall not quote the remainder of this document since I consider this
paragraph sufficiently clear in itself.
I request the Tribunal to accept two documents in evidence which are
also presented in the original. They testify to the fact that the
extermination, in the camp, of Soviet prisoners of war was practiced for
political reasons. It was the practice of murder.
I shall first submit, as Exhibit Number USSR-432 (Document Number
USSR-432), an order addressed to Camp Number 60. The document is in the
original and I request that it be added to the record as evidence. Your
Honors will find the paragraph which I wish to quote on Page 155 of the
document book.
THE PRESIDENT: The Tribunal will adjourn now.
[_A recess was taken._]
MR. COUNSELLOR SMIRNOV: I shall quote one passage only of the document
already submitted. The passage which I ask the permission of the
Tribunal to read is on Page 155. Point 4 of the order runs as follows:
“Behavior at the shooting or serious wounding of a prisoner of
war. (Legal Officer)
“Every case of shooting or serious wounding of a prisoner of war
should be reported as a special occurrence. If you are dealing
with British, French, Belgian, or American prisoners of war you
should also act in accordance with instructions of the OKW, Code
Number F-24.”
This order was dated 2 August 1943.
But on 5 November 1943 another order followed, which changed even this
arrangement where the Soviet prisoners of war were concerned. I request
the Tribunal to accept in evidence the document which I am submitting as
Number 433, pertaining to Camp Number 86. From this document I quote one
paragraph only, that is, Paragraph 12:
“The shooting of Soviet prisoners of war. (Legal Officer)
“The shooting of Soviet prisoners of war and other fatal
accidents need no longer be reported by phone to the Prisoner of
War Commander as an ‘unusual occurrence.’”
In certain cases, the Supreme Command of the German Armed Forces agreed
to the payment of a miserably small sum for the work done by the
prisoners of war, but here too the Soviet prisoners of war were placed
in conditions which were twice as bad as those of the prisoners of other
nationalities.
To confirm this, I request the Tribunal to accept in evidence a
directive of the Supreme Command of the German Armed Forces dated 1
March 1944. The document will be submitted as Exhibit Number USSR-427
(Document Number USSR-427).
I request that the Tribunal attach it as evidence to the documentation
of the case. From this document I shall quote two sentences only. These
sentences Your Honors will find on Page 274 of the document book:
“Prisoners of war working all day will receive for one full
working day the following basic salary: Non-Soviet prisoners of
war, RM 0.70; Soviet prisoners of war, RM 0.35.”
The second sentence is at the end of the document, on Page 275 of the
document book, last paragraph:
“The minimum daily wage for non-Soviet prisoners will consist of
0.20 RM, and 0.10 for Soviet prisoners of war.”
Here I end my quotation from this document.
If other prisoners received from the German fascist murderers the right
to a few breaths of fresh air a day, the Soviet people were deprived of
even this privilege. I request the Tribunal to accept in evidence an
original order, Exhibit Number USSR-424 (Document Number USSR-424),
referring to Camp Number 44. I request the permission of the Tribunal to
quote one sentence from Paragraph 7, entitled, “Walks for Prisoners of
War.” I begin to quote:
“In special cases, when prisoners of war, engaged on work, have
their living quarters at the same place where they work and
therefore have no access to the open air, they should be allowed
to be taken out into the fresh air in order to maintain their
working strength.”
I further request the Tribunal to accept as evidence the original order
addressed to Camp Number 46. This document is submitted as Exhibit
Number USSR-425 (Document Number USSR-425). I would remind the Tribunal
that the directive ruling the preceding order, “Walks for Prisoners of
War,” was listed under Point 7.
I cite one sentence from Point 10 of Order Number 46. This Point 10 is
also entitled, “Walks for Prisoners of War,” and the basis for this
point is Order Number 1259, Part 5, of the Chief of the Section for
Prisoner-of-War Affairs, dated 2 June 1943. I quote one sentence:
“In complement to Point 7 of the order addressed to Camp Number
44, dated 8 June 1943, it is explained that the order does not
apply to Soviet prisoners of war.”
I further request the Tribunal to accept in evidence the original
request of the labor office of Mährisch-Schönberg. This request concerns
the utilization of prisoners of war for nonagricultural work. I quote
two sentences from this document. The passage which I have asked
permission to quote is on Page 160 of the document book. I begin the
quotation:
“The replacement of 104 English prisoners of war from Labor
Brigade for Prisoners of War E 351, currently employed in the
Heinrichsthal paper mills, by 160 Soviet prisoners of war, has
been rendered necessary by the labor shortage which has
developed in this factory. An additional allocation of English
prisoners, to raise the number to the required figure of 160, is
impossible, since after the last check of camp conditions,
undertaken a few months ago by competent Wehrmacht authorities,
it was decided that billets in the camp were only sufficient for
104 English prisoners of war, whereas the same space would
accommodate 160 Russian prisoners of war without any
difficulties whatsoever.”
I request Your Honors’ permission to quote one more document, namely
Directive Number 8 regarding this camp, dated 7 May 1942. It is
entitled, “The Utilization of Soviet Prisoners of War for Work.”
I submit this document in the original as Exhibit Number USSR-426
(Document Number USSR-426), and I request that it be added as evidence
to the record of the Trial.
I quote the section entitled, “Measures for the restoration of full
working capacities.” I think that the boundless cynicism and the cruelty
of this document require no further comment:
“The Soviet prisoners of war are, almost without exception, in a
state of acute malnutrition, which currently renders them unfit
for a normal output of work.”
The General Staff of the German Armed Forces was particularly concerned
over two questions: Firstly, with blankets for Soviet prisoners of war,
and secondly, in what form the mercilessly murdered Soviet victims of
the concentration camps should be buried. Both questions found their
solution in one document.
I submit it to the Tribunal as Exhibit Number USSR-429 (Document Number
USSR-429), and request that it be added as evidence to the record. Your
Honors will find it on Page 162 of the document book. This is a
directive of the 8th Military District, dated 28 October 1941. I begin
the quotation:
“Re: Soviet Russian prisoners of war. The following arrangements
were decided during a conference of the OKW:
“1. Blankets. The Soviet Russians will receive paper blankets,
which they will have to manufacture themselves, in the form of
quilts, from paper tissue, filled with crumpled paper and
similar material. The material will be procured by the OKW.”
The second part, as Your Honors will notice, is as follows—the heading
reads, “Burial of Soviet Russians”:
“Soviet prisoners of war are to be buried naked, without a
coffin, wrapped in packing paper. Coffins will be used only for
transports. In the labor commands the burial will be attended to
by the competent authorities. Burial expenses will be met by the
competent M-Stalag for prisoners of war. The stripping of the
bodies will be done by the camp guards. Signed: by order,
Grossekettler.”
But not only the administration of the military district was concerned
with the methods for burying Soviet prisoners of war; the Ministry of
the Interior was also concerned with this question, and an urgent letter
was addressed to the camp specially marked, “Not for publication in the
press, even in excerpts.”
I request the Tribunal to accept this document in evidence as Exhibit
Number USSR-430. The members of the Tribunal can find this passage on
Page 276 of the document book. I quote a few sentences from this fairly
voluminous document—five sentences. I begin to quote:
“For the transport of the bodies (procurement of vehicles)
offices of the Wehrmacht should be contacted. For transportation
and burial a coffin is not to be requested. The bodies should be
completely wrapped up in paper, preferably in oiled paper,
tarpaulin, corrugated paper, or some other suitable material.
