The Nizkor Project: Remembering the Holocaust (Shoah)

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Q. Witness, did you know anything about the Einsatzgruppen
and Einsatzkommandos of the Security Police and the SD in
the East, as they have been mentioned here in this trial?

A. I knew nothing about them. I only knew that Security
Police were stationed in the operational zone in the East,
where they carried out security measures; that, I believed,
was the task of the Security Police in that area. The legal
system never knew of any other orders in that connection,
and it was only here that we heard of these things for the
first time.

Q. Was it possible for members of the Waffen SS to leave the
Waffen SS if they did not agree with the tasks which they
were given, or the orders which were issued?

A. A possibility of this sort did not exist at all. Duty in
the Waffen SS was military duty, legally established and
legally recognized. Even members of the Waffen SS who had
joined as volunteers were later, through the relationship
between the Waffen SS and the Wehrmacht, bound by compulsory

                                                  [Page 353]

service. It was therefore possible to leave the Waffen SS
only by means of desertion, and then the deserter would have
had to expect the full consequences of the law.

Q. It is stated by the prosecution that the criminal
activities of the SS were so extensive and applied to so
many cases of illegal acts that their illegality could not
have remained hidden from the members of the SS. Is that

A. The SS was not a single unit. I have already described
the various organizations of the SS, and into the individual
organizations, other than his own, a member of the SS had no
insight. The average member of the SS had no possible way of
knowing of the illegality of the General SS or the Waffen
SS. He never saw such crimes committed, and so he could
never hold the belief that he belonged to a criminal
organization. He could actually not have had any idea of the
crimes which have been established here.

DR. PELCKMANN: Your Lordship, finally, may I be allowed to
put one question to the witness, arising from the fact that
together with a staff he was occupied with the compiling of
affidavits. If the High Tribunal desires to hear how these
affidavits were obtained and compiled, then this witness can
give information about it.

THE PRESIDENT: Yes, very well. You may ask him.


Q. One hundred and thirty-six thousand two hundred and
thirteen affidavits were compiled and entered on printed
forms in various files, together with a survey of the
various fields dealt with, and a numerical classification of
the affidavits in the individual groups of subjects. Who
compiled those affidavits?

A. They were evaluated and compiled under my direction by
fifteen SS internees who were judges. Some 170,000 of the
statements submitted were utilised. Of these, 136,213
affidavits and applications to appear as a witness were
compiled to form a collection of documents. The rest are
only requests for a hearing, etc. Those 136,000 statements
in the collection were divided into various subjects, and
they form part of the defence case of the SS.

Q. Where did you obtain this considerable number of

A. Mostly from camps in the American and British zones; to a
smaller extent, from the French zone; none at all from the
Russian zone and from Austria.

Q. What procedure did you adopt in evaluating and compiling
these affidavits?

A. I have just explained that in outline.

Q. Yes, we do not need details. Thank you. Did the selection

THE PRESIDENT: Dr. Pelckmann, what I understood the witness
to say was that there were 170,000 statements utilised, and
somehow, from these 170,000 statements, 136,000 affidavits
were obtained. Well, how were they obtained? The Tribunal
would like to know. Before whom were they sworn?

DR. PELCKMANN: The witness will be able to explain that, Mr.

THE WITNESS: These 170,000 affidavits were sworn by interned
members of the SS. Of this total figure of 170,000, 136,213
affidavits were, in fact, utilised by my colleagues. The
remaining affidavits were not used, because they were either
irrelevant or submitted inaccurately or too late.

THE PRESIDENT: You mean the whole 170,000 were sworn

DR. PELCKMANN: Sworn before whom, witness?

THE WITNESS: Part of these 170,000 affidavits were not
sworn. The 136,000 affidavits, however, were all sworn. We
knew the decision of the High Tribunal that an affidavit
sworn before a German lawyer would only be valid if it had
been sworn before May of this year, and that after May of
this year affidavits would have to be sworn before an Allied
officer. That, however, was not done in all the

                                                  [Page 354]

camps. After May, 1946, some affidavits were still sworn
before lawyers and courts and in accordance with the
decision of the High Tribunal those had to be discarded as
invalid. For that reason, only 136,000 affidavits remained.


Q. Were the affidavits selected and evaluated on the basis
that only affidavits  favourable to the defence of the SS
should be considered?

A. No, all affidavits were fully considered.

Q. How is it that on some subjects many thousands of
statements are available, whereas on others only a few
affidavits are contained in the list.

A. From the mass of the affidavits submitted, it is evident
that the bulk of the SS members did, not understand the
Indictment. They cannot imagine, for example, that they were
active in a conspiracy; they cannot imagine that they were
preparing a war of aggression. For that reason, members of
the SS testified only on such subjects as appeared to them
typical of their work in the SS, the serviceman at the front
on his experiences at the front, and the member of the
General SS on the type of his work in the years from 1933 to

Q. To give an example - the Tribunal will be able to see it
later from the affidavits - for instance, under Roman figure
IV, Nos. 1-9. Here is the question: "Was vexatious treatment
in concentration camps forbidden?" Now, if there are only
two statements on this point, does that mean that only two
out of hundreds of thousands of members of the SS can
confirm this prohibition, and that all others, and this
would be important, know the opposite to be true?

A. No, that is just what it does not mean. It does mean that
the members of the SS who were questioned could not make a
statement on that point at all, because they did not know
anything about it; they could give an answer neither in a
negative nor in an affirmative sense, and for that reason
they passed over it: Without making any statement at all.

Q. Do you think, judging with your knowledge of the various
parts of the SS and their activities and of the attitude of
the bulk of the SS men, that these 136,000 affidavits or so
represent the average knowledge of the bulk of the SS men,
even though the entire strength of the SS was, of course,
considerably above that.

A. One must note that most of the men and junior officers
who represent the bulk had already been released at the time
when the affidavits were deposed. It must also be considered
that in many camps a great many technical difficulties
existed and that in many camps the subjects of questioning
were not uniform. In addition, statements of opinion from
the Russian zone and from Austria are missing altogether. In
spite of these considerable deficiencies, I believe that I
can say, on the strength of my own knowledge of the typical
activities of the SS, that the whole picture which these
affidavits present can be considered as typical of the SS.

DR. PELCKMANN: Your Lordship, I have no further questions to
put to this witness.

THE PRESIDENT: The Tribunal will adjourn.

(A recess was taken.)

DR. LATERNSER: Mr. President, may I ask for permission to
put a question to the witness in order to clear up one point
which came up during this examination? It will take about
three minutes.

THE PRESIDENT: What is the point, Dr. Laternser?

DR. LATERNSER: I should like to ask the witness about a
point which came up during the direct examination by the
defence counsel for the SS, and which concerns the guarding
of concentration camps.

THE PRESIDENT: How does that affect the High Command?

                                                  [Page 355]

DR. LATERNSER: There could be a connection through the
higher official channels, a connection which might possibly
incriminate the accused organization.

THE PRESIDENT: No, Dr. Laternser, the Tribunal rejects your

THE PRESIDENT: Does the prosecution wish to cross-examine?


Q. Witness, you were an SS man from 1933 on, were you not?

A. Yes.

Q. And during most of that time you were connected with the
SS legal system?

A. Yes.

Q. Would a serious view have been taken in the Waffen SS or
the German Army about the murder of Jews by SS men?

A. I did not understand the question.

Q. I will repeat it. Would a serious view have been taken in
the Waffen SS or the German Army about the murder of Jews by
SS men?

A. If the extermination of the Jews on Hitler's orders had
been known in the SS, or, as you say, in the Wehrmacht, I am
certain that there would have been concern.

Q. If an SS man had murdered fifty Jews, would that have
resulted in a death penalty being inflicted on him?

A. I cannot answer this question in simple words, because it
touches on a basic problem.

Q. I want you to look at the document dated the 14th of
September, 1939, which shows the tolerance of murder in the
SS by the highest judicial authorities and the German Army.
It is D-421 which will be Exhibit GB 567. The first page of
the memorandum:

  "The Chief of the Army judiciary announces by telephone.
  The Field Court Martial of the Kempf Armoured Division
  has sentenced an SS man of the SS Artillery Regiment to
  three years' imprisonment and a military police sergeant-
  major to nine years' penal servitude for manslaughter.
  After about fifty Jews, who had been used during the day
  to repair a bridge, had finished their work in the
  evening, these two men drove them all into a synagogue
  and shot them all without any reason. The sentence is
  submitted to the Commander-in-Chief of the 3rd Army for
  confirmation. The proposal of the representative of the
  prosecution is capital punishment for murder." Then there
  follow initials. Then there is a marginal note: "General
  Halder requests information on the decision of the
  Commander-in-Chief of the 3rd Army." Then purple pencil
  notes: "To the Adjutant of the Commander-in-Chief of the
  Army." And on the next page you will see the course of
  this history. "Telegram to the Military Judge of the 4th
  rank attached to the Quartermaster General in Berlin. SS
  man Ernst is granted extenuating circumstances because he
  was induced to participate in the shooting by a corporal
  handing him a rifle. He was in a state of irritation
  owing to numerous atrocities committed by Poles against
  persons of German race. As a SS man, particularly
  sensitive at the sight of Jews, to the hostile attitude
  of Jewry to the Germans, he therefore acted quite
  thoughtlessly in a youthful spirit of adventure. An
  excellent soldier not punished before." And that is
  signed by the military judge of the 3rd rank Lipski. And
  then there are purple pencil notes on the document, "To
  the Adjutant of the Commander-in-Chief of the Army,"
  pencil note, "Telephone call from Oberkriegsgerichtsrat
  Dr. Sattmann to the effect that so far as has been
  ascertained the C.-in-C. of the Army H.Q. will not
  confirm both sentences." Then added, in pencil, "The
  sentences have been dropped under the amnesty. Punishment
  was announced before the amnesty. Nine years' penal
  servitude for the police

                                                  [Page 356]

  sergeant-major changed to three years' imprisonment.
  Three years' imprisonment for SS man unchanged. Confirmed
  by Army Headquarters."

Now, that was a clear countenancing of mass murder by the
judicial authorities of the German Army, was it not?

A. This document, as I understand it, in the second part
regarding the explanation for the mild sentences on the two
SS men, is a personal opinion of Kriegsgerichtsrat Lipski,
who, as the presiding judge, passed the sentences.
Therefore, since I do not know other details of the case; I
am not in a position to say whether the reasons which the
presiding judge gives deviate from the facts or not.

Q. But - just for a moment. Do you appreciate that for the
murder of fifty Jews - and if the facts as reported in this
German document are true, it could have been nothing but
murder - there was, first of all, a finding of manslaughter.
You as a lawyer will appreciate what I am implying - and
secondly that this ... that army judge passed a sentence of
three years' penal servitude for the murder of fifty. He was
one of your legal colleagues of the Army, and I suggest to
you that this is typical of your attitude - particularly
that of the SS and the Army's judicial authorities - to the
murder of what you were pleased to call subhumans.

A. May I say the following: A question of law, whether the
verdict is based on manslaughter or on murder, is
undoubtedly at issue here. The actual grounds which caused
the judge to convict the man of manslaughter instead of
murder are not indicated in the document. For that reason, I
cannot take a stand on the question put to me.

Q. But you know it is indicated perfectly clearly. The
reason why it, was reduced to manslaughter was that this man
Ernst, being an SS man, was particularly sensitive at the
sight of Jews, and therefore it was just a youthful
adventure - that is what was operating in the judge's mind.
You know it is perfectly clear? You -

A. I should like to say this: As the document states, the
prosecution in the case asked for a verdict of murder and
for the death sentence. The presiding judge did not, in his
verdict, convict the men of murder but of manslaughter.
According to the German Penal Law, the difference between
manslaughter and murder is that murder is an action carried
out after previous deliberation with the aim of killing a
person, while manslaughter is an act of emotion, resulting
in the death of a person. The judge after considering the
circumstances here based his verdict on this latter legal

Q. Witness, I am obliged to you for your dissertation on the
difference between manslaughter and murder. I think the
Tribunal is familiar with it. But, at any rate, the end of
this story was that the Army Commander-in-Chief would not
confirm the sentences.

A. That is correct.

Q. The sentences were dropped under the amnesty. That is the
end of this - this suit of murder by the army judicial
authorities, amnesty and pardoning of the whole thing. I
want you - I want you now to turn to another document so
that the Tribunal can judge how zealous the German
authorities were in the pursuit of the SS crimes. It is D-
926, to be Exhibit GB 568. This comes from an earlier
period, not from the days when the Poles or the others, who
you said were responsible, were operating. These were the
pioneer days of the SS, 1933, when you joined them. This is
a file relating to the deaths of prisoners in protective
custody at the concentration camp of Dachau. It starts with
a letter dated 2nd June, 1933 from the Provincial Court
Public Prosecutor to the State Ministry of Justice. It is
headed: Deaths of prisoners in protective custody at the
concentration camp of Dachau. It relates to the Schloss,
Hausmann, Strauss and Netzger cases:

[Continued in Part 4 of 10]

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