One Hundred and First Day:
Saturday, 6th April, 1946
[Page 77 ]
SIR DAVID MAXWELL FYFE: My Lord, that will become Exhibit GB 298.
Q. It says:
I therefore order:
All acts of violence committed by non-German civilians in
the occupied territories against the German Armed Forces,
the S.S. or the Police, or against installations used by
them, are to be combated in the following manner as acts
of terrorism and sabotage:
(2) Those who are apprehended later are to be handed over
to the Security Police and the S.D. office. [Page 78]
A. Yes, I did.
Q. Now, you had authority to make alteration's and
additions. Did you, by your alterations and additions,
attempt to mitigate the severity of that order in any way?
A. I have no recollection of having issued any additional
orders to mitigate its severity. I may also say that I would
never have issued anything without first presenting it to
the Fuehrer.
Q. Just let us see what you did issue. Would you look at
Document D-764, which will be Exhibit GB 299, paragraph 4?
Now, that is your executive order, countersigned, I think,
by the Senior Military Judge, putting forward your order
based on that decree, and would you look at paragraphs 4 and
5.
Crimes affecting German interests but which do not
imperil the security or tactical preparedness of the
occupying power do not justify the retention of
jurisdiction over non-German civilians in the occupied
territories. I authorise the Commanders of the occupied
territories to draw up new regulations in agreement with
the higher S.S. and Police Chiefs."
That was certainly not mitigation of the order, was it? You
were not making it any easier.
A. There are a few sentences to be added here. This arose
out of the daily discussion of these matters, which I dealt
with later, on the same lines as the first decree. I made
suitable annotations, and signed them.
Q. Well, now, that is what you called terrorism and
sabotage. Let us look at what happened to people who were
guilty of something less than terrorism or sabotage. Look at
Document D-763, which becomes Exhibit GB 300.
A. I did not interpret it that way. The words "employed on
labour" were always used; but it has become clear to me from
what I have learned here that they frequently ended in the
concentration camp. However, it was always described to us -
to me - as a labour camp. That was the description, "labour
camps of the Secret State Police."
Q. But this is August, 1944. You will agree that that is a
most severe course to take with people who have been guilty
of something less than terrorism or sabotage, do you not?
A. Yes.
Q. Now, let us
A. I assume that you do not wish me to discuss their origin
and development
[Page 79]
Q. That was only severe enough for you for three weeks, was
it not, because on 4th September, which is barely three
weeks later, you issued another order. This document is D-
766, Exhibit GB 301.
Now, this was issued, as it shows, as an agreement with
Himmler, Kaltenbrunner, the Reich Minister of Justice and
Dr. Lammers.
2. Persons convicted of criminal acts against the Reich
or the occupying power and prohibited, in accordance with
the directives issued by the Fuehrer for the prosecution
of such acts, from intercourse with the outside world,
are to be given a distinguishing mark."
A. No, I cannot say anything about that. I know only that it
was made necessary by the increasing dangers in the occupied
territories, due to lack of troops to keep order.
Q. Well, let me remind you you called a conference to
consider this matter. That is shown in Document D-765, and I
also show you D-767, the report of the conference. You need
not worry about D-765, which just says that there is to be a
conference, but in D-767, which will be Exhibit GB 303,
there is a report of the conference.
The second paragraph says:
A. May I read this note? I do not know it. May I read it
now, please?
Q. Certainly. You will see that I did not trouble you with
it all, but it says what I had already put to you earlier,
that the "Nacht und Nebel" decrees had become superfluous as
a result of the terror and sabotage decree, and that the
Wehrmacht legal department had presented these things for
discussion.
Now, can you give us any answer as to why these 24,000
unfortunate persons who had been sentenced should be handed
over to the tender mercies of the S.D.?
A. I must say that I am surprised by the whole incident. I
did not attend the conference, and apparently I did not read
the note since, as a matter of principle,
[Page 80]
Q. I will give you something which you have read.
A. As regards the facts about which you ask, I must answer
in the affirmative. I do not know the figures, only the
facts.
Q. And you cannot answer my questions. You cannot give us
any reason as to why the Wehrmacht and these other offices
were handing over these 24,000 people, who had been
sentenced by ordinary courts, to the S.D.? You cannot give
us any reason for that?
A. No. I may say that up to a point I can. I think "S.D." is
a mistake. I think police custody was meant. That does not
mean the same thing.
Q. Certainly not.
A. I do not know if it might have been the same thing.
Q. Surely you have been at this trial too long to think that
handing people over to the S.D. means police custody. It
means a concentration camp and a gas- chamber usually, does
it not? That is what it meant in fact, whether you knew it
or not.
A. I did not know it, but it obviously led to the
concentration camp in the end. I consider it possible. In
any case, I cannot say that it was not.
THE PRESIDENT. Sir David, the last paragraph but one refers
to the O.K.W.
SIR DAVID MAXWELL FYFE: Yes, my Lord, I am just coming to
that.
BY SIR DAVID MAXWELL FYFE:
Q. If you will notice that, defendant, two paragraphs below
the one I put to you it states:
A. I do not know exactly what it means, but it was obviously
mentioned at that conference.
Q. Now, before I put the next document, I want you to
realise how we have been going. We started with the "Nacht
und Nebel" decree, which disappeared; and we went on to the
"Terror and Sabotage" decree. We then proceeded to acts
which were less than terror and sabotage, but were criminal
acts under the rules of the occupying powers.
I now want you to consider what was done to people who
simply refused to work. Would you look at Document D-769?
That is Exhibit GB 304. That is a telegram from Luftwaffe
General Christiansen, who was in the Netherlands Commander
of the Armed Forces in the Netherlands, through his Chief of
Staff.
Now listen to this:
[Page 81]
A. That is a cruel measure, yes.
Q. What was your answer to that cruel measure?
A. I cannot say. I do not recollect the incident at all, but
perhaps there is an answer.
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(Part 3 of 6)
[SIR DAVID MAXWELL FYFE continues his cross examination of Wilhelm Bodewin Johann Gustav Keitel] "The constant increase in acts of terror and sabotage in
the occupied territories, committed more and more by
bands under unified leadership, compels us to take the
sternest counter-measures in a degree corresponding to
the ferocity of the war which is forced upon us. Those
who attack us from the rear at the crisis of our fight
for existence deserve no consideration.
Now, would you look at paragraph 2:
(1) The troops, the S.S., etc.... are to shoot down on
the spot ... all terrorists and saboteurs.
Accomplices, especially women, who take no active part in
the fighting, are to be employed on labour. Children are
to be spared.""The Chief of the O.K.W. will issue the necessary executive
instructions. He is entitled to make alterations and
additions as far as the exigencies of war operations
require."
"All legal proceedings now going on in connection with
acts of terrorism, sabotage or other crimes committed by
non-German civilians in the occupied territories which
imperil the security or tactical preparedness of the
occupying power are to be suspended. Charges are to be
dropped. Sentences already pronounced are not to be
carried out. The culprits are to be handed over with a
report on the proceedings to the nearest local Security
Police and S.D. office. In the case of death sentences
which have already been legally passed, the regulations
now in force will continue to apply.
And then you ask them to consider a regulation handing them
over to the S.D. for forced labour.
"Non-German civilians in the occupied territories who
endanger the security or tactical preparedness of the
occupying power otherwise than through acts of terrorism and
sabotage are to be handed over to the S.D. Section 1, No. 3
..." - that is the part that says women will be employed on
labour and children will be spared - "of the Fuehrer's order
also applies to them."
Well, you knew perfectly well what would happen to anyone
who was handed over to the S.D., that he would probably be
killed, certainly be put into a concentration camp, did you
not?
"1. Non-German civilians in occupied territories who have
been legally sentenced by German courts for a criminal
act against the security or tactical preparedness of the
occupying power, and who are in custody in the occupied
territories or in the home front area, are to be handed
over, together with a report on the facts, to the nearest
Security Police and S.D. office. An exception is made
only in the case of those sentenced to death for whom the
execution of the penalty has been ordered.
Now, had you any idea how many people would be affected by
that order?
"The Reichsfuehrer S.S." - Himmler - "demands, in his
letter, the immediate surrender to the S.D. of
approximately 24,000 non-German civilians who are under
arrest or held for interrogation."
Now listen to this:
"No answer was given to the question raised during the
discussion as to why they must be surrendered to the S.D.
at that moment, in spite of the considerable amount of
administrative work involved."
Can you give any answer now as to why 24,000 people who had
been sentenced should be transferred to the tender mercies
of the S.D.?
"As the O.K.W. is not particularly interested in trying
the minor matters still remaining for the military
tribunals, they are to be settled by decrees to be agreed
upon by local authorities."
It is quite clear that your office was deeply concerned in
this business, was it not, defendant?
"Owing to a railway strike, all communications in
Holland are at a standstill. Railway personnel does not
respond to appeals to resume work. Demands for motor
vehicles and other means of transport for moving troops
and maintaining supplies are no longer obeyed by the
civil population. According to the Fuehrer's decree of
18th August, 1944" - that is the "Terror and Sabotage"
decree, which you have already had - "and the
supplementary executive instructions of the Chief of the
O.K.W.," which we have already seen, "troops may use
armed force only against persons who commit acts of
violence as terrorists or saboteurs, whereas persons who
endanger the security or tactical preparedness of the
occupying power in any other way than by terrorism or
acts of sabotage are to be handed over to the S.D."
"This regulation has proved too complicated, and
therefore ineffective. Above all, we do not possess the
necessary police forces. The troops must again receive
authority to shoot as well - with or without summary
trial - persons who are not terrorists or saboteurs in
the sense of the Fuehrer's decree, but who endanger the
fighting forces by passive resistance. It is requested
that the Fuehrer's decree be altered accordingly, as the
troops cannot otherwise assert themselves effectively
against the population, which, in its turn, appears to
endanger the conduct of operations."
Now, defendant, will you agree that shooting, without or
even with trial, railway men who will not work, is about as
brutal and cruel a measure as could well be imagined by the
mind of man? Do you agree?