Both transportation and burial should be done unostentatiously.
When many corpses come in at the same time, burial should take
place in a common grave. The corpses should be laid at the usual
depth, side by side, not overlapping each other. As a site for
the burial a distant part of the cemetery should be chosen. Any
burial service and any decoration of the graves should be
disallowed.”
I omit the following sentence: “It is necessary to keep expenses as low
as possible.”
But even in the special organizations of German fascism, specially
created for the extermination of human life, the criminals still
continued in their policy of racial and political discrimination.
Actually, this discrimination could mean one thing only, namely, that
one part of the camp prisoners came to their inevitable end, death, more
rapidly than the other part.
And the criminals even tried to make the inevitable end more of a
torment for those of their victims whom they, following the Nazi
man-hating theories, designated as subhumans or considered capable of
active resistance.
I request the permission of the Tribunal to read into the record one
paragraph from a document already submitted as Exhibit Number USSR-415.
This is a report of the Extraordinary State Commission of the Soviet
Union on the “Crimes at Lamsdorf Camp” and the quotation will testify to
the extent of the criminal Hitlerite activities. It concludes the
presentation of evidence regarding this camp. Your Honors will find the
passage in question on Page 146 of the document book, Paragraph 3. I
quote:
“According to the findings of the special commission during the
existence of the Lamsdorf Camp, the Germans tortured to death
more than 100,000 Soviet prisoners of war. Most of these died in
the mines, in the various economic enterprises, or during
transportation back to the camp. Some were crushed to death in
the dugouts, many were killed during the evacuation of the camp.
Forty thousand prisoners of war were tortured to death in the
Lamsdorf Camp proper.”
Mr. President, the Soviet Prosecution begs to present one more witness,
Doctor Kivelisha. He is a physician and his evidence is particularly
important in establishing that there existed a special regime for Soviet
prisoners of war in the camps. The Soviet Prosecution requests your
permission to question this witness.
THE PRESIDENT: Yes, Colonel Smirnov.
[_The witness Kivelisha took the stand._]
THE PRESIDENT: What is your name?
DR. EUGENE ALEXANDROVICH KIVELISHA (Witness): Kivelisha, Eugene
Alexandrovich.
THE PRESIDENT: Will you repeat this oath after me: I, and then state
your name—a citizen of the Union of Soviet Socialist
Republics—summoned as witness in this Trial—do promise and swear—in
the presence of the Court—to tell the Court nothing but the truth about
everything I know in regard to this case.
[_The witness repeated the oath._]
THE PRESIDENT: You may sit down, if you wish. Will you spell your name;
will you spell your surname?
KIVELISHA: It is K-i-v-e-l-i-s-h-a.
THE PRESIDENT: Please, Colonel Pokrovsky.
COLONEL Y. V. POKROVSKY (Deputy Chief Prosecutor for the U.S.S.R.): What
was your position in the ranks of the Red Army at the time of the attack
on the Soviet Union by Hitlerite Germany?
KIVELISHA: At the time of the attack on the Soviet Union by Hitlerite
Germany I was junior physician in the 305th Regiment of the 44th Rifle
Division.
COL. POKROVSKY: Did your unit of the 305th Regiment of the 44th Rifle
Division take part in battles against the Germans?
KIVELISHA: Yes, our 305th Regiment of the 44th Rifle Division
participated in the battles from the first day of the war.
COL. POKROVSKY: On what date and under what circumstances were you
captured by the Germans?
KIVELISHA: I was captured by the Germans on 9 August 1941, in the
district of the City of Uman, in the Kirovograd region. I was captured
at the moment when our unit and two Russian armies to which our unit
belonged were surrounded by the Germans after prolonged fighting.
COL. POKROVSKY: What do you know about the treatment applied by the
Germans to Red Army soldiers who were captured by the Hitlerite troops?
What was the position of these prisoners of war?
KIVELISHA: I know only too well every form of barbarous mockeries
applied to the Russian prisoners of war by the Hitlerite authorities and
the Army, for the reason that I was a prisoner of war myself, for a very
long time.
On the day I was captured, I was sent in convoy in a large column of
prisoners of war to one of the transient camps. En route, talking to the
prisoners with whom I marched—I stress the fact that this was on the
very first day—I learned that the greater part of the prisoners had
been captured 3 or 4 days before the small group to which I myself
belonged.
During these 3 or 4 days the prisoners had been kept in a shed, under a
reinforced German guard and were given nothing at all to eat or drink.
Later, when we passed through the villages, the prisoners, on seeing
wells and water, passed their tongues over their parched lips and made
involuntary swallowing movements when their eyes fell on the water.
Later on in the same day we finished the march toward nighttime and the
column of prisoners, 5,000 strong, was billeted in a farm yard where we
had no possibility of resting after the long journey, and we were forced
to spend the night in the open. This continued on the following day, and
on this day too we were deprived of food and water.
COL. POKROVSKY: Was there no case when the prisoners, passing by water
tanks or wells, stepped two or three paces out of line and tried to get
at the water themselves?
KIVELISHA: Yes, I remember a few such cases and shall tell you of one
particular incident which occurred on the first day of our march. It
happened like this:
We were passing the outskirts of a little village. The peaceful civilian
population came to meet us, and tried to supply us with water and bread.
However, the Germans would not allow us to approach the citizens, nor
would they let the population approach the column of prisoners. One of
the prisoners stepped 5 or 6 meters out of the column, and without any
warning was killed by a German soldier shooting from a tommy gun.
Several of his comrades rushed to help him thinking that he was still
alive, but they too were immediately fired on without warning. Some of
them were wounded and two of them were killed.
COL. POKROVSKY: Was that the only incident you witnessed, or, during
your transfer from one place to another, did you observe other cases of
a similar nature?
KIVELISHA: No, this was not an individual occurrence. Almost every
transfer from one camp to another was accompanied by the same kind of
shootings and murders.
COL. POKROVSKY: Did they shoot only the prisoners of war, or were
measures of repression adopted toward the peaceful citizens as well,
toward the citizens who had tried to give bread and water to the
captives?
KIVELISHA: Measures of repression were applied not only to the prisoners
of war; they were also applied to the peaceful citizens. I remember
once, during one of our transfers, a group of women and children
attempted to give us bread and water, like the others, only the Germans
would not allow them to come anywhere near us. Then one woman sent a
little girl, about 5 years old, evidently her daughter, to the
prisoners’ column. This little child came quite close to the place where
I had passed and when she was five or six steps away from the column,
she was killed by a German soldier.
COL. POKROVSKY: But perhaps the prisoners of war didn’t need the food
which the population tried to give them; perhaps they were sufficiently
well fed by the German authorities?
KIVELISHA: The prisoners of war on the transfer marches suffered from
hunger to an exceptional extent. The Germans provided no food whatsoever
en route from one camp to the other.
COL. POKROVSKY: So that these gifts from the local population were the
only practical means possible to sustain the strength of the soldiers in
German captivity?
KIVELISHA: Yes.
COL. POKROVSKY: Did the Germans shoot them?
KIVELISHA: You understand me correctly.
