[Page 352]

Q. Witness, did you know anything about the Einsatzgruppen and Einsatzkommandos of the Security Police and the SD in the East, as they have been mentioned here in this trial?

A. I knew nothing about them. I only knew that Security Police were stationed in the operational zone in the East, where they carried out security measures; that, I believed, was the task of the Security Police in that area. The legal system never knew of any other orders in that connection, and it was only here that we heard of these things for the first time.

Q. Was it possible for members of the Waffen SS to leave the Waffen SS if they did not agree with the tasks which they were given, or the orders which were issued?

A. A possibility of this sort did not exist at all. Duty in the Waffen SS was military duty, legally established and legally recognized. Even members of the Waffen SS who had joined as volunteers were later, through the relationship between the Waffen SS and the Wehrmacht, bound by compulsory military

[Page 353]

Q. It is stated by the prosecution that the criminal activities of the SS were so extensive and applied to so many cases of illegal acts that their illegality could not have remained hidden from the members of the SS. Is that correct?

A. The SS was not a single unit. I have already described the various organizations of the SS, and into the individual organizations, other than his own, a member of the SS had no insight. The average member of the SS had no possible way of knowing of the illegality of the General SS or the Waffen SS. He never saw such crimes committed, and so he could never hold the belief that he belonged to a criminal organization. He could actually not have had any idea of the crimes which have been established here.

DR. PELCKMANN: Your Lordship, finally, may I be allowed to put one question to the witness, arising from the fact that together with a staff he was occupied with the compiling of affidavits. If the High Tribunal desires to hear how these affidavits were obtained and compiled, then this witness can give information about it.

THE PRESIDENT: Yes, very well. You may ask him.

BY DR. PELCKMANN:

Q. One hundred and thirty-six thousand two hundred and thirteen affidavits were compiled and entered on printed forms in various files, together with a survey of the various fields dealt with, and a numerical classification of the affidavits in the individual groups of subjects. Who compiled those affidavits?

A. They were evaluated and compiled under my direction by fifteen SS internees who were judges. Some 170,000 of the statements submitted were utilised. Of these, 136,213 affidavits and applications to appear as a witness were compiled to form a collection of documents. The rest are only requests for a hearing, etc. Those 136,000 statements in the collection were divided into various subjects, and they form part of the defence case of the SS.

Q. Where did you obtain this considerable number of affidavits?

A. Mostly from camps in the American and British zones; to a smaller extent, from the French zone; none at all from the Russian zone and from Austria.

Q. What procedure did you adopt in evaluating and compiling these affidavits?

A. I have just explained that in outline.

Q. Yes, we do not need details. Thank you. Did the selection -

THE PRESIDENT: Dr. Pelckmann, what I understood the witness to say was that there were 170,000 statements utilised, and somehow, from these 170,000 statements, 136,000 affidavits were obtained. Well, how were they obtained? The Tribunal would like to know. Before whom were they sworn?

DR. PELCKMANN: The witness will be able to explain that, Mr. President.

THE WITNESS: These 170,000 affidavits were sworn by interned members of the SS. Of this total figure of 170,000, 136,213 affidavits were, in fact, utilised by my colleagues. The remaining affidavits were not used, because they were either irrelevant or submitted inaccurately or too late.

THE PRESIDENT: You mean the whole 170,000 were sworn affidavits?

DR. PELCKMANN: Sworn before whom, witness?

THE WITNESS: Part of these 170,000 affidavits were not sworn. The 136,000 affidavits, however, were all sworn. We knew the decision of the High Tribunal that an affidavit sworn before a German lawyer would only be valid if it had been sworn before May of this year, and that after May of this year affidavits would have to be sworn before an Allied officer. That, however, was not done in all the

[Page 354]

BY DR. PELCKMANN:

Q. Were the affidavits selected and evaluated on the basis that only affidavits favourable to the defence of the SS should be considered?

A. No, all affidavits were fully considered.

Q. How is it that on some subjects many thousands of statements are available, whereas on others only a few affidavits are contained in the list.

