\ Trials of German Major War Criminals: Volume 3

The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
December 17, 1945 to January 4, 1946

Twenty-Fifth Day: Wednesday, 2nd January, 1946
(Part 6 of 9)


[Page 223]

Does your Honour want to go ahead ?

DR. KURT KAUFMANN (Counsel for defendant Kaltenbrunner): I have just heard that during the afternoon the evidence will concern the defendant Kaltenbrunner. I therefore regard it as advisable to make a proposition regarding Kaltenbrunner immediately, before the recess, and not in the afternoon.

My suggestion is the following:

I ask that the trial against Kaltenbrunner be postponed during his absence. Kaltenbrunner, so far as the proceedings thus far have been concerned, has taken only a small part. The reason for his absence is an illness which, according to my opinion, is of a serious nature, for it is obvious that in so important a trial only a very serious illness can bring about the absence of a defendant and justify it. I have no doctor's report on his present condition. It therefore appears to me dubious whether he will be capable of attending the hearing at all in the future.

Be that as it may, my present suggestion that the trial of Kaltenbrunner be postponed is not in contradiction to paragraph 12 of the Charter. If a defendant is alive and cannot be brought to trial in person, then the trial can proceed against him in his absence. This is particularly justified if the defendant is concealing himself and if he thus is obliged to submit to the trial even in his absence.

But Kaltenbrunner is here in prison. He did not withdraw hiniself from the trial and he wishes nothing more than that he may be able to take a position as regards the accusation. But if such a defendant is absent through no fault of his own, it would hardly be consistent with justice if his trial were nevertheless carried out.

[Page 224]

I should regret the procedure of the trial all the more since it is precisely now that Kaltenbrunner must have an opportunity to give me information in my capacity as his defence counsel. The particular indictment is not even known to him; it was given to him just before the Christmas recess.

I do not need to emphasise how much more difficult the defence's task is made by a continuation of the trial - indeed, it is made almost impossible.

THE PRESIDENT: The Tribunal will consider the application which has been made on behalf of counsel for the defendant Kaltenbrunner and will give its decision shortly.

The Tribunal will now adjourn until 2 o'clock.

COLONEL STOREY: If I may make just one statement in connection with that, if your Honour pleases?

THE PRESIDENT: Yes, certainly.

COLONEL STOREY: The evidence against Kaltenbrunner will be in connection with the part he played in these organisations, and we thought that, in the interest of time, the individual case against Kaltenbrunner could be presented simultaneously . Now, if it were not presented in this connection, it would be within a few days, early next week, in connection with the other individual defendants. Counsel mentions that he probably will not be able to be here for some time, and 1 thought I would make that statement.


(A recess was taken until 1400 hours.)

THE PRESIDENT: The Tribunal has considered the motion made by counsel on behalf of Kaltenbrunner, and it considers that any evidence which you were intending to produce, which is directed against Kaltenbrunner individually and not against the organisations, ought to be postponed until the prosecution come to deal, as the Tribunal understands you do propose to deal, with each defendant individually; and the Tribunal thinks that Kaltenbrunner's case might properly be kept to the end of the individual defendants, and that the evidence which is especially brought against Kaltenbrunner might then be adduced. If Kaltenbrunner is then still unable to be in Court, that evidence will have to be given in his absence.

COLONEL STOREY: If your Honour pleases, I do not believe that the case, as we have it prepared now, can be separated as between the organisations and the individuals.

THE PRESIDENT: No, but if it bears against the organisations it can be adduced now.

COLONEL STOREY: I understand that, but if your Honour pleases, I say that the preparation that we have made is in connection both with the organisations and the individuals. In other words, it is a joint presentation. Therefore, under your Honour's ruling, as taken, it would have to go over until next week with the individual defendants' cases, because we prepared it so that it will affect the organisations as well as the defendant individually, because his acts are in connection with what he has done with the organisations included; in other words, we have not got it separated.

THE PRESIDENT: How will that affect you for this afternoon?