COL. POKROVSKY: In which prisoner-of-war camps were you interned? Name
some of them.
KIVELISHA: The first camp in which I was interned was in the open, in a
field, in the district of the small hamlet of Tarnovka. The second camp
was situated on the site of a brick yard and former poultry farm on the
outskirts of the town of Uman. The third camp was situated in the
suburbs of Ivan-Gora. The fourth camp was situated on the territory
pertaining to the stables of some military unit or other in the region
of the town of Gaisen. The fifth camp was in the region of the small
garrison town of Vinnitza. The sixth camp was in the suburbs of the
small town of Dzemerinka and the last camp, where I stayed the longest
time, was in the village of Rakovo, 7 kilometers from the town of
Proskurov, in the Kamenetz-Podolsk district.
COL. POKROVSKY: So that you yourself, from your own personal experience,
could realize the state of affairs prevalent in this series of camps?
KIVELISHA: Yes, in all the camps I was personally and completely
acquainted with all the conditions.
COL. POKROVSKY: Are you a physician by profession?
KIVELISHA: I am a physician by profession.
COL. POKROVSKY: Tell the Tribunal how matters stood insofar as medical
attention and food for the prisoners of war were concerned in the camps
you have just enumerated.
KIVELISHA: When I was transported under convoy to the camp near the
hamlet of Tarnovka, I was, for the first time and in company with other
Russian doctors, separated from the rest of the prisoners’ column, and
sent to the so-called infirmary.
This infirmary was in a shed with a concrete floor, without any
equipment for the care of the wounded. And on this concrete floor lay a
large number of wounded Soviet prisoners, mostly officers. Many had been
captured 10 to 12 days before my arrival at Tarnovka. During all that
time they had received no medical attention although many of them were
in need of surgical aid, with simultaneous and frequent dressings and a
number of drugs.
They were systematically left without water; food too was administered
without any system at all; at least, at the time of my arrival in the
camp there was no equipment to prove that food had ever been prepared or
cooked for these wounded soldiers.
There were about 15,000 to 20,000 wounded in Uman Camp where I found
myself on the second day after my arrival in Tarnovka. They were all
lying in the open, dressed in their summer uniforms and a great many of
them were incapable of moving.
Food and water were supplied to them in the same way as to the other
captives in the camp. There they lay, without any medical attention,
their dust-covered dressings soaked in blood, often in pus. Dressings,
surgical instruments, equipment for an operating theater just did not
exist in the camp at Uman.
In Gaisen prisoners of war, sick and wounded, were herded into one of
the stables. This stable had no wooden floors and lacked every facility
for human habitation. The prisoners of war were lying on the earthen
floor, and here, too, as in the preceding camp, they did not have even
an iota of medical attention. As before, dressings, drugs, and surgical
instruments were unobtainable.
COL. POKROVSKY: You mentioned the Uman Camp. Look at this photograph and
tell me, is it a photograph of one of the camps where you were interned?
KIVELISHA: I see on this photograph the camp which was situated in the
grounds of the brick yard at the city of Uman. I know this picture very
well.
COL. POKROVSKY: I must report to the Tribunal that the photograph I have
just shown the witness is a photograph of Uman Camp and was submitted by
me to the Tribunal as Exhibit Number USSR-345. It shows the camp
concerning which witness Bingel has already testified.
[_Turning to the witness._] This means that you recognize Uman Camp
situated in the grounds of the brick yard from this photograph?
KIVELISHA: Yes, in the grounds of the brick yard. It is a part of the
camp.
COL. POKROVSKY: What was the prevailing regime in Uman Camp? Tell us
just the main points, very briefly.
KIVELISHA: Almost all the captives in the camp were kept in the open
air. The food was extremely bad. In the grounds of the Uman Camp, where
I spent 8 days, twice a day a few fires would be lit out of doors and a
thin pea soup was cooked in vats over these fires.
There was no special routine for distributing food to the prisoners of
war, and the boiled soup would then be set down amongst the whole mass
of people. No control whatsoever was exercised over the distribution.
The starving prisoners rushed up in the hope of obtaining even a minute
portion of this thin, unsalted soup, cooked without fat and served
without bread.
Disorder and crowding arose. The German guards, all armed with clubs as
well as with rifles and automatic guns, beat up all the prisoners of war
within range of their blows for the purpose of maintaining order. The
Germans would often intentionally set down a small barrel of soup among
a great number of people, and once again, to restore order, they would
beat up the absolutely innocent people with laughter, oaths, insults,
and threats.
COL. POKROVSKY: Please tell me, Witness: In the camp situated in the
village of Rakovo, was the quality of the food better or was it
approximately the same as in other camps? And how did the food situation
affect the health of the prisoners?
KIVELISHA: In the camp of Rakovo the food was exactly the same in
quality as that of the other camps where I had been previously interned.
It consisted of beets, cabbage, and potatoes frequently served
half-cooked. Owing to this poor quality of food the prisoners developed
severe gastric trouble accompanied by dysentery, which rapidly exhausted
them and resulted in a very high rate of mortality from hunger.
COL. POKROVSKY: You talked about the guards often beating the prisoners
on the slightest provocation and time and again without any provocation
at all.
KIVELISHA: Yes.
COL. POKROVSKY: What kind of traumatic lesions did the prisoners receive
as a result of these beatings? Were there any cases of severe traumatic
injuries caused by heavy beatings or did the whole matter result in a
few kicks only?
KIVELISHA: In Rakovo Camp I was in the so-called hospital, where I
worked in the surgical section. Frequently, after dinner or supper in
the hospital, prisoners were brought in with most grievous physical
injuries. I frequently had to do all I could to help people who were so
terribly injured by these beatings that they would die without regaining
consciousness.
I remember a second case when two prisoners were beaten over the head
with some hard object till the brains oozed out from the gaping head
wound. I remember yet another incident, only too well, when an athlete
from Moscow had an eye knocked out with a whip. The athlete then
contracted meningitis and died soon after.
COL. POKROVSKY: How high was the mortality rate among the prisoners of
war in Rakovo Camp?
KIVELISHA: The history of Rakovo Camp can be divided into two periods.
There was the first which lasted about 2 years and ended in November
1941. At that time the number of prisoners was not very great and
consequently the rate of mortality was not so high. Then there was the
second period, from November 1941 to March 1942, at which time I was in
Rakovo myself. During this second period the mortality rate was
exceptionally high: there were days when 700, 900, and even 950 persons
died in the camp.
COL. POKROVSKY: What disciplinary measures were there in Rakovo Camp and
for what reasons were the prisoners punished? Do you know?
KIVELISHA: Yes. I know that there was, in the camp grounds, a cell for
prisoners condemned to solitary confinement. Prisoners of war guilty of
attempting to escape from the terrible conditions created for them in
captivity, or with offenses such as stealing food products in the
kitchen, were locked up in this cell.
It was in the cellar; it had a cement floor and windows with iron bars
instead of panes. The prisoner was stripped to the skin, deprived of
food and water, and locked up in solitary confinement for 14 days. I do
not know of a single case where a prisoner survived this confinement;
all of them died in that particular cell.
COL. POKROVSKY: Evidently the conditions which you have described to the
Tribunal increased the number of persons suffering from exhaustion.
KIVELISHA: Yes.
COL. POKROVSKY: Did this condition result in a decreased number of
prisoners capable of working? Did their number decrease; what was done
to those prisoners who could not work?
KIVELISHA: An immense number of prisoners were kept, in Rakovo Camp, in
stables which were quite unfit for human beings to live in during the
winter period. At first everybody was made to work. I can safely say
that most of this work was entirely aimless, since it consisted in
pulling down houses and then paving the camp grounds with bricks from
the demolished buildings. After some time, when severe gastric troubles
had set in, troubles which I have already mentioned, fewer and fewer
prisoners came out to work.
Many of them, who had lost all control of their movements, never even
left the stables for the appointed meal times, and if a great many
people were discovered to have lost their strength, a so-called
quarantine was established. In such a stable all the exits and entries
would be blocked and the patients would be completely isolated from the
outer world. Having kept them locked up for 4 or 5 days on end, the
stable would be opened and the dead brought out by the hundreds.
COL. POKROVSKY: Can you tell us, Witness, on what medical or sanitary
work you and the other doctors were employed in the camp by the Germans?
KIVELISHA: In the camps we were not employed by the Germans on any work
connected with the prisoners. All the Germans were interested in was the
separation of people who could work from those of the prisoners who were
incapable of working. We could not render the prisoners any purely
medical services because of the conditions in which we ourselves
existed.
COL. POKROVSKY: Did your duties in any of these camps include sanitary
supervision? And what exactly was understood by sanitary supervision?
KIVELISHA: The duties of sanitary supervision were entrusted to us in
the camp of the town of Gaisen. It only meant that we, the captured
military doctors, had to be on duty in the vicinity of the general
latrine in the camp, which was nothing more than a ditch dug for this
purpose, and as and when the ditch was filled up with excrement, we were
forced to clean up the ground.
COL. POKROVSKY: The doctors?
KIVELISHA: Yes, the doctors.
COL. POKROVSKY: Did you really consider this function as a form of
sanitary supervision, or did you consider it as straightforward mockery
by the Germans at the expense of the captured Soviet army doctors?
KIVELISHA: I consider that it was straightforward mockery at the expense
of the captured Soviet doctors.
COL. POKROVSKY: Mr. President, I have no more questions to ask this
witness.
THE PRESIDENT: Have any of the other prosecutors got any questions to
ask?
COL. POKROVSKY: No, Sir.
THE PRESIDENT: Do any of the defendants’ counsel wish to ask any
questions?
DR. LATERNSER: Witness, you have stated that in August 1941 . . .
THE PRESIDENT: Will you kindly announce your name for whom you appear.
DR. LATERNSER: Dr. Laternser, Defense Counsel for the General Staff and
the OKW.
Witness, you have just stated that in August 1941 you were brought to
captivity in the district of Uman. Do you know whether the Germans had
taken many prisoners at that time?
KIVELISHA: Yes, I do know. About 100,000 prisoners were captured at that
time.
DR. LATERNSER: Do you know whether German troops had advanced very
rapidly into Russian territory at that time?
KIVELISHA: I cannot say anything about this. The German armies moved
very rapidly, but before our units were surrounded we fought obstinately
and we retreated, fighting, right up to 9 August.
DR. LATERNSER: How great was the number of prisoners in the column in
which you marched?
KIVELISHA: Four thousand to five thousand persons.
DR. LATERNSER: When did you first get any food from the German troops?
KIVELISHA: I personally, and for the first time, received food from the
German troops when I reached the town of Uman.
DR. LATERNSER: How much time had passed between the moment you were
captured and your first meal?
KIVELISHA: When I was first fed I had been a prisoner of war for about 4
or 5 days.
DR. LATERNSER: You were a Red Army doctor and must have been quite aware
that the feeding of armies is not so simple a matter.
KIVELISHA: I could not imagine this, especially as the Germans had then
at their disposal time and many possibilities for supplying the
prisoners of war with food. Further, to my previous statements I shall
again repeat that if the German authorities were unable to provide the
prisoners of war with food, the peaceful population did everything in
their power to feed the Russian prisoners. However, obviously neither
the German authorities nor the German Command issued any instructions on
this matter.
I have already reported that no opportunity was given for friendly
relations between the prisoners of war and the peaceful citizens. On the
contrary, any persons who tried to bring food to the prisoners or any
prisoner who accepted the food from the citizens was promptly shot.
DR. LATERNSER: But you can certainly imagine that it must have presented
immense difficulties if, as you have just testified, 100,000 prisoners
had been taken at that time in the area of Uman?
KIVELISHA: Not all the prisoners of war were concentrated at Uman at one
and the same time. There were several stationary and permanent camps,
only several of them were at Uman.
DR. LATERNSER: I was not speaking about the food problem in Uman Camp.
We are still talking about the feeding during the first days after their
capture.
KIVELISHA: When I was brought into captivity I was not singled out in
any way from among the other prisoners of war. I was fed and I was
supplied in exactly the same way as all the others. I was one of the
general crowd and the general column of the prisoners of war. The German
Command made no distinction in the first days of captivity.
DR. LATERNSER: But you will have to admit that there were certain
difficulties connected with food supplies which would arise if quite
unexpectedly a column, such as yours, 5,000 men strong, had to be fed by
rapidly advancing troops.
KIVELISHA: Even if the German Command had been faced with this
particular difficulty, the problem could always have been solved by
allowing the prisoners to accept the food products which the peaceful
population, the Soviet citizens, were offering them.
DR. LATERNSER: We shall talk about that immediately. You say you were in
a column of 5,000 prisoners. Can you tell me how strong the guard was,
the German guard, under whom this column of 5,000 marched?
KIVELISHA: I cannot state the exact figures. But there were a great many
German machine gunners. The column was too drawn out in length and I am
unable to state the figure.
DR. LATERNSER: I understand that you cannot give the exact figures. But
can you describe to the Tribunal how great the distance was between
individual guards marching alongside the column?
KIVELISHA: The distance would be as follows: two or three soldiers,
walking in a row, would march approximately five or six steps behind a
second row of the same number.
DR. LATERNSER: Thus, every 50 to 60 meters, on either side of the
column, or perhaps only on one side of the column, German troops marched
in groups of two and three soldiers, as you say, or have I not
understood you correctly?
KIVELISHA: Not 50 to 60 meters; 5 to 6.
DR. LATERNSER: Were the guards elderly men or were there younger
soldiers among them?
KIVELISHA: They were soldiers of the German Army. They were of every
age.
DR. LATERNSER: Were the Russian prisoner-of-war columns informed, before
they started, that they would be shot if they left the ranks?
KIVELISHA: I have already said, and I repeat once again, there were no
warnings.
DR. LATERNSER: Not even when the column set off?
KIVELISHA: No.
THE PRESIDENT: Perhaps it would be a good time to break off till 2
o’clock.
[_The Tribunal recessed until 1400 hours._]
_Afternoon Session_
THE PRESIDENT: The Tribunal has made its decision upon the witnesses and
documents to be called and produced on behalf of the first four
defendants and that decision will be communicated as soon as possible
this afternoon to counsel for those defendants and will also be posted
in the Defendants’ Information Center.
Secondly, an application was made some time ago by the Chief Prosecutor
for France with reference to the calling of two additional witnesses.
