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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
9th August to 21st August 1946

Two Hundred and Eighth Day: Wednesday, 21st August, 1946
(Part 5 of 8)

[DR. LATERNSER continues]

[Page 330]

This is shown by Affidavit 259. Affidavits 263, 264, 266, 267, and 269 quote statements by Hitler that he did not want to risk a war on two fronts. Unfortunately, owing to lack of time, I cannot quote the detailed material exhaustively.

Also in regard to the Russian campaign I must limit myself to brief references. According to the reports available, which were given to the generals at the time, it was represented as a preventive war. This is shown from Affidavits 270A to 270N, as well as 271, 272, 274, and 275.

I refer further to Document Mil. 14, Pages 83 to 96 in my Document Book I. The reference is sufficient.

I now turn to the evidence on individual points, which I shall present in the following order:

1. Connections with Einsatzgruppen.

2. Commissar Order.

3. Partisan warfare.

4. Treatment of prisoners.

5. Destruction.

6. Treatment of civilian population.

7. Jurisdiction in the East.

8. The Commando Order.

9. Deportation of labourers.

10. Crimes against rules of warfare and against humanity.

First, the Einsatzgruppen.

The prosecution contends that the Einsatzgruppen were, in every respect, subordinate to the Commander-in-Chief, and has referred to:

1. The testimony of Ohlendorf.

2. The testimony of Schellenberg.

3. Document L-180.

4. Affidavit 16 of General Roettiger, and, finally,

5. Affidavit 18 of SS Fuehrer Rode.

I shall now show the Tribunal that these proofs of the prosecution are not. conclusive. Above and beyond that I shall offer counter-proof that the alleged connections did not exist, so that the crimes committed by the Einsatzgruppen cannot be charged against the persons whom I represent.

First, concerning the testimony of Ohlendorf, I refer to Affidavits 703 and 703A; of General Woehler, which have been translated, and which refute the testimony of Ohlendorf on the points of the charge. I should like to call the attention of the Tribunal particularly to the fact that General Woehler at that time was Chief of Staff of the 11th Army, with whom the witness Ohlendorf alleges that he negotiated in the implicating manner which he describes. The affidavits of General Woehler completely refute the testimony of Ohlendorf.

Second, Affidavit 12 of the witness Schellenberg, submitted by the prosecution as Exhibit USA 557, is based - I should like to call the attention of the Tribunal to this fact - mainly on assumptions. I cross-examined the witness Schellenberg at some length before the Commission; the record of this cross-examination appears on Pages 3524 to 3554 of the Commission transcript, and I should like to ask expressly that the Tribunal refer to it, because it shows that the witness was not in a position to give facts as a basis for his assumptions.

Schellenberg asserts that an agreement between General Wagner and SS Fuehrer Heydrich existed whereby the Einsatzgruppen in the operational area were completely subordinated to the Commanders-in-Chief

[Page 331]

As evidence to the contrary, I submit Affidavit 704 of Judge General Mantel, who spoke with General Wagner, who lost his life in connection with the 20th July, 1944, about this point specifically and received the clear reply that the Einsatzgruppen were not under the military command but only under that of the Reichsfuehrer SS.

In this connection I refer to Document 447-PS, submitted by the prosecution, on Pages 99 and 100 of my Document Book I. In 2 to 2B thereof it is shown clearly that the Reichsfuehrer SS - that is, Himmler - received special assignments in the operational area of the Army, and that within these assignments he was acting independently and on his own responsibility. That is shown on Pages 99 and 100 of my document book, a document which the prosecution itself submitted.

The witness Schellenberg, in Affidavit 12, mentions the close co-operation between Armoured Group IV, under Colonel- General Hoeppner, and the Einsatzgruppen. I should like to call the special attention of the Tribunal to the way in which the testimony on this point came about. During his examination by the prosecution, the report of Einsatzgruppe A was handed to the witness. From the report itself the witness Schellenberg obtained knowledge of this alleged close co-operation, and he then used this knowledge in his affidavit. I should like therefore to quote a part of the cross-examination before the Commission.

"Question - "
THE PRESIDENT: Dr. Laternser, what you are now doing is arguing, is it not? We do not want to hear argument at this stage. I mean, you are referring us now to the case of the prosecution, and you are arguing upon the affidavits which you are producing, that they are satisfactory answers to the prosecution. Well, that is not necessary now.

