The Nizkor Project: Remembering the Holocaust (Shoah)

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This spirit of truth hovers also over Article 19, and is its
irrevocable content. The objections I raised to the
testimony of the witness in question seem to me so
justified, that the important principle of speed should be
confronted with the principle of truth and should withdraw
in its favour. It is a question of humanity. Humanity is in
question here, and we want to find the truth for our
children. If such testimony remains uncontradicted for
months, then a part of mankind might despair of humanity and
also the German people in particular, would suffer.

DR. BERGOLD (Counsel for defendant Bormann): If it please
the Court, I am Dr. Bergold, defence counsel for Bormann.

In this debate I should like to bring up one other point. It
appears important to me because it has apparently been the
source of this debate. According to our system of
jurisprudence the prosecution has the duty of producing not
only the incriminating evidence but also that which serves
to help the defendants. I can well understand that the
defence counsel for Kaltenbrunner protests because the
prosecution failed to mention an important point, namely,
that the German authorities indicted this inhuman S.S.
leader and his wife and condemned them to death. It is
highly probable that the prosecution knew of this fact, and
that the horrible exhibits of erring human nature, as
presented to us, were found in the files of the German
Courts.

I believe this entire debate would not have arisen if the
prosecution had made the statement that the German
authorities themselves passed judgment against so inhuman a
character, and condemned him to death.

We find ourselves here in difficulties because, in contrast
to our procedure, the prosecution for the most part simply
presents incriminating evidence and on the basis of a single
document or a single witness - but, of its own accord,

                                                  [Page 402]

does not produce the exculpating evidence which may present
itself in the introduction of evidence. If that procedure
had been followed in this present case, and if the
prosecution had stated that this man had been condemned to
death, then, first of all, the impression about
Kaltenbrunner would have carried less weight, and public
opinion, on the whole, would have been left with a different
impression. Then my colleague Kauffmann would presumably
have limited himself in this case to proving in the further
course of this trial that Kaltenbrunner had nothing to do
with this matter; but the inhuman character of the procedure
and the terrible impression which it made on us would have
been avoided.

THE PRESIDENT: Will you explain the part of the German law
to which you were referring, where you say it is the duty of
the prosecution, not only to produce evidence for the
prosecution, but also to produce evidence for the defence.

DR. BERGOLD: That is a general principle of jurisprudence.
In Paragraph 161 of the Reich Penel Code that has been
established. That is one of the basic principles of law that
we have in Germany in order to -

THE PRESIDENT: Give me that reference again.

DR. BERGOLD: Paragraph 161. This principle, according to
German law, is to make it possible that against an accused
person who frequently, when he -

THE PRESIDENT 161 of what ?

DR. BERGOLD: Reichsstrafprozessordnung (Reich Penal Code).
The same thing is true of Austria. There is a similar
paragraph in the Austrian Penal Code. This principle is
supposed to permit that a defendant should have the whole
truth said about him, since frequently he himself is not in
a position to produce all the evidence in his favour.
Therefore, German law has commissioned the prosecution to
present exculpating evidence also, along with its
incriminating evidence.

DR. KUBUSCHOK (Counsel for defendant von Papen): The
question of Pfaffenberger does not concern the defendant von
Papen specifically, because that part of the Indictment does
not apply to his case. I am simply discussing this question
in respect to the principle. I believe that the practical
effect of the opinions expressed by the prosecution and the
defence counsel cannot be of very great importance. Mr.
Justice Jackson agrees with us that every witness whose
affidavit can be presented can be called as a witness by the
defence if he is available. In every case in which the
defence holds that an affidavit, evidence of secondary
value, is insufficient, and that only first-hand evidence,
such as oral testimony given by the witness, should be
taken, there would always be a duplication of the evidence-
taking; namely, the reading of the affidavit, and the
hearing and cross-examination of the witness. This
undoubtedly would lead to a prolongation of the trial. In
each such case, the Court would, right from the outset,
object to the reading of the affidavit, in order to prevent
this delay. Consequently it is probably futile for the
prosecution to present affidavits where it can be expected
that the witness will later be heard again.

I believe that the prosecution does not need in any way to
be worried about this. It is a matter of course that we, the
defence, want nothing but that which we assume to be true in
the case of the prosecution also; namely, that conduct of
the trial which is as speedy as possible, but which is also
as safe

as possible in regard to the establishment of the truth.
And, finally, if in a trial evidence is introduced by means
of an affidavit, which can be a monstrous source of
untruths, if such evidence is introduced first, it is
natural that this evidence will have to be clarified in a
more complicated and time-consuming fashion at a later date,
when the witness is examined.

THE PRESIDENT: The Tribunal will consider the objection that
has been raised when the Court adjourns.

MR. JUSTICE JACKSON: May I have one word?

THE PRESIDENT:  Mr. justice Jackson, it is unusual to hear
counsel who opposes an objection, a second time.

MR. JUSTICE JACKSON: I merely want to give you the answer to
the question which you asked me as to the whereabouts of
Pfaffenberger. My information is that these affidavits were
taken by the American Army at the time it liberated the
people in these concentration camps, when the films were
taken and the whole evidence that was available was
gathered. This witness was present at the concentration
camp, and at that time his statements were taken. We do not
know his present whereabouts, and I see no reasonable
likelihood that we will be able to locate him within any
short time. We will make an effort.

MR. ROBERTS: May it please the Tribunal, might I endeavour
to assist? I  think I have now found the German order to
which the defence counsel referred, Paragraph 161. It is, of
course, an order in German. Perhaps I might hand it up, and
the Court translators will no doubt deal with the paragraph.

MR. JUSTICE JACKSON: I think one bit of additional
information must be furnished, in view of the statements
made here that we have information that we are withholding.
Kaltenbrunner has been interrogated. At no time has he made
such a claim, so I am advised by our interrogators; and
under the Charter our duty is to present the case for the
prosecution. I do not, not in any purpose, serve two
masters.

THE PRESIDENT: Now, I call upon Major Walsh. Major Walsh,
did you give a lettering to the document books with which
you are dealing?

MAJOR WALSH: Yes. If your Honour please, it is the letter
"T".

May it please the Tribunal, during the last session the
prosecution presented briefly the preliminary steps leading
to the ultimate objective of the Nazi Party and the Nazi
controlled State, that is, the extermination of the Jews.
Propaganda, decrees, the infamous Nuremberg Laws, boycotts,
registration and the creation of ghettos were the initial
measures in the programme. I shall, with the Court's
permission, continue with a discussion of the methods
utilised for the annihilation of the Jewish people.

I would like first to discuss starvation. Policies were
designed and adopted to deprive the Jews of the most
elemental necessities of life. Again the defendant Hans
Frank, then Governor General of Poland, wrote in his diary
that hunger rations were introduced in the Warsaw Ghetto
and, referring to the new food regulations in August, 1942,
he callously, and perhaps casually, noted that by these food
regulations he virtually condemned more than 1,000,000 Jews
to death. I offer in evidence that part of Document 2233 E-
PS, Diary of Hans Frank, Conference Volume, 24th August,
1942, Exhibit USA 283.

                                                  [Page 404]

And I quote:-

   "That we sentence 1,200,000 Jews to die of hunger should
   be noted only marginally. It is a matter of course that,
   should the Jews not starve to death, it would, we hope,
   result in a speeding-up of the anti-Jewish measures."

Frank's diary was not the only guide to the deliberate
policy of starvation of the Jews. They were prohibited from
pursuing agricultural activities in order to cut them off
from access to the source of food. I offer Document 1136-PS
in evidence, Exhibit USA 284. I refer the Court to Page 4 of
the translation, marked with the Roman numeral V, Paragraphs
(a) and (b). The document is entitled "Provisional
Directives on the Treatment of Jews", and it was issued by
the Reichskommissar for the Ostland, I read:-

   "Jews must be cleaned out from the countryside. The Jews
   are to be removed from all trades, especially from trade
   with agricultural products and other foodstuffs".

Jews were excluded from the purchase of basic food, such as
wheat products, meat, eggs and milk.

I offer in evidence Document 1347-PS, Exhibit USA 285, and I
quote from Paragraph 2, on the first page of the translation
before the Court. This is an original decree dated 18th
September, 1942, from the Ministry of Agriculture. I quote:-

   "Jews will no longer receive the following foods,
   beginning with the 42nd distribution period (19th
   October, 1942): meat, meat products, eggs, wheat
   products (cake, white bread, wheat rolls, wheat flour,
   etc.), whole milk, fresh skimmed milk, as well as such
   food distributed not on food ration cards issued
   uniformly throughout the Reich, but on local supply
   certificates or by special announcement of the Nutrition
   Office on extra coupons of the food cards.
   
   Jewish children and young people over ten years of age
   will receive the bread ration of the normal consumer".

The sick, the old, and the pregnant mothers were excluded
from the special food concessions allotted to non-Jews.
Seizure by the State Police of food shipments to Jews from
abroad was authorised, and the Jewish ration cards were
distinctly marked with the word "Jew", in colour, across the
face of the cards, so that the storekeepers could readily
identify and discriminate against Jewish purchasers.

The Czechoslovakian Government published in 1943 an official
document entitled "Czechoslovakia Fights Back". I offer this
book in evidence, Document 1689-PS, Exhibit USA 286. To
summarise the contents of Page 110, it states that the
Jewish food purchases were confined to certain areas and to
certain days and hours. As might be expected, the period
permitted for the purchases was during the time when food
stocks were likely to be exhausted.

By Special Order No. 44 for the Eastern Occupied
Territories, dated 4th November, 1941, the Jews were limited
to rations as low as only one-half of the lowest basic
category of other people, and the Ministry of Agriculture
was empowered to exclude Jews entirely or partially from
obtaining food, thus exposing the Jewish community to death
by starvation.

I now offer in evidence Document L-165.

                                                  [Page 405]

THE PRESIDENT: Did you read anything from 1689-PS?

MAJOR WALSH: Just to summarise, sir, the contents of Page
110.

THE PRESIDENT: I see. Now you are offering L -

MAJOR WALSH: L-165, your Honour, Exhibit USA 287.

I refer the Court to the last half of the first paragraph of
the translation. This is a Press bulletin issued by the
Polish Ministry of Information, dated 15th November, 1942.
The Polish Ministry concludes that, upon the basis of the
nature of the separate rationing and the amount of food
available to Jews in the Warsaw and Cracow ghettos, the
system was designed to bring about starvation, and from the
quotation I read:-

   "In regard to food supplies they are brought under a
   completely separate system, which is obviously aimed at
   depriving them of the most elemental necessities of
   life".

I would now like to discuss annihilation within the ghettos.
Justice Jackson in his opening address to the Tribunal made
reference to Document 1061-PS, "The Warsaw Ghetto is No
More", marked Exhibit USA 275.

This finest example of ornate German craftsmanship, leather
bound, profusely illustrated, typed on heavy bond paper, is
the almost unbelievable recital of a proud accomplishment by
Major General of the Police Strupp, who signed the report
with a bold hand. General Strupp in this report first pays
tribute to the bravery and heroism of the German forces who
participated in the ruthless and merciless action against a
helpless, defenceless group of Jews, numbering, to be exact,
56,065, including, of course, the infants and the women. In
this document he proceeds to relate the day-by-day account
of the ultimate accomplishment of his mission - to destroy
and to obliterate the Warsaw Ghetto.

According to this report, the ghetto, which was established
in Warsaw in November, 1940, was inhabited by about 400,000
Jews, and prior to the action for the destruction of this
ghetto, some 316,000 had already been deported. The Court
will note that this report is approximately 75 pages in
length, and the prosecution believes that the contents are
of such striking evidentiary value that no part should be
omitted from the permanent records of the Tribunal, and that
the Tribunal should consider the entire report in judging
the guilt of these defendants.

The defendants were furnished with several photostatic
copies of the document at least 20 days ago, and have had
ample time, I am sure, to scrutinise it in detail. If the
Court, in the exercise of its judgment, determines that the
report may be accepted in toto, the prosecution believes
that the reading of a portion of the summary, together with
brief excerpts from the daily teletype reports, will suffice
for the oral record. I would like the Court to examine it,
and I present it to the Court, together with the duplicate
original thereof, and ask that the Court rule that the
entire document may be accepted.

THE PRESIDENT: Major Walsh, the Court will take that course,
provided that the prosecution supplies, as soon as possible,
both to the Soviet and to the French members of the
Tribunal, copies in Russian and French of the whole
document.

MAJOR WALSH: Yes, sir; may I consult with -

THE PRESIDENT: I do not say present immediately, but present
as soon as possible.

                                                  [Page 406]

MAJOR WALSH: Yes.

THE PRESIDENT: You are going to read the passages that you
think necessary?

MAJOR WALSH: Yes. From Page 6 of the translation before the
Court of Document 1061-PS I would like to read the boastful
but none the less vivid account of some of this ruthless
action within the Warsaw Ghetto. I quote, second paragraph,
Page 6:

   "The resistance put up by the Jews and bandits could be
   broken only by relentlessly using all our forces and
   energy by day and night. On 23rd April, 1943, the Reich
   Fuehrer S.S. issued through the Higher S.S. and Police
   Fuehrer East at Cracow his order to complete the combing
   out of the Warsaw Ghetto with the greatest severity and
   relentless tenacity. I therefore decided to destroy the
   entire Jewish residential area by setting every block on
   fire, including the blocks of residential buildings near
   the armament works. One concern after another was
   systematically evacuated and subsequently destroyed by
   fire. The Jews then emerged from their hiding places and
   dug-outs in almost every case. Not infrequently the Jews
   stayed in the burning buildings until, because of the
   heat and the fear of being burned alive, they preferred
   to jump down from the upper stories after having thrown
   mattresses and other upholstered articles into the
   street from the burning buildings. With their bones
   broken they still tried to crawl across the street into
   blocks of buildings which had not yet been set on fire,
   or were only partially in flames. Often the Jews changed
   their hiding places during the night by moving into the
   ruins of burnt-out buildings, taking refuge there until
   they were found by our patrols. Their stay in the sewers
   also ceased to be pleasant after the first week.
   Frequently from the street we could hear loud voices
   coming through the sewer shafts. Then the men of the
   Waffen S. S., the Police, or the Wehrmacht Engineers
   courageously climbed down the shafts to bring out the
   Jews and not infrequently they then stumbled over Jews
   already dead, or were shot at. It was always necessary
   to use smoke candles to drive out the Jews. Thus one day
   we opened 183 sewer entrance holes and at a fixed time
   lowered smoke candles into them, with the result that
   the bandits fled from what they believed to be gas into
   the centre of the former ghetto, where they could then
   be pulled out of the sewer holes there. A great number
   of Jews who could not be counted were exterminated by
   blowing up sewers and dug-outs.
   
   The longer the resistance lasted, the tougher the men of
   the Waffen S.S., Police, and Wehrmacht became. They
   fulfilled their duty indefatigably in faithful
   comradeship and stood together as models and examples of
   soldiers. Their duty hours often lasted from early
   morning until late at night. At night search patrols,
   with rags wound around their feet, remained at the heels
   of the Jews and gave them no respite. Not infrequently
   they caught and killed Jews who used the night hours for
   supplementing their stores from abandoned dug-outs and
   for contacting neighbouring groups or exchanging news
   with them.
   
   Considering that the greater part of the men of the
   Waffen S.S. had only been trained for three to four
   weeks before being assigned to this action, high credit
   should be given to the pluck, courage and devotion
   
                                                  [Page 407]
   
   to duty which they showed. It must be stated that the
   Wehrmacht Engineers, too, executed the blowing up of dug-
   outs, sewers and concrete buildings with
   indefatigability and great devotion to duty. Officers
   and men of the Police, a large part of whom had already
   been at the front, again excelled by their dashing
   spirit.
   
   Only through the continuous and untiring work of all
   involved did we succeed in catching a total of 56,065
   Jews whose extermination can be proved. To this should
   be added the number of Jews who lost their lives in
   explosions or fires, but whose number could not be
   ascertained."



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