The Tribunal would wish that if it is desired to call any witnesses
after closing the case on behalf of any of the chief prosecutors, that a
written application should be made to the Tribunal for the calling of
such witnesses, and the Tribunal also desires me to draw the attention
of Counsel for the Prosecution and Counsel for the Defense to the terms
of Article 24, Subsection (e), which refers to rebutting evidence. In
the event of Counsel for the Prosecution or Counsel for the Defense
wishing to call rebutting evidence when the proper time comes, after the
case for the Prosecution and the Defense has been closed, such
application to call rebutting evidence must be made to the Tribunal in
writing.
SIR DAVID MAXWELL-FYFE: My Lord, I wonder if the Tribunal would allow me
to say something on a matter on which I promised to get information
yesterday.
Your Lordship will remember that Dr. Horn asked for a withdrawn edition
of the _Daily Telegraph_ of the 31st of August 1939, and I promised the
Tribunal that I should make inquiries. I had a telegram from the _Daily
Telegraph_, which I received this morning, and it says:
“No edition of the _Daily Telegraph_ withdrawn on 31 August 1939
or any other day thereabouts. The _Telegraph_ of the 31st gave a
brief paragraph saying meeting Henderson-Ribbentrop had taken
place but without details.
“On 1st September carried summary of Germany’s 16 points for
Poland as broadcast by the German radio. Actual text of the note
did not appear until September 2, when extracted from the
Foreign Office White Paper of all relevant documents.”
I thought it was only right, as I had promised to get the information,
that I should put it before the Tribunal, and I propose to send a copy
of that to Dr. Horn.
THE PRESIDENT: Thank you, Sir David. I think that may necessitate a
slight variation in the order which the Tribunal was proposing to make.
DR. NELTE: Regarding the question of Generals Halder and Warlimont as
witnesses, Mr. President, permit me to ask you to answer one question;
namely, to tell me if the Court has decided yet that the Generals Halder
and Warlimont, whom I have named as witnesses, and whose relevancy has
been admitted by the Prosecution, will be approved as witnesses for
Keitel so that we can count with certainty on their appearing in the
proceedings.
THE PRESIDENT: Yes, certainly. What I meant to state this morning was
that the Defense Counsel should decide whether they wanted to have them
to cross-examine them now or call them as witnesses on behalf of one or
other of the defendants, and therefore that was a decision that the
Defense Counsel would be able to call them on behalf of one of the
defendants if they determined to do so.
Therefore they can be called for Keitel, unless, of course, they were
called before. If the Defendant Göring wanted to call them then they
would have to be examined on behalf of Keitel when they were called for
Göring, because of the fundamental rule that a witness is only to be
called once.
DR. NELTE: Very well. I wish to state that the Defense Counsel who are
interested in the interrogation of Generals Halder and Warlimont are
agreed that these generals should be called in the course of the
presentation of evidence by the Defense.
THE PRESIDENT: Yes, very well.
Colonel Smirnov . . . I beg your pardon. Dr. Laternser.
DR. LATERNSER: I have a few more questions to ask this witness.
Witness, you said this morning that for rest during their march to the
camp the four or five thousand Russian prisoners were accommodated in a
stable. Was this stable roofed?
KIVELISHA: It was the usual type of country cow shed, and since the farm
had previously been evacuated, the shed had not been cleaned for a very
long time and was in a state of complete neglect. And if we add to this
state of neglect the fact that it had been pouring with rain all that
day, we must also add that it was half-swamped in soft mud. It was quite
impossible to settle down in the stables and barns since they were
filled with left-over manure, so that all the people stayed out of
doors.
DR. LATERNSER: Was it possible in this case to accommodate these
prisoners in a better way?
KIVELISHA: It is very difficult for me to answer that question, for I am
not at all acquainted with the locality where I was captured, and, on
the other hand, we were brought to this village late at night and I do
not know whether there were more convenient places where the prisoners
could have been quartered.
DR. LATERNSER: That is to say, on this evening when you entered this
village, you yourself saw no possibility for better accommodations?
KIVELISHA: It is not because I did not see better quarters, but because
it was night and I could not therefore observe the village, although it
was a rather large village and it seems to me that there was a
sufficient number of large houses where 5,000 to 6,000 people might have
easily been billeted more conveniently for the night.
DR. LATERNSER: I shall have one last question. You said that in the
prisoner camp you were not employed in your capacity as a physician. Did
the German prisoner-of-war administration ever place any medical
supplies at your disposal so that you could treat your sick comrades?
KIVELISHA: In the first stages, when we were being evacuated step by
step from one camp to another, we received no medical equipment at all
from the Germans; but subsequently when I was in a stationary camp,
Stalag 305, medical equipment was issued, though never in sufficient
quantities to meet the requirements of all the wounded.
DR. LATERNSER: I have no further questions.
HERR LUDWIG BABEL (Counsel for the SS and the SD): I have only one
question. The witness has stated that the stable was evacuated. What do
you mean by that term?
KIVELISHA: By that I mean that all the cattle in the stable had been
driven off beyond the zone of military operations.
HERR BABEL: By whom was this done?
KIVELISHA: It was done by the citizens of the village we had entered and
who had retreated eastwards, together with Red Army units who had not
been surrounded as we were.
HERR BABEL: That is to say, the cattle had been brought back to Russian
territory?
KIVELISHA: From this village, yes.
HERR BABEL: Thank you.
THE PRESIDENT: Do any other defendants’ counsel wish to ask questions?
Witness, were any SS units used for guarding the prisoners of war whilst
you were prisoner of war?
KIVELISHA: In the camp of Rakovo; in the district of the town of
Proskurov, where I was interned most of the time, the convoying of labor
Kommandos was carried out by young German soldiers who, at that time,
were named the SS.
THE PRESIDENT: Was that a stationary camp?
KIVELISHA: Yes, it was a stationary camp.
THE PRESIDENT: But SS units were not used to guard you until you got to
that stationary camp?
KIVELISHA: I cannot say anything definite on the subject, since I did
not know the distinctive insignia of the German Army.
THE PRESIDENT: Colonel Smirnov, do you want to ask anything in
re-examination?
MR. COUNSELLOR SMIRNOV: I have no further questions to ask the witness.
THE PRESIDENT: Then the witness can retire.
[_The witness left the stand._]
MR. COUNSELLOR SMIRNOV: May I continue, Mr. President?
THE PRESIDENT: Yes.
MR. COUNSELLOR SMIRNOV: I request the Tribunal to accept as one of the
proofs of the Hitlerite crimes perpetrated in the prisoner-of-war camps
certain documents which I should like to submit to the Tribunal at the
request of our honorable British colleagues. The Soviet Prosecution does
this all the more readily in that it considers this documentation of the
British Prosecution of essential importance in establishing the criminal
contravention by the major Hitlerite war criminals of the laws and
customs of war accepted by all civilized nations for the treatment of
prisoners of war.
I would ask the Tribunal to add to the documentation of the Trial the
documents of the British Delegation, which I have presented as Exhibit
Number USSR-413 (Document Number UK-48) regarding the cruel murder of 50
prisoners of war, officers of the Royal Air Force, who were captured
while attempting to escape en masse from Stalag Luft III at Sagan and
shot after their capture by the German criminals in the night of 24-25
March 1944.
