[Page 41 ]

COLONEL SMIRNOV: I interrupted the quotation of a document on Page 3 of the document book, second paragraph, first column of the text. I consider it possible to omit many items contained in this document, as these facts simply confirm further the general conclusions which were expressed in the beginning of the document, and which were already confirmed by many facts read into the record by me yesterday. I only beg the Tribunal to allow me to draw its attention to one of the stipulations in the note, which the Tribunal will find on Page 3 of the document book, second paragraph, first column of the text. It states that the civilian inhabitants were forcibly sent to concentration camps, thus artificially and illegally increasing the number of prisoners of war and subjecting the peaceful population to the inhuman regime which was established by the German fascist authorities for the prisoners of war.

I submit to the Tribunal, further, an extract from the minutes of a court-martial of the 374th Liuban Infantry Division, held on 29th October, 1944. This document is submitted as Exhibit USSR 162. The Tribunal will find this document on Page 67 of the document book.

DR. KAUFFMANN (Counsel for defendant Kaltenbrunner): I would like to make two motions regarding the questions, as to the submission of evidence in this case as well as to the general procedure. The first motion is that I would like to ask, with reference to Article 21, that the submission of documents of the investigating committee, as well as any reference to them be prohibited, inasmuch as these documents do not exactly define the source of the information discussed here.

Secondly, as regards the reading of testimonies and written statements, which contain only summary information without any personal observations, that the reading of such statements be permitted only if the cross examination of the author as a witness is possible.

I should like to submit the following reasons for these motions. Article 19 of the Charter permits all evidence which has probative value. Article 21 gives the Court the right to ask for proof regarding documents submitted by the so-called investigating committees. The purpose of both articles, however, is to facilitate the submission of proof. The admission of written statements of various kinds leads to the danger that such statements might incriminate an entire people and entire nation. The request of the defence, therefore, that such proof and such documents be admitted only when this danger has been eliminated as far as possible is, I think, a justifiable request.

Many of the written statements read by the Soviet prosecution, and excerpts from committee reports, have had no probative value; and, furthermore, since they cannot be checked - their contents cannot be checked - they tend to give a wrong impression about historical events.

[Page 42]

DR. KAUFFMANN: The defence is of the opinion that Article 21 calls for an interpretation. This article permits the reading of such documents and such reports, but says nothing as to the possibilities for defendants' counsel of checking the sources upon which these reports are based. We are of the opinion that the witnesses who have been questioned have not been, for reasons of compassion, able to describe the events objectively. As jurists we know that it is exceedingly difficult to describe even simple events truthfully. Therefore, it is our duty to the German people, and our responsibility, to try to check these sources and to help thereby to explain and clarify the course of events which appear to us in a rather different light.

THE PRESIDENT: Defendants' counsel will have the opportunity at the proper time of criticising any evidence which is offered by the prosecution. They will be able to point out whether it is probable that certain evidence was given out of sympathy; they will be able to criticise the evidence which is given in any way they choose, at the proper time. But this is not the proper time.

Article 21 is perfectly clear, and it directs the Tribunal to take judicial notice of the various documents which are there set out, and expressly refers to the records and findings of military or other tribunals of any of the United Nations. This is a record and finding of a military tribunal, of a Soviet court. Therefore, the Tribunal is directed in express terms by Article 21 to take judicial notice of it. That does not prevent defendants' counsel, when they make their speeches in defence, from criticising the evidence upon which that record and findings proceed, but to say it ought not to be admitted appears to me, at any rate, and I think also to the other members of the Tribunal, to be really entirely unfounded as an objection.

COLONEL SMIRNOV: May I continue, Mr. President? Thus the document which has been submitted to the Tribunal will be found on Page 67 of the document book in their possession. I will allow myself to repeat in my own words the biographical data concerning the defendant Le Court, who was brought before a court-martial.

He was not an S.S. man but a non-Party senior corporal of the German Army, twenty-seven years old. He was born and lived before the war in the town of Stargardt; was owner of a cinema, and was later conscripted into the army, where he served in the 1st Company of the 4th Airborne Division. I begin to quote the statements in evidence given by Le Court, contained in the section entitled "Judicial Investigation", beginning with paragraph 2. The Tribunal will find this place in the document book on page 68, fifth paragraph. Le Court stated:-

"Prior to my capture by Red Army soldiers, that is, before 4 February, 1944, I served as laboratory assistant in the First Bicycle Company of the 2nd Airborne Regiment of the 4th Division at the Headquarters of Air Field Service E 33/XI.

In addition to photographic material, I handled other work when not on duty, that is to say, I spent my free time for my own pleasure in shooting Red Army prisoners of war and peaceful citizens and soldiers. I used to jot down in a special book the number of prisoners of war and peaceful citizens I had shot."

THE PRESIDENT: Colonel Smirnov, the passage that you read a moment ago about jotting down the numbers in his book doesn't occur in the translation which is before me. I don't know whether it is in your original. I suppose it is. Are you sure it is in the original?

[Page 43]

THE PRESIDENT: Very well. I only wanted to be certain that it was in the original, as it does not occur in the translation before me. You can, continue.

COLONEL SMIRNOV: I interrupted the quotation on Page 68, and omitted three paragraphs. Thus, I came to Page 69. Perhaps this is the reason why the President of the Tribunal could not find the sentence I quoted. I continue the quotation:-

"Besides the shooting of prisoners of war, I also shot guerrillas, peaceful citizens, and burned houses, together with their inhabitants.

In November, 1942, I participated in the shooting of ninety- two Soviet citizens.

From April to December, 1942, while a member of the Airborne Regiment, I participated in the shooting of fifty-five Soviet citizens. I was in charge of the actual shooting."

"In addition, I participated in punitive expeditions when I personally set fire to houses.

Altogether more than thirty houses in various villages were burned down by me. I arrived in the village with the punitive expedition, entered the houses and warned the population that no one was to leave the houses, which were going to be burned. I set fire to a house, and when anybody tried to save himself - nobody was allowed to leave - I drove him back into the house or shot him. In that way I burned more than thirty houses and seventy peaceful citizens, mainly aged men, women, and children.

Altogether I have personally shot 1,200 persons."

"The German High Command encouraged in every way the shooting and killing of Soviet citizens. In recognition of good work and service in the German Army, rendered by my shooting prisoners of war and Soviet citizens, I was promoted, before my promotion was due, on 1st November, 1941, to the rank of senior corporal. This promotion should have come about on the 1st November, 1942; at the same time I was awarded the East Medal."

I omit all the general part of the evidence, and beg to be allowed to draw the attention of the Tribunal to that part which is in the ninth paragraph on Page 71 of the document book, which says that in eighty graves alone, which were opened up and examined by medico-forensic experts in the town of Smolensk and in the district of Smolensk, over 135,000 corpses of Soviet citizens, women, children and men of various ages, were discovered.

I pass over the second page of the evidence and come to that part of the document which gives a description of the criminal deeds of individual defendants brought to trial under these charges. I will not quote data regarding all ten defendants, but only two or three of them.

[Page 44]

"Hirschfeld was interpreter for the German Military Command in the District Kommandantur. He personally beat and arrested for treason perfectly innocent Soviet citizens, without consideration for sex and age, and forced them to make false statements. After making these false statements forced from them by beatings, the arrested persons were shot by the Kommandantur troops. Hirschfeld participated personally in the annihilation of Soviet citizens in Smolensk in May, 1943, by means of asphyxiation through carbon monoxide in gas vans. In January and February 1943, he participated in punitive expeditions against guerrillas and against peaceful Soviet citizens in the district of Newel-Uswjati. While he was commanding the German punitive unit, he committed, together with his soldiers, acts of violence against the peaceful population."

COLONEL SMIRNOV: Mr. President, I am not quoting the numbers of pages of the translation, but the pages of the document book.

THE PRESIDENT: Yes, I follow that, but I was only wondering whether, by a slip possibly, these pages had been translated and perhaps hadn't got into our copy of the documents, and whether they could be found. You see, we have 11 pages missing in the translation.

COLONEL SMIRNOV: Mr. President, I have not yet seen the translation. If the President will allow me, during the recess I will verify the translation, and will put the translation file into complete order.

THE PRESIDENT: Yes, certainly. Go on in the meantime.

COLONEL SMIRNOV:

"Together with his soldiers, he burned nine Soviet villages and hamlets. He plundered farmers and shot innocent peaceful Soviet citizens who came out of the woods to get the piles of ashes remaining from their burned-down homes in order to search for food.

He participated in the deportation of Soviet citizens into German slavery."

"Modisch was a medical orderly in the 551 German Military Hospital in the city of Smolensk from September 1941 until April 1943. He was an eye-witness and direct participant in the killing of prisoners of war, wounded soldiers and officers of the Red Army, upon whom the German professