Archive/File: imt/tgmwc/tgmwc-11/tgmwc-11-101.03 Last-Modified: 2000/01/05 Q. So that in 1944 you had to make a still more severe order. Would you look at Document D-762. SIR DAVID MAXWELL FYFE: My Lord, that will become Exhibit GB 298. Q. It says: "The constant increase in acts of terror and sabotage in the occupied territories, committed more and more by bands under unified leadership, compels us to take the sternest counter-measures in a degree corresponding to the ferocity of the war which is forced upon us. Those who attack us from the rear at the crisis of our fight for existence deserve no consideration. I therefore order: All acts of violence committed by non-German civilians in the occupied territories against the German Armed Forces, the S.S. or the Police, or against installations used by them, are to be combated in the following manner as acts of terrorism and sabotage: (1) The troops, the S.S., etc.... are to shoot down on the spot ... all terrorists and saboteurs. (2) Those who are apprehended later are to be handed over to the Security Police and the S.D. office. Accomplices, especially women, who take no active part in the fighting, are to be employed on labour. Children are to be spared." Now, would you look at paragraph 2: "The Chief of the O.K.W. will issue the necessary executive instructions. He is entitled to make alterations and additions as far as the exigencies of war operations require." [Page 78] Did you think that that was a cruel and severe order or not? A. Yes, I did. Q. Now, you had authority to make alteration's and additions. Did you, by your alterations and additions, attempt to mitigate the severity of that order in any way? A. I have no recollection of having issued any additional orders to mitigate its severity. I may also say that I would never have issued anything without first presenting it to the Fuehrer. Q. Just let us see what you did issue. Would you look at Document D-764, which will be Exhibit GB 299, paragraph 4? Now, that is your executive order, countersigned, I think, by the Senior Military Judge, putting forward your order based on that decree, and would you look at paragraphs 4 and 5. "All legal proceedings now going on in connection with acts of terrorism, sabotage or other crimes committed by non-German civilians in the occupied territories which imperil the security or tactical preparedness of the occupying power are to be suspended. Charges are to be dropped. Sentences already pronounced are not to be carried out. The culprits are to be handed over with a report on the proceedings to the nearest local Security Police and S.D. office. In the case of death sentences which have already been legally passed, the regulations now in force will continue to apply. Crimes affecting German interests but which do not imperil the security or tactical preparedness of the occupying power do not justify the retention of jurisdiction over non-German civilians in the occupied territories. I authorise the Commanders of the occupied territories to draw up new regulations in agreement with the higher S.S. and Police Chiefs." And then you ask them to consider a regulation handing them over to the S.D. for forced labour. That was certainly not mitigation of the order, was it? You were not making it any easier. A. There are a few sentences to be added here. This arose out of the daily discussion of these matters, which I dealt with later, on the same lines as the first decree. I made suitable annotations, and signed them. Q. Well, now, that is what you called terrorism and sabotage. Let us look at what happened to people who were guilty of something less than terrorism or sabotage. Look at Document D-763, which becomes Exhibit GB 300. "Non-German civilians in the occupied territories who endanger the security or tactical preparedness of the occupying power otherwise than through acts of terrorism and sabotage are to be handed over to the S.D. Section 1, No. 3 ..." - that is the part that says women will be employed on labour and children will be spared - "of the Fuehrer's order also applies to them." Well, you knew perfectly well what would happen to anyone who was handed over to the S.D., that he would probably be killed, certainly be put into a concentration camp, did you not? A. I did not interpret it that way. The words "employed on labour" were always used; but it has become clear to me from what I have learned here that they frequently ended in the concentration camp. However, it was always described to us - to me - as a labour camp. That was the description, "labour camps of the Secret State Police." Q. But this is August, 1944. You will agree that that is a most severe course to take with people who have been guilty of something less than terrorism or sabotage, do you not? A. Yes. Q. Now, let us A. I assume that you do not wish me to discuss their origin and development [Page 79] here. Otherwise I could explain them, but I will merely answer the question. The answer is, yes, it was a very severe measure. The explanation if I may state, it very briefly, is that, as is known, during the daily situation conference which could last for hours at a time, and covered reports on incidents in all the occupied territories, I received from the Fuehrer instructions and orders which were afterwards set down in a form similar to this document; and I think I have already described in detail the way in which I discussed these things with him and how I worked - that on principle I never issued or signed anything which did not accord in principle with his wishes. Q. That was only severe enough for you for three weeks, was it not, because on 4th September, which is barely three weeks later, you issued another order. This document is D- 766, Exhibit GB 301. Now, this was issued, as it shows, as an agreement with Himmler, Kaltenbrunner, the Reich Minister of Justice and Dr. Lammers. "1. Non-German civilians in occupied territories who have been legally sentenced by German courts for a criminal act against the security or tactical preparedness of the occupying power, and who are in custody in the occupied territories or in the home front area, are to be handed over, together with a report on the facts, to the nearest Security Police and S.D. office. An exception is made only in the case of those sentenced to death for whom the execution of the penalty has been ordered. 