A. From the mass of the affidavits submitted, it is evident that the bulk of the SS members did, not understand the Indictment. They cannot imagine, for example, that they were active in a conspiracy; they cannot imagine that they were preparing a war of aggression. For that reason, members of the SS testified only on such subjects as appeared to them typical of their work in the SS, the serviceman at the front on his experiences at the front, and the member of the General SS on the type of his work in the years from 1933 to 1939.

Q. To give an example - the Tribunal will be able to see it later from the affidavits - for instance, under Roman figure IV, Nos. 1-9. Here is the question: "Was vexatious treatment in concentration camps forbidden?" Now, if there are only two statements on this point, does that mean that only two out of hundreds of thousands of members of the SS can confirm this prohibition, and that all others, and this would be important, know the opposite to be true?

A. No, that is just what it does not mean. It does mean that the members of the SS who were questioned could not make a statement on that point at all, because they did not know anything about it; they could give an answer neither in a negative nor in an affirmative sense, and for that reason they passed over it: Without making any statement at all.

Q. Do you think, judging with your knowledge of the various parts of the SS and their activities and of the attitude of the bulk of the SS men, that these 136,000 affidavits or so represent the average knowledge of the bulk of the SS men, even though the entire strength of the SS was, of course, considerably above that.

A. One must note that most of the men and junior officers who represent the bulk had already been released at the time when the affidavits were deposed. It must also be considered that in many camps a great many technical difficulties existed and that in many camps the subjects of questioning were not uniform. In addition, statements of opinion from the Russian zone and from Austria are missing altogether. In spite of these considerable deficiencies, I believe that I can say, on the strength of my own knowledge of the typical activities of the SS, that the whole picture which these affidavits present can be considered as typical of the SS.

DR. PELCKMANN: Your Lordship, I have no further questions to put to this witness.

THE PRESIDENT: The Tribunal will adjourn.

(A recess was taken.)

DR. LATERNSER: Mr. President, may I ask for permission to put a question to the witness in order to clear up one point which came up during this examination? It will take about three minutes.

THE PRESIDENT: What is the point, Dr. Laternser?

DR. LATERNSER: I should like to ask the witness about a point which came up during the direct examination by the defence counsel for the SS, and which concerns the guarding of concentration camps.

THE PRESIDENT: How does that affect the High Command?

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THE PRESIDENT: No, Dr. Laternser, the Tribunal rejects your application.

THE PRESIDENT: Does the prosecution wish to cross-examine?

BY MR. ELWYN JONES:

Q. Witness, you were an SS man from 1933 on, were you not?

A. Yes.

Q. And during most of that time you were connected with the SS legal system?

A. Yes.

Q. Would a serious view have been taken in the Waffen SS or the German Army about the murder of Jews by SS men?

A. I did not understand the question.

Q. I will repeat it. Would a serious view have been taken in the Waffen SS or the German Army about the murder of Jews by SS men?

A. If the extermination of the Jews on Hitler's orders had been known in the SS, or, as you say, in the Wehrmacht, I am certain that there would have been concern.

Q. If an SS man had murdered fifty Jews, would that have resulted in a death penalty being inflicted on him?

A. I cannot answer this question in simple words, because it touches on a basic problem.

Q. I want you to look at the document dated the 14th of September, 1939, which shows the tolerance of murder in the SS by the highest judicial authorities and the German Army. It is D-421 which will be Exhibit GB 567. The first page of the memorandum:

"The Chief of the Army judiciary announces by telephone. The Field Court Martial of the Kempf Armoured Division has sentenced an SS man of the SS Artillery Regiment to three years' imprisonment and a military police sergeant- major to nine years' penal servitude for manslaughter. After about fifty Jews, who had been used during the day to repair a bridge, had finished their work in the evening, these two men drove them all into a synagogue and shot them all without any reason. The sentence is submitted to the Commander-in-Chief of the 3rd Army for confirmation. The proposal of the representative of the prosecution is capital punishment for murder." Then there follow initials. Then there is a marginal note: "General Halder requests information on the decision of the Commander-in-Chief of the 3rd Army." Then purple pencil notes: "To the Adjutant of the Commander-in-Chief of the Army." And on the next page you will see the course of this history. "Telegram to the Military Judge of the 4th rank attached to the Quartermaster General in Berlin. SS man Ernst is granted extenuating circumstances because he was induced to participate in the shooting by a corporal handing him a rifle. He was in a state of irritation owing to numerous atrocities committed by Poles against persons of German race. As a SS man, particularly sensitive at the sight of Jews, to the hostile attitude of Jewry to the Germans, he therefore acted quite thoughtlessly in a youthful spirit of adventure. An excellent soldier not punished before." And that is signed by the military judge of the 3rd rank Lipski. And then there are purple pencil notes on the document, "To the Adjutant of the Commander-in-Chief of the Army," pencil note, "Telephone call from Oberkriegsgerichtsrat Dr. Sattmann to the effect that so far as has been ascertained the C.-in-C. of the Army H.Q. will not confirm both sentences." Then added, in pencil, "The sentences have been dropped under the amnesty. Punishment was announced before the amnesty. Nine years' penal servitude for the police

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sergeant-major changed to three years' imprisonment. Three years' imprisonment for SS man unchanged. Confirmed by Army Headquarters."

A. This document, as I understand it, in the second part regarding the explanation for the mild sentences on the two SS men, is a personal opinion of Kriegsgerichtsrat Lipski, who, as the presiding judge, passed the sentences. Therefore, since I do not know other details of the case; I am not in a position to say whether the reasons which the presiding judge gives deviate from the facts or not.

Q. But - just for a moment. Do you appreciate that for the murder of fifty Jews - and if the facts as reported in this German document are true, it could have been nothing but murder - there was, first of all, a finding of manslaughter. You as a lawyer will appreciate what I am implying - and secondly that this ... that army judge passed a sentence of three years' penal servitude for the murder of fifty. He was one of your legal colleagues of the Army, and I suggest to you that this is typical of your attitude - particularly that of the SS and the Army's judicial authorities - to the murder of what you were pleased to call subhumans.

A. May I say the following: A question of law, whether the verdict is based on manslaughter or on murder, is undoubtedly at issue here. The actual grounds which caused the judge to convict the man of manslaughter instead of murder are not indicated in the document. For that reason, I cannot take a stand on the question put to me.

Q. But you know it is indicated perfectly clearly. The reason why it, was reduced to manslaughter was that this man Ernst, being an SS man, was particularly sensitive at the sight of Jews, and therefore it was just a youthful adventure - that is what was operating in the judge's mind. You know it is perfectly clear? You -

A. I should like to say this: As the document states, the prosecution in the case asked for a verdict of murder and for the death sentence. The presiding judge did not, in his verdict, convict the men of murder but of manslaughter. According to the German Penal Law, the difference between manslaughter and murder is that murder is an action carried out after previous deliberation with the aim of killing a person, while manslaughter is an act of emotion, resulting in the death of a person. The judge after considering the circumstances here based his verdict on this latter legal qualification.

Q. Witness, I am obliged to you for your dissertation on the difference between manslaughter and murder. I think the Tribunal is familiar with it. But, at any rate, the end of this story was that the Army Commander-in-Chief would not confirm the sentences.

A. That is correct.

Q. The sentences were dropped under the amnesty. That is the end of this - this suit of murder by the army judicial authorities, amnesty and pardoning of the whole thing. I want you - I want you now to turn to another document so that the Tribunal can judge how zealous the German authorities were in the pursuit of the SS crimes. It is D- 926, to be Exhibit GB 568. This comes from an earlier period, not from the days when the Poles or the others, who you said were responsible, were operating. These were the pioneer days of the SS, 1933, when you joined them. This is a file relating to the deaths of prisoners in protective custody at the concentration camp of Dachau. It starts with a letter dated 2nd June, 1933 from the Provincial Court Public Prosecutor to the State Ministry of Justice. It is headed: Deaths of prisoners in protective custody at the concentration camp of Dachau. It relates to the Schloss, Hausmann, Strauss and Netzger cases:

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