These documents consist of an official record of the Hitlerite crimes,
signed by Brigadier Shapcott, representative of the British Armed
Forces, and the attached minutes of the court of inquiry held in Sagan
by order of the senior British officer in Stalag Luft III and forwarded
to the protecting power.
Included with these documents are the statements of the following Allied
witnesses: Wing Commander Day, Flight Lieutenant Tonder, Flight
Lieutenant Dowse, Flight Lieutenant Van Wymeersch, Flight Lieutenant
Green, Flight Lieutenant Marshall, Flight Lieutenant Nelson, Flight
Lieutenant Churchill, Lieutenant Neely, P. S. M. Hicks.
The material evidence is also corroborated by statements taken from the
following Germans: Generalmajor Westhoff, Oberregierungs und Kriminalrat
Wielen, Oberst Von Lindeiner.
There is also a photostatic copy attached of the official list of those
who perished, handed over by the German Foreign Office to the Swiss
Diplomatic Mission in Berlin, and the report of the representative of
the protecting power during his visit to Stalag Luft III on 5 June 1944.
I shall briefly summarize the circumstances of this infamous crime of
the Hitlerites by quoting from the report of Brigadier Shapcott. Your
Honors will find the passage which I am about to quote on Page 163,
Paragraph 2 of the document book. I begin:
“On the night of 24-25 March 1944, 76 R.A.F. officers 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. . . .”
The following information was given by the German authorities who stated
that these 50 officers were shot, allegedly while attempting to escape.
Actually this statement was the customary routine lie of the Hitlerites,
since the very thorough investigation carried out by the British
military authorities proved indubitably that the British R.A.F. officers
had been vilely murdered after recapture by the German police.
I submit evidence to this effect and quote the report presented by the
British Prosecution. It was ascertained that this crime was committed by
order of Göring and Keitel. The passage which I wish to submit to the
Tribunal is on Page 168 of the document book, Russian text.
THE PRESIDENT: Yes, Dr. Nelte?
DR. NELTE: The Tribunal will recall that the question of hearing the
witness Major General Westhoff has already played a role here once
before. The Prosecution at the time—I do not have the document here
now—submitted a report regarding the interrogation of Major General
Westhoff; that is to say, the Tribunal, upon my objection, refused to
have this document read in Court.
I do not know whether, as the prosecutor is now speaking of the
testimony of Major General Westhoff, it concerns the same document which
the Tribunal previously refused to admit or whether it concerns a new
document which I do not know as yet. I draw your attention to the fact
that General Westhoff is here in person; in other words, he could be
called as a witness on this question.
MR. COUNSELLOR SMIRNOV: Permit me to say, Mr. President . . .
THE PRESIDENT: Colonel Smirnov, you have heard what Dr. Nelte said. As I
understood it—I am not sure if I got the name right—but he referred to
General Westhoff’s evidence which has been tendered, and which had been
rejected because the Tribunal thought that if that evidence was to be
given, General Westhoff ought to be called. Is it right that the
document you are putting in has got nothing to do with General Westhoff
at all, has it?
MR. COUNSELLOR SMIRNOV: Westhoff is mentioned in only one part of the
official British report.
THE PRESIDENT: But it is not a report made by General Westhoff, is it?
MR. COUNSELLOR SMIRNOV: That is perfectly correct. I am now submitting
an official British report to the Tribunal. Only one passage in the text
of the official British report mentions Major General Westhoff, but this
mention has nothing to do with the interrogatory of Major General
Westhoff which will be brought up later.
MR. G. D. ROBERTS (Leading Counsel for the United Kingdom): My Lord,
perhaps I might assist in this matter—because I am partly responsible
for that report—with the kind indulgence of my learned friend, my
Russian colleague.
My Lord, the document which is now about to be read is a British
official government report under Article 21 of the Charter, and the
original is properly so certified. My Lord, it is quite true that
General Westhoff’s name is mentioned in the report, but it is quite a
different document to the document which my French colleagues tendered
and which the Tribunal rejected in evidence. It is an official
government report.
MR. COUNSELLOR SMIRNOV: That is just what I have been saying, Your
Honor. This is an official report of the British Government.
THE PRESIDENT: One moment, Colonel Smirnov.
Mr. Roberts—I just wish to speak to Mr. Roberts, Dr. Nelte—why do you
say that it is an official government report so as to come within
Article 21 of the Charter?
MR. ROBERTS: Because the original has been handed in and it has been
certified by Brigadier General Shapcott of the Military Department of
the Judge Advocate General’s office. I think you have the original.
THE PRESIDENT: Yes, I have the original. Mr. Roberts, to whom was it
made, this report?
MR. ROBERTS: My Lord, it was made in connection with the collection of
evidence for this Tribunal. As Your Lordship sees, it is headed, “German
War Crimes. Report on the Responsibility for the Killing of 50 R.A.F.
Officers,” and then it starts to say—then it states the sources on
which the material has been based. Your Lordship will see on the last
page of the report the appendix, “Material upon which the foregoing
report is based”:
“1. Proceedings of Court of Inquiry held at Sagan. . . . 2.
Statements of the following Allied witnesses. . . . 3.
Statements taken from the following German. . . . 4. Photostat
copy of the official list of dead, transmitted by the German
Foreign Office to the Swiss Legation. . . . 5. Report of the
Representative of the Protecting Power on his visit to Stalag
Luft III on 5th June 1944.”
THE TRIBUNAL (Mr. Biddle): Mr. Roberts, was this made for the Tribunal
or for the War Crimes Commission?
MR. ROBERTS: It was made for this Trial.
THE TRIBUNAL (Mr. Biddle): Made for this Trial?
MR. ROBERTS: For this Trial.
THE TRIBUNAL (Mr. Biddle): By a general in the Army?
MR. ROBERTS: Yes, My Lord.
THE TRIBUNAL (Mr. Biddle): And he reported to whom?
MR. ROBERTS: My Lord, it was then submitted to the British Delegation
for this Trial.
THE TRIBUNAL (Mr. Biddle): You mean the Prosecution?
MR. ROBERTS: Yes, My Lord.
THE TRIBUNAL (Mr. Biddle): So this is the report of a British general
made to the British Prosecution?
MR. ROBERTS: My Lord, I would not quite, with respect, accept the phrase
“report of a British general.” I would say “a report of a government
department.” It is signed and certified by a British general.
THE TRIBUNAL (Mr. Biddle): Yes.
MR. ROBERTS: My Lord, I submit most respectfully that My Lords may
exactly read in Article 21: “The Tribunal shall take judicial notice of
official governmental documents and reports of the United
Nations. . . .”
My Lord, I submit that this is clearly an official governmental
document, a report made by a department of the Army in London, a
government department, for the purpose of this Trial.
THE TRIBUNAL (Mr. Biddle): Then any evidence that was collected and sent
in by the government will be official evidence.
MR. ROBERTS: I think that is so under Article 21, that is, as I read it
and as I respectfully submit to Your Lordship.
THE PRESIDENT: Do you wish to add anything, Dr. Nelte?
DR. NELTE: Yes, I should like to make a few further remarks.
It is, in other words, a report which was drawn up on the basis of
testimony by witnesses, among whom, as I understand, was also Major
General Westhoff. I do not challenge the official character of this
document, or that you can and must accept it as evidence under the terms
of the Charter. But it seems to me that another question is involved
here, namely, the question of better evidence. If a witness, who is at
the disposal of the Court, could be eliminated by including his
testimony in an official report, then the taking of evidence would not
comply with the Tribunal’s desire that it should represent the best
method to discover the truth.