DR. LATERNSER: I believe, Mr. President, I was misunderstood. I am contrasting assertions of the prosecution and evidence of the defence. To enable the Tribunal to see why I am presenting this evidence, I must show the evidence in its relationship to the charge of the prosecution.

THE PRESIDENT: You have done that already, and you have done it, if I may say so, very satisfactorily. You have given us ten different categories of these individual points, and you are now drawing our attention to your evidence which deals with the Einsatzgruppen. Well, that is all we need; we do not need to have references or argument, at any rate, upon the prosecution's evidence with reference to Einsatzgruppen. If you would continue to give us the references to your affidavits which deal with the Einsatzgruppen, that will be sufficient for us.

DR. LATERNSER: Mr. President, I regret to have to say one more thing. I can conduct my defence either by invalidating the prosecution's evidence or by giving evidence to the contrary. In this case I want to show the Tribunal that the affidavit of the witness Schellenberg - which was presented by the prosecution, and in which the witness speaks of the particularly close co-operation between the Einsatzgruppe and Hoeppner - that this affidavit is not based on the actual knowledge of Schellenberg, but that it -

THE PRESIDENT: I quite understand that. I have got down here that Ohlendorf and Schellenberg are the witnesses for the prosecution who say that the High Command was concerned with and actually commanded the Einsatzgruppen. That is a fact you are contesting, and you are referring us to the evidence which you say contests it. You do not want to give us the prosecution's evidence. You have told us what it is: Ohlendorf and Schellenberg, and Exhibit L-180.

Will you continue?

DR. LATERNSER: May I quote a brief passage from the testimony of Schellenberg?


[Page 332]

DR. LATERNSER: But that is evidence, Mr. President, which I brought out before the Commission, and from which I now want to read a short quotation.

THE PRESIDENT: But, you see, that comes as argument; it is not a mere comment. We want to confine it to a mere comment so that you may explain your evidence. Once you begin to comment upon the evidence of the prosecution, in the opinion of the Tribunal it becomes argument.

Well, if you are short you may refer to this passage; it is suggested that it is your evidence.

DR. LATERNSER: It is very brief.

"Q. Had you no misgivings in using immediately in your testimony, to which you have sworn, documents which had only just been given to you?

"A. Dr. Laternser, what do you mean by 'using'?

"Q. You made this report the subject of your testimony.

"A. Since I was under oath, I of course had to comment on it."

With this quotation I merely want to prove that the knowledge of the witness Schellenberg on this point was not his own knowledge. The witness, in his Affidavit 12, then says that he became convinced that in the Wagner-Heydrich conference the future activity of the Einsatzgruppen, also the planned mass exterminations, were presumably discussed and decided upon. With regard to this point I want to refer to the result of the cross-examination, Pages 3533, 3534 and 3536. It is quite clearly shown there that the witness Schellenberg's assumption that General Wagner and Heydrich in this discussion in 1941 had spoken of planned mass exterminations was formed only in the year 1945.

The witness Schellenberg then says that in June, 1941, he attended an intelligence (Ic) conference which lasted several days, but that he was present only at one of the sessions of this conference. He says in his affidavit that, presumably in the following sessions, the proposed mass exterminations were made known to the intelligence officers, and he adds the further assumption that the Commanders-in- Chief were informed of the planned mass exterminations through these presumably informed intelligence officers. I will now prove to the Tribunal that both these assumptions which Schellenberg expressed in testifying for the prosecution are contrary to the truth.

I present to the Tribunal Affidavits 701 and 701-a, which are available in translation. In Affidavit 701 a participant at this intelligence conference, it is General von Gersdorff, says that planned mass exterminations were not mentioned and the same fact is confirmed in Brig.-General Kleikamp's statement which is also given under oath. In cross-examination I showed one of these affidavits to Schellenberg and I questioned him as follows, I quote from Page 3552. This is one of the few quotations which I should like to make because of its importance.

THE PRESIDENT: What is it that you wanted to refer to? Cross- examination, before the Court?


THE PRESIDENT: Before the Tribunal or what?

DR. LATERNSER: Before the Commission, Mr. President. Very well, I shall dispense with reading it, Mr. President. I only refer the Tribunal to Page 3552 of the evidence taken before the Commission, which has a special bearing on this point.

The affidavit of General Roettiger, Exhibit USA 560, can no longer, in view of the cross-examination before the Commission, be used by the prosecution in the sense in which it wanted to use it. I shall not quote from it although I would very gladly do so, and just refer the Tribunal to Pages 3318 and 3324.

In regard to the testimony of SS Fuehrer Rode, Affidavit 18, Exhibit USA 5631 whom I unfortunately could not cross- examine, I point out that the witness himself

[Page 333]

begins with the words "As far as I know the Einsatzgruppen were completely subordinate ..." As counter-evidence I have 52 affidavits on this point, which I have numbered 701 to 752. Affidavits 704, 705, 707, 710 to 752 make it completely clear that there was never any subordination of the Einsatzgruppen.

Affidavit 706, in addition, shows that Field-Marshal von Kleist, as commander of an army group, on a mere rumour that Jews were being murdered, immediately intervened, summoned the Higher SS and Police Chief and told him that he would not permit excesses against the Jews. This SS Fuehrer assured him that no excesses against the Jews were taking place, and that he had no orders to that effect.

I refer the Tribunal also to Affidavit 709, which shows that Lieutenant-General of the armoured troops Freiherr von Schweppenburg immediately expelled from the operational area the leader of an Einsatzkommando when the latter came to him and said that he had been entrusted with the settling of political matters.

I refer now to Affidavit 712-a of General von Knobelsdorff. This general ordered the arrest of an SD Fuehrer who wanted to have 50 to 60 persons shot because, according to statements of confidential agents, they were anti-German and intended to carry out acts of sabotage against the German troops. In this connection one piece of evidence seems of special importance, namely Affidavit 1637 of General Kittel. According to this affidavit, the Volksdeutsche mayor of Marinka was condemned to death by a court martial and shot for crimes committed against a Jewess. How could the sentence on this man be explained if on the other hand the military leaders had ordered or tolerated the murder of many thousands of Jews?

Finally, I refer to the testimony of all witnesses before the Commission who testified that the Einsatzgruppen were not subordinate to the Wehrmacht.

Now, the Commissar Order. On this subject the prosecution submitted affidavit 24, Exhibit USA 565, of Colonel von Bonin, according to which this order was valid for all units of the Eastern Army. But the same affidavit shows that the commanding general of the 47th Panzer Corps, General Lemelsen -

THE PRESIDENT: Dr. Laternser, you are commenting upon evidence of the prosecution. You are commenting upon Exhibit USA 565. At least, so I understand it.

DR. LATERNSER: Mr. President, I believe I was misunderstood. I was only referring to a part of this document to which the prosecution did not refer.

THE PRESIDENT: Well, the affidavit is in evidence I suppose, and it is evidence for the prosecution, and you are commenting upon it and that is not what we want you to do. We want you to present your evidence. Go on, please.

DR. LATERNSER: I have more affidavits refuting the charge of the prosecution with regard to the Commissar Order. I handed a total of 82 affidavits pertaining to this point to the Commission, they are numbered 301 to 382. I would actually prefer to go into this point in more detail, but in order to save time I shall not do so, but shall merely refer to special points to which I have to draw the Tribunal's attention.

The testimony of General Warlimont in Affidavit 301-a shows the resistance against the order already at the time when it was being drawn up in the OKW and OKH and the unsuccessful attempt to prevent its issue. The Chief of the General Staff of the Army, General Zeitzler, immediately protested to Hitler against this order, and it was thanks to his energetic protests that the order was rescinded. That is shown by Affidavit 302-b. I ask that I may be allowed to quote one paragraph from this important document, it is 301- b.

THE PRESIDENT: 302-b, I thought, which is it?

[Page 334]

DR. LATERNSER: I believe there is a mistake. In the list which you have, Mr. President, this document has been numbered 301-b.



"After I took up my duties as Chief of the Army General Staff I had, privately, a very serious and frank conversation with Adolf Hitler about this order, and we viewed it from all sides. At the time Adolf Hitler was, as I remember, very much impressed by this discussion; that encouraged me, because otherwise he never changed his opinion in such matters once it had been formed, and cut short any person who referred to them. For that reason I returned to this question several times, and I believe I succeeded in altering his opinion."
Of the remaining affidavits I should like to refer particularly to Affidavit 315. This shows that General Hoeppner, the Commander-in-Chief of Armoured Group IV, acted in the same way in which the other Commanders-in-Chief acted, that is, he did not carry out the order.

Then I refer to Affidavits 324-a, b, and c. With these documents I refute the Russian accusation on Page 4401 and on Page 1 of the Exhibit USSR 62. Lieutenant-General of armoured troops Nehring expressly confirms in this affidavit that the order was not carried out in the area under his command. This testimony is corroborated by Affidavit 336.

THE PRESIDENT: Go on, Dr. Laternser.

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