To be sure, this document has been admitted as evidence. This admission as evidence, however, does not relieve the Court of the obligation of examining the value of this Operational Situation Report as evidence. It is true that according to Ordinance No. 7 the Military Tribunals are not bound to any rules governing the taking of evidence. By this, however, it was obviously not meant that the Military Tribunal can set itself above well established rules of taking evidence, well established rules which alone are a guaranty for an investigation of the truth, and with it for a just decision. This was also expressed by Military Tribunal IV in the recent verdict against Flick, et al., on page 7 of this verdict .(2)
1. This single document, which comes into consideration as evidence against Naumann insofar as executions within the territory of Einsatzgruppe B are mentioned therein, contains the following violations of the basic rules for the taking of evidence, which must be considered as well established and therefore must be observed if the truth is to be arrived at.
The contents of the document are not derived from the actual observations of the author of the document. The author of this document belonged neither to the staff of Einsatzgruppe B nor to a Sonderkommando or Einsatzkommando. He was not even in Russia, but compiled the document in the office in Berlin, for, as I have already mentioned the operational situation reports were prepared, in the form in which they are presented here, by members of office IV of the Reich Security Main Office in Berlin. It is not known from what records this document has been compiled. Furthermore, the identity of the author is not known, so that there is no knowledge about whether it was a reliable person who had compiled the operational situation reports with the requisite care.
It is also not known if the document was compiled from reports which were made by persons who were reporting on things they
1. Complete closing statement is recorded in mimeographed transcript 6 February 1948, pp. 5812-5862.
2. United States vs. Friedrich Flick, et. al. See Vol VI.
had themselves observed. According to the evidence taken, this is even improbable. Therefore it is a matter of hearsay evidence, which is inadmissible according to the rules for taking evidence in all civilized countries, because hearsay evidence contains so many false sources that a just decision cannot be founded on it. Hearsay evidence itself is inadmissible according to all the recognized rules for the taking of evidence. But as we must assume, in this document it is a matter of hearsay evidence of the third, fourth, or even a higher degree. Furthermore, the document is not signed.
The authenticity of a document has to be proved furthermore according to the recognized rules of court procedure, and this by a witness who will be faced by the defendant and who then also states specifically under oath, where the document was found. This condition has also not been fulfilled. It is therefore more than doubtful whether the facts reported in the operational situation reports actually occurred.
Every defendant is favored by the legal assumption of innocence and a claim to a procedure in which all rules of the law of procedure are adhered to. It is in no way intended to disclaim the assertion that executions were carried out by the Einsatz- and Sonderkommandos subordinate to the Einsatzgruppe while Naumann was chief of Einsatzgruppe B. The defendant Naumann did not disclaim this assertion during his interrogation as a witness. But on account of the explained violations against recognized rules of procedure the offered document does not give proof of the fact that executions were carried out to the extent stated in the operational situation report, especially under the circumstances stated there. It can rather be merely considered as proved that executions took place in which the number of executed persons and the detailed circumstances have not been ascertained. Especially the numbers of executions appear much too high. This is shown by the fact that during the period covered by the report in the sphere of influence of Einsatzgruppe B, the Fuehrer order had been carried out for quite some time already under Nebe, the predecessor of Naumann as testified to by the defendants Blume and Stelmle. It appears therefore as absolutely believable if Ott for instance, who in March 1941 was commander of Sonderkommando 7b with Einsatzgruppe B, declares that at the time he took over Sonderkommando 7b there was no further action to register any Jews.
Ott, just like Naumann, doubted the numbers mentioned in the Operational Situation Report dated 21 April 1943 while in the witness stand. The soundness of the reasoning given in this respect is not to be rejected offhand. Ohlendorf and Nosake also
doubted the reporting. Worth mentioning in this respect is that Ohlendorf too declared while in the witness stand that the execution of Jews and Communists happened in the first part of the campaign more often than in the year 1942. As evidence of the fact that the numbers mentioned in the operational situation reports do not have an absolute value as evidence, reference may finally be made yet to the affidavit of Fumy who is very well acquainted with the matter as he collaborated in the compilation of the operational situation report, and who due to his own observations is best able to judge whether these reports are reliable. If Naumann states therefore on the witness stand that according to its form the compilation of the Operational Situation Report dated 21 April 1942 is not at all familiar, then this appears credible; for this form obviously does not originate from the report of the Einsatzgruppe B. In its rebuttal the prosecution offered as proof for the numbers mentioned in the Operational Situation Report dated 21 April 1942 regarding executions carried out, the Documents U.S.S.R., 48 and 56, Prosecution Exhibits 234 and 235.
These documents have no value as evidence as I stated when the documents were offered. First of all I point out that the text of both documents corresponds in part word for word. The numbers mentioned also correspond exactly. Both documents are obviously parts of the same record. The contents of the documents have no connection at all with the acts of Naumann. There reference is rather made to how many dead were found in the mass graves, and that in a small percentage of cases, death was due to gunshot wounds. The cause of death is unknown otherwise. One should not overlook the fact that the less immediate vicinity of Smolensk in which the graves were found was twice within two years the theater of stubborn fighting. If one assumes that, insofar as gunshot wounds were the cause of death, these were due to executions, which is also not an established fact, then the further question arises, by whom and on whose orders these executions took place. I would also briefly like to mention in this respect that the victims of Katyn, for instance, were also men- tioned in these reports, those, who according to German reports have always been designated as victims of executions carried out by Russian agencies. It has not been ascertained to this day who actually carried out these executions. Before the International Military Tribunal this question has also not been cleared despite the fact that three witnesses of the Russian prosecution and three witnesses of the German defense have been interrogated in this respect.
Aside from these arguments, which in themselves already show that the mentioned documents are absolutely without value as proof of the act incriminating Naumann, I would like to mention in addition that Naumann was active in Smolensk only during part of the period into which, according to the reports, the death of the bodies found would fall. Besides, any connection between the crimes mentioned in the reports and Naumann's activity is missing. None of the persons mentioned in the reports with the exception of Naumann was a member of the Einsatzgruppe. What Naumann is supposed to have done is also not mentioned in the reports.
The contents of the reports contain nothing but what was shown by the film offered by the prosecution as evidence. That is why I objected at the time against the acceptance of the film (1) as evidence and the Tribunal sustained this objection, too. Docu- ments U.S.S.R., 48 and 56, and Prosecution Exhibits 234 and 235, have therefore no value at all as evidence in the proceedings against Naumann and are thus eliminated as evidence. Only Prosecution Exhibit 76 remains as evidence, but due to the reasons already mentioned by me, it has only insignificant value as evidence.
1. The prosecution offered a film into evidence as Document No. U.S.S.R. - 81, Prosecution Exhibit 173. Counsel for the defendants Naumann and Seibert objected to the showing of the film, and pointed out that it was without probative value. After seeing the film, the Tribunal sustained the defense counsel's objection. (Tr. p. 257)
December 26, 1998