Archive/File: imt/tgmwc/tgmwc-21/tgmwc-21-208.05
Last-Modified: 2000/12/18

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?

THE PRESIDENT: No.

                                                  [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?

DR. LATERNSER: Yes -

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.

THE PRESIDENT: I see.

DR. LATERNSER: I quote:

  "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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