The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
December 3 to December 14, 1945

Twentieth Day: Friday, 14th December, 1945
(Part 2 of 9)

[DR KAUFMANN continues]

[Page 401]

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]


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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