The witness is at your disposal; the report does not contain literally
what he said, but simply a conclusion the accuracy of which is subject
to doubt, whereas it need not remain in doubt. But I believe the Defense
must also have an opportunity in their turn, to hear and examine a
witness, if it is as easily possible as in this case.
THE PRESIDENT: But Dr. Nelte, supposing that one of the witnesses who
had been examined by one of the committees set up by the government had
not made a report to the government at all, but an affidavit or
something of that sort; and that had been offered to the Court and the
witness had been available, the Court might very possibly have refused
to entertain that affidavit or report. But if that report was the
foundation for a government report or for a government official
document, then, by Article 21, the Tribunal is directed to entertain
such a report.
Therefore, the fact that the Tribunal has already said that they
wouldn’t have some private affidavit or report of General Westhoff
unless General Westhoff were called, is not relevant at all. It is a
question whether they ought to entertain a report which you admit comes
within Article 21.
DR. NELTE: I do not doubt that Your Lordship’s view is correct. I should
merely like to bring up the question whether, when one has two different
types of evidence, namely, the report and the possibility of examining a
witness, it should not be taken into consideration to question the
witness, not in order to correct the official report, but in order to
clarify what the witness actually said, because from the report we
cannot know what he actually said.
This question is, as you will understand, of tremendous importance for
the Defendant Keitel, who allegedly issued an order to shoot the escaped
fliers and if a witness who could clarify this question is available,
this witness should be heard instead of an official report which already
actually contains an evaluation.
THE PRESIDENT: But in the first place this report does not proceed only
or even substantially upon the evidence of General Westhoff. There are a
number of other origins of the report, and the second thing is that the
whole object of Article 21 was to make government reports admissible and
not to necessitate the calling of the witnesses upon whose evidence they
proceeded.
DR. NELTE: The other witnesses were interrogated on all other matters,
namely, the shooting. . . The other witnesses who were mentioned were
questioned on other facts. On the question of whether Keitel issued such
an order at all, General Westhoff is the only one mentioned in the
report.
THE PRESIDENT: Would you repeat that? I do not have my earphones on.
DR. NELTE: I said, in that report other witnesses are also mentioned
but, as far as I know, they did not make a statement on the question of
whether or not Keitel issued an order to shoot the fliers. Westhoff was
the only one among the witnesses listed who could and did make a
statement on that question.
THE PRESIDENT: Do you wish to say anything further in argument upon the
admissibility of the document?
DR. NELTE: No.
THE PRESIDENT: Colonel Smirnov.
MR. COUNSELLOR SMIRNOV: It appears to me, Mr. President, that that part
of the document which refers to Major General Westhoff occupies merely
one paragraph, namely, Paragraph 7, of the document in question. This
part deals with the initial stage of the perpetration of the crime,
namely, with the stage of the conception, the stage of the planning of
the crime.
The document also speaks of other stages in the commission of this
crime. Moreover, it is an official document, presented according to
Article 21 of the Charter. It seems to me that I have thereby said all
that is necessary, Mr. President.
THE PRESIDENT: Do you wish to say anything further, Dr. Nelte?
DR. NELTE: No, thank you. I merely ask the Court to decide; in that case
I should have to request that General Westhoff be admitted as a witness
to testify that the conclusion drawn in this report does not correspond
with what he said.
DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen and for the Reich
Cabinet): May I make a few legal remarks, a few generally legal remarks
regarding Article 21 of the Charter?
In all criminal procedure of every country we find the primary principle
of oral court proceedings. Only if this cannot be carried out are part
of the proceedings, so to say, transferred outside the court. In most
codes of criminal procedure of the various countries we have a provision
similar to that of Article 21 of the Charter that previous decisions of
a court should not be re-examined in new proceedings, but that such
decisions should be binding.
In this Trial the Charter extends this provision further to cases which
obviously, because of their scope, should not be further discussed here.
Therefore the decision that government reports should be considered as
evidence is clearly taken up in Paragraph 21. It is clear to every
jurist that this provision in itself is to an extent a flaw in
proceedings because through it certain rights are lost to the
defendants. On the other hand one cannot, of course, ignore the argument
that there is subject matter which, because of its extent, cannot be
practically discussed in a trial in which the time is limited.
Paragraph 21 of the Charter therefore gave the Tribunal the possibility
of accepting such reports as valid evidence. But this provision is not
compulsory for the Tribunal. So far as I can see from the German text
before me it is provided that the Tribunal should accept these reports,
but it does not say that the Tribunal must do so. Therefore it is in
every case left to the discretion of the Tribunal whether the nature of
the report makes it advisable to accept such a report in evidence.
We now have here a rather striking case which, in my opinion, clearly
shows that the Tribunal can make use of its discretion and reject this
document. The Defense have taken the position that this subject of
evidence could be taken care of by a witness. The examination of the
witness would have provided the Defense with the right of
cross-examination.
Since, for tactical reasons inherent in the nature of the Trial, the
witness will not be called, the subsequent transfer of his evidence into
a government report means curtailing the right of the defendant to
cross-examination, and is thus contrary to the corresponding article of
the Charter.
DR. STAHMER: It was not until today that the accusation was made that
Göring knew of or ordered the execution of these fliers. I could not
take this act into consideration when I recently offered my evidence,
because I did not know of it; and I must, therefore, reserve the right
to call additional witnesses on this question.
MR. COUNSELLOR SMIRNOV: May I say a few words, Mr. President?
THE PRESIDENT: On the question of the admissibility?
MR. COUNSELLOR SMIRNOV: Yes, Mr. President.
THE PRESIDENT: Yes.
MR. COUNSELLOR SMIRNOV: I consider the arguments put forward by the
second Defense Counsel as entirely incomprehensible from a legal point
of view since he introduces certain numerical and quantitative criteria
into the legal nature of the evidence. According to this Counsel,
Article 21 of the Charter deals only with evidence of crimes committed
on an enormous scale, but cannot touch crimes of a smaller caliber.
To me, viewing the matter from a legal point of view, this argumentation
appears rotten from the root upwards and I consider that Article 21 of
the Charter applies, _in toto_, to any crime committed by the
Hitlerites, regardless of the fact if they be committed on a very large
or on a slightly smaller scale. That is all I wish to say, Mr.
President.
THE PRESIDENT: The Tribunal will adjourn.
[_A recess was taken._]
THE PRESIDENT: Mr. Roberts, the Tribunal would like to know where these
appendices which are referred to in Paragraph 9 of the report are.
MR. ROBERTS: I think they are in the Tribunal now, in the charge of the
Officer of the Court.
THE PRESIDENT: They are in the court now? You can undertake, I suppose,
to produce them all if they are not any of them there?
MR. ROBERTS: My Lord, most certainly. I understood the whole of the
material is not necessary—the original, of course—but I understood the
whole of the material to be there, all in the original, of course.
THE PRESIDENT: Yes. Then the Tribunal decides that the document will be
admitted, and the Tribunal will summon, if he is available—and we think
he is—General Westhoff; and that will be, in effect, granting the
defendants’ application to call General Westhoff, and also to call the
officer mentioned in Paragraph 3(b) of the appendix, whose surname
appears to be Wielen. I do not know whether you know where he is.
MR. ROBERTS: I will make inquiries and I can assure the Tribunal that we
will do everything in our power to get the witnesses that are required
for the defense, namely, General Westhoff, who is in Nuremberg, I
understand, and General Wielen. I am not certain where he is, but I will
find out.
THE PRESIDENT: Very well.
PROFESSOR DR. HERBERT KRAUS (Counsel for Defendant Schacht): Mr.
President, you made a remark during the session with which the Defense
Counsel are very much concerned. If we understood this remark, it was
said that private affidavits would not be accepted by the Tribunal.
Considering the fact that we must offer our evidence now, this question
of affidavits is very urgent. That is why I am forced to clarify that
question. The Defense Counsel has. . .
THE PRESIDENT: Dr. Kraus, I do not think I said that affidavits could
not be admitted. What I said was, it might be that affidavits would not
be admitted, if the witness was available to give direct evidence. That
is the rule which we have enforced throughout the Trial.
DR. KRAUS: Yes, I understand you, Mr. President, to say that in
principle we may offer affidavits, whether certified by notary public or
by a lawyer or whether bearing only the signature of the person who
makes the statement. These are the three forms we have: The simple
letter written with the statement, “I declare under oath.” The second
type is that in which the signature has been certified by a lawyer; and
the third type is the one which has been declared before and certified
by a notary public.
We have procured many documents of that kind, in order to expedite
matters, and we would like to know whether or not we may expect to
present them as evidence in order to avoid the calling of witnesses.
THE PRESIDENT: I think that in all probability the matter will be
considered when you present the applications for giving evidence by
affidavit. We have, today, in dealing with the first four defendants,
allowed, in a variety of instances, interrogatories to be administered
to various witnesses where it appeared appropriate that that should be
done in order to save time. No doubt the same rule will apply when you
come to submit your applications.
DR. KRAUS: Thank you.
THE PRESIDENT: Colonel Smirnov, would it be more convenient to you to go
on with your presentation now on this document which we have admitted,
or do you wish to present a film?
MR. COUNSELLOR SMIRNOV: Mr. President, I would like to finish the
presentation of this proof, that is, to read into the record the
passages from the document I have quoted.
THE PRESIDENT: Very well; but the Tribunal, I think, desire that these
two witnesses, Major General Westhoff and Wielen, whatever his rank may
be, should be produced for examination as soon as possible afterwards. I
don’t mean this afternoon, because that would not be possible, but, if
possible, tomorrow.
MR. COUNSELLOR SMIRNOV: If you will allow me, I shall request the
representative of the British Delegation to reply to this question.
THE PRESIDENT: Mr. Roberts, Colonel Smirnov was saying he would ask you
to answer, because I was saying that the Tribunal would like to have the
witnesses called as soon as possible after the report was read.
MR. ROBERTS: Westhoff we know about, so I heard, Sir, and I am trying to
make inquiries now where Wielen is. If Your Lordship will give me a few
minutes I will try to find out where Wielen can be located.
THE PRESIDENT: Yes.
MR. ROBERTS: But I shall have to leave the Court, then, My Lord.
THE PRESIDENT: One minute, please.
Colonel Smirnov, would not it be equally convenient to go on with the
film now in order that the report, when it is presented, can be
presented as close as possible to the evidence of the witnesses?
Otherwise, supposing Mr. Roberts is unable to locate Wielen this
afternoon, it might be that if you read the report now, there might be a
week possibly—or even more—between the reading of the report and the
evidence of the witness. Is it possible to go on with the film now?
MR. COUNSELLOR SMIRNOV: What we are showing the Tribunal cannot be
called a film in the full sense of the word. It is a series of
photographic evidence, of photographs taken by the Germans themselves on
the site where the crimes were committed, which were then rephotographed
and transferred to a reel. It is not a film—it is a photo-document. We
are presenting these photo-documents as Exhibit Number USSR-442
(Document Number USSR-442), and we are presenting only one part of these
photo-documents. The fact of the matter is that the Government of
Yugoslavia presented photo-documents for every section of the report. We
have excluded the part dealing with the other sections and show only
that part which deals with Crimes against Humanity. Thus, only a section
of the documents is being shown to the Tribunal. May I show these
photo-documents?
[_The photographic document was then projected on the screen._]
MR. COUNSELLOR SMIRNOV: May I continue with the presentation of the
documentary evidence?
THE PRESIDENT: Yes.
MR. COUNSELLOR SMIRNOV: Mr. President, in order to allow the British
Prosecution to settle the question as to when the two witnesses will be
summoned before the Tribunal, I take the liberty of passing to the next
part of my statement. Have I your permission to do so?
THE PRESIDENT: Yes.
MR. COUNSELLOR SMIRNOV: I pass on to that part which deals with the
persecution of the Jews, Page 37 of the text. The excessive
anti-Semitism of the Hitlerite criminals, which assumed a perfectly
zoological aspect, is only too well known. I shall not quote from the
so-called theoretical works of the major war criminals—from Himmler and
Göring to Papen and Streicher. In the Eastern European countries all the
anti-Semitism of the Hitlerites was put into full effect and mostly in
one way only—in the physical extermination of innocent people.
The United States Prosecution, in its own time, submitted to the
Tribunal one of the reports of a special German fascist organization,
the so-called Einsatzgruppe A, which was submitted as Exhibit USA-276
(Document Number L-180). Our American colleagues submitted this
particular report which covered the period up to 15 October 1941. The
Soviet Prosecution submits another report of this criminal German
fascist organization, covering a further period of time and which might
almost be considered as a continuation of the first document, namely the
report on Einsatzgruppe A, from 10 October 1941 to 31 January 1942. I
submit to the Tribunal a photostatic copy of this report as Exhibit
Number USSR-57 (Document Number USSR-57). I request the permission of
the Tribunal to read into the record a very brief excerpt from Chapter 3
of the report of Einsatzgruppe A, entitled “The Jews,” and I would
invite the attention of the Tribunal to the fact that the data presented
in this report refer exclusively to one organization—Einsatzgruppe A. I
quote one paragraph from Page 170 of the document book:
“The systematic task of purging the East was, according to
fundamental orders, the liquidation of the Jews to the fullest
possible extent. This objective has been practically realized,
with the exception of Bielorussia, by the execution of 229,052
Jews. . . . The surviving Jews in the Baltic provinces are
urgently needed for work, and have been quartered in ghettos.”
I interrupt the quotation and read two further excerpts from a
subparagraph, “Estonia,” on Page 2 of the Russian text, which
corresponds to Page 171, Paragraph 2 of your document book. I begin the
quotation:
“The execution of the Jews, insofar as they were not
indispensable for working purposes, was carried out gradually by
forces of the Sipo and the SD. At present there are no Jews left
in Estonia.”
I quote a few brief excerpts from the subparagraphs entitled “Latvia.” I
quote one line from the last paragraph on the second page of the Russian
text, Page 171, Paragraph 5 of the document book. I begin:
“When the German troops entered Latvia, there were still 70,000
Jews left there.”
I break off the quotation and read one line on Page 3, Paragraph 2 of
the Russian text, Page 171, last paragraph of the document book:
“By October 1941 the Sonderkommandos had executed about 30,000
Jews.”