2. Persons convicted of criminal acts against the Reich or the occupying power and prohibited, in accordance with the directives issued by the Fuehrer for the prosecution of such acts, from intercourse with the outside world, are to be given a distinguishing mark." Now, had you any idea how many people would be affected by that order? A. No, I cannot say anything about that. I know only that it was made necessary by the increasing dangers in the occupied territories, due to lack of troops to keep order. Q. Well, let me remind you you called a conference to consider this matter. That is shown in Document D-765, and I also show you D-767, the report of the conference. You need not worry about D-765, which just says that there is to be a conference, but in D-767, which will be Exhibit GB 303, there is a report of the conference. The second paragraph says: "The Reichsfuehrer S.S." - Himmler - "demands, in his letter, the immediate surrender to the S.D. of approximately 24,000 non-German civilians who are under arrest or held for interrogation." Now listen to this: "No answer was given to the question raised during the discussion as to why they must be surrendered to the S.D. at that moment, in spite of the considerable amount of administrative work involved." Can you give any answer now as to why 24,000 people who had been sentenced should be transferred to the tender mercies of the S.D.? A. May I read this note? I do not know it. May I read it now, please? Q. Certainly. You will see that I did not trouble you with it all, but it says what I had already put to you earlier, that the "Nacht und Nebel" decrees had become superfluous as a result of the terror and sabotage decree, and that the Wehrmacht legal department had presented these things for discussion. Now, can you give us any answer as to why these 24,000 unfortunate persons who had been sentenced should be handed over to the tender mercies of the S.D.? A. I must say that I am surprised by the whole incident. I did not attend the conference, and apparently I did not read the note since, as a matter of principle, [Page 80] I always marked with my initials every document which was presented to me. I am not acquainted with the figures quoted. This is the first time I have seen them. I am not acquainted with them and I do not remember them, unless another order was ... Q. I will give you something which you have read. A. As regards the facts about which you ask, I must answer in the affirmative. I do not know the figures, only the facts. Q. And you cannot answer my questions. You cannot give us any reason as to why the Wehrmacht and these other offices were handing over these 24,000 people, who had been sentenced by ordinary courts, to the S.D.? You cannot give us any reason for that? A. No. I may say that up to a point I can. I think "S.D." is a mistake. I think police custody was meant. That does not mean the same thing. Q. Certainly not. A. I do not know if it might have been the same thing. Q. Surely you have been at this trial too long to think that handing people over to the S.D. means police custody. It means a concentration camp and a gas- chamber usually, does it not? That is what it meant in fact, whether you knew it or not. A. I did not know it, but it obviously led to the concentration camp in the end. I consider it possible. In any case, I cannot say that it was not. THE PRESIDENT. Sir David, the last paragraph but one refers to the O.K.W. SIR DAVID MAXWELL FYFE: Yes, my Lord, I am just coming to that. BY SIR DAVID MAXWELL FYFE: Q. If you will notice that, defendant, two paragraphs below the one I put to you it states: "As the O.K.W. is not particularly interested in trying the minor matters still remaining for the military tribunals, they are to be settled by decrees to be agreed upon by local authorities." It is quite clear that your office was deeply concerned in this business, was it not, defendant? A. I do not know exactly what it means, but it was obviously mentioned at that conference. Q. Now, before I put the next document, I want you to realise how we have been going. We started with the "Nacht und Nebel" decree, which disappeared; and we went on to the "Terror and Sabotage" decree. We then proceeded to acts which were less than terror and sabotage, but were criminal acts under the rules of the occupying powers. I now want you to consider what was done to people who simply refused to work. Would you look at Document D-769? That is Exhibit GB 304. That is a telegram from Luftwaffe General Christiansen, who was in the Netherlands Commander of the Armed Forces in the Netherlands, through his Chief of Staff. Now listen to this: "Owing to a railway strike, all communications in Holland are at a standstill. Railway personnel does not respond to appeals to resume work. Demands for motor vehicles and other means of transport for moving troops and maintaining supplies are no longer obeyed by the civil population. According to the Fuehrer's decree of 18th August, 1944" - that is the "Terror and Sabotage" decree, which you have already had - "and the supplementary executive instructions of the Chief of the O.K.W.," which we have already seen, "troops may use armed force only against persons who commit acts of violence as terrorists or saboteurs, whereas persons who endanger the security or tactical preparedness of the occupying power in any other way than by terrorism or acts of sabotage are to be handed over to the S.D." [Page 81] Then General Christiansen comes in with this: "This regulation has proved too complicated, and therefore ineffective. Above all, we do not possess the necessary police forces. The troops must again receive authority to shoot as well - with or without summary trial - persons who are not terrorists or saboteurs in the sense of the Fuehrer's decree, but who endanger the fighting forces by passive resistance. It is requested that the Fuehrer's decree be altered accordingly, as the troops cannot otherwise assert themselves effectively against the population, which, in its turn, appears to endanger the conduct of operations." Now, defendant, will you agree that shooting, without or even with trial, railway men who will not work, is about as brutal and cruel a measure as could well be imagined by the mind of man? Do you agree? A. That is a cruel measure, yes. Q. What was your answer to that cruel measure? A. I cannot say. I do not recollect the incident at all, but perhaps there is an answer.
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