COLONEL STOREY: We can introduce a witness, next, but if your Honour pleases, in reference to the witness, he, of course, would affect the organisations, and incidently would affect Kaltenbrunner, too. I do not see how

[Page 225]

you could separate that, except that for the witnesses this afternoon the questions could be confined to the organisations.

THE PRESIDENT: Now, of course, all the evidence which has been given up to date, much of it in Kaltenbrunner's absence, has in one sense been against Kaltenbrunner in being evidence against the organisation of which he was the head.

COLONEL STOREY: Colonel Amen is going to examine the witness orally, and it is primarily evidence against the organisations; and, incidentally, it would affect Kaltenbrunner's individual liability.

THE PRESIDENT: I think the Tribunal would like you to go on with the evidence.

COLONEL STOREY: Yes. It has been suggested, if your Honour pleases, that we might have a few minutes to confer about the situation, about the witnesses.

THE PRESIDENT: You wish to adjourn for a few minutes ?

COLONEL STOREY: Just a few minutes so that we can confer, as it changes our order of proof.


COLONEL STOREY: Just ten minutes will be sufficient.

THE PRESIDENT: Yes, we will adjourn now.

(A recess was taken.)

THE PRESIDENT: The Tribunal will now hear the evidence which the prosecution desires to call, and in so far as it consists of oral testimony, the Tribunal will afford counsel for Kaltenbrunner the opportunity of cross-examining the witnesses now called, at a later stage if he wishes to do so.

DR. LUDWIG BABEL (Counsel for S.S. and S.D.): I was first appointed counsel for the members of the S.S. and S.D., who in these proceedings have asked for leave to be heard. My duties were circumscribed in such a manner that I was to present to the Court the motions in suitable form. Not until the Tribunal made its announcement of 17th December, 1945, was I appointed as defence counsel for the organisations of the S.S. and the S.D. As such I am not working on behalf of a client who could give me information or instructions for carrying on the defence. In order to obtain the necessary information I am, therefore, restricted to communicating with members of the organisations I am representing, most of which members are in prisoner of war camps or have been arrested. Thus far, because of the shortness of time, I have not been able to get the necessary information.

After 17th December, 1945, thousands of requests were submitted to me by the Court and in the short period of time, since then, I have not been able to work on all of them.

According to Article 16 of the Charter, a copy of the Indictment and of all pertaining documents - written in a language he understands - is to be handed to the defendant within a reasonable time prior to the beginning of the trial. This provision should, presumably, be also applied to the indicted organisations. To serve the Indictment on the organisations is not provided for in the rules of procedure nor has the Tribunal so far ordered it.

In view of the very extensive work involved I personally was not in a position to have copies prepared in a number sufficient for distribution to the members of the organisations in the various camps so that they could express their views and give me the needed information.

[Page 226]

In face of these circumstances, for which neither I nor the organisaitons which I am representing are reponsible, I am not in a position to cross-examine a witness. who would be heard to-day thereby making use of the right accorded to me as defence counsel. To hear a witness against the defendant Kaltenbrunner likewise concerns the organisations which I represent, the S.S. and the S.D. To hear this witness at this point would mean limiting the defence.

I therefore submit a motion to postpone the further discussion of the charges against the organisations of the S.S. and the S.D. By visiting the camps, in which there are members of the organisations of the S.S. and S.D., and after discussions with them, I shall be able to obtain the information needed for the defence. I should like to add that thereby no delay in the proceedings would be caused and, I presume, this would in no way place a burden upon the prosecution.

THE PRESIDENT: If you will allow me to interrupt you, I understand your application to be, that you are not in a position to cross-examine these witnesses this afternoon, and that you wish for an opportunity similar to that which I have already accorded to the counsel for Kaltenbrunner, to be accorded to you. You wish for an opportunity to cross-examine these witnesses at a later stage, is that right ?

DR. BABEL: Yes. At the same time, however, I should like to point out at this moment that, through the peculiarity of the task that has been allotted to me, my defence is being made so difficult that to cover questions subsequently -

THE PRESIDENT: Let us not take up time by that. Was your application that you might have an opportunity of cross-examining these witnesses at a later date ?

DR. BABEL: My motion had that meaning but its purpose was also to make the defence practicable and ensure that the witnesses should not be heard at a time when I cannot make use to the fullest extent of the privileges granted me by the Charter.

THE PRESIDENT: The Tribunal is ready to give you the opportunity of cross-examining these witnesses at a later date.

LT. WHITNEY R. HARRIS: May it please the Tribunal.

We submit Document Book BB as a separate Document Book, relating to the defendant Kaltenbrunner. This book contains our documents, from which quotations will be made during this presentation. Reference will be made to three or four other documents contained in the Document Book on the Gestapo and the S.D.

During the past three Court days, the Tribunal has heard evidence of the criminality of the S.S., the S.D. and the Gestapo. The fusion of these organisations into the shock formations of the Hitler Police-State has been explained from an organisational standpoint. There is before the Tribunal a defendant who represents these organisations through the official positions which he held in the S.S. and the German Police, and whose career gives added significance to this unity of the S.S. and the Nazi Police. The name of this defendant is Ernst Kaltenbrunner.

I now offer Document 2938-PS as the Exhibit next in order, USA 511. This is an article which appeared in Die Deutsche Polizei, the magazine of the Security Police and S.D., on 15th May, 1943, at Page 193, entitled,

[Page 227]

"Dr. Ernst Kaltenbrunner, the New Chief the Security Police and S.D." and I quote the beginning of the article:
"S.S. Gruppenfuehrer Dr. jur. Kaltenbrunner was born the son of the lawyer Dr. Hugo Kaltenbrunner, on 4th October, 1903, at Ried on Inn, near Braunau. He spent his youth in the native district of the Fuehrer, with whom his kinsfolk, originally a hereditary farming clan, had been closely connected since olden times. Later he moved with his parents to the little market-town Raab, and then to Linz, on the Danube, where he attended the State Realgymnasium, and there he passed his final examination in 1921."
The next paragraph describes Kaltenbrunner's legal education, his nationalistic activities and his opposition to Catholic-Christian-Social student groups. It states that after 1928 Kaltenbrunner worked as a lawyer-candidate in Linz. The article continues, and I quote, reading the third paragraph:
"As early as January, 1934, Dr. Kaltenbrunner was imprisoned by the Dollfuss Government on account of his Nazi views and sent with other leading National Socialists into the concentration camp Kaisersteinbruch. He caused and led a hunger strike and forced the Government to dismiss 490 National Socialist prisoners. In the following year he was imprisoned again, because of suspicion of high treason and committed to the Court-Martial of Wels (Upper Danube). After an investigation of many months, the accusation of high treason collapsed, but he was sentenced to six months' imprisonment for conspiracy. After the spring of 1935, Dr. Kaltenbrunner was the leader of the Austrian S.S., the right to practise his profession having been suspended because of his National Socialist views. It redounds to his credit that in this important position he succeeded, through energetic leadership, in maintaining the unity of the Austrian S.S., which he had built up, in spite of all persecution, and succeeded in committing it successfully at the right moment.

After the annexation, in which the S.S. was a decisive factor, he was appointed State Secretary for Security Matters on 11th March, 1938, in the new National Socialist Cabinet of Dr. Seyss-Inquart. A few hours later he was able to report to the Reichsfuehrer S.S. Heinrich Himmler, who had landed at Aspern, the Vienna Airport, on 12th March, 1938, 3 a.m., as the first National Socialist leader, that the Movement had achieved complete victory and that " - the article quotes Kaltenbrunner -- " the S.S. is in formation awaiting further orders " - closing Kaltenbrunner's statement.

"The Fuehrer promoted Dr. Kaltenbrunner on the day of the annexation, to S.S. Brigadefuehrer and leader of the S.S.- Abschnitt Ober Donau. On 11th September, 1938, this was followed by his promotion to S.S. Gruppenfuehrer."

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