Archive/File: imt/tgmwc/tgmwc-11/tgmwc-11-101.03
Last-Modified: 2000/01/05

Q. So that in 1944 you had to make a still more severe
order. Would you look at Document D-762.

SIR DAVID MAXWELL FYFE: My Lord, that will become Exhibit GB 298.

Q. It says:

  "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.
  
  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:
  
  (1) The troops, the S.S., etc.... are to shoot down on
  the spot ... all terrorists and saboteurs.
  
  (2) Those who are apprehended later are to be handed over
  to the Security Police and the S.D. office.
  
  Accomplices, especially women, who take no active part in
  the fighting, are to be employed on labour. Children are
  to be spared."

Now, would you look at paragraph 2:

"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."

                                                   [Page 78]

Did you think that that was a cruel and severe order or not?

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.

  "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.
  
  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."

And then you ask them to consider a regulation handing them
over to the S.D. for forced labour.

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.

"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?

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]

here. Otherwise I could explain them, but I will merely
answer the question. The answer is, yes, it was a very
severe measure. The explanation if I may state, it very
briefly, is that, as is known, during the daily situation
conference which could last for hours at a time, and covered
reports on incidents in all the occupied territories, I
received from the Fuehrer instructions and orders which were
afterwards set down in a form similar to this document; and
I think I have already described in detail the way in which
I discussed these things with him and how I worked - that on
principle I never issued or signed anything which did not
accord in principle with his wishes.

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.

  "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.
  
  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."

Now, had you any idea how many people would be affected by
that order?

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:

  "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.?

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]

I always marked with my initials every document which was
presented to me.  I am not acquainted with the figures
quoted. This is the first time I have seen them. I am not
acquainted with them and I do not remember them, unless
another order was ...

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:

  "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?

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:

   "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."

                                                   [Page 81]

Then General Christiansen comes in with this:

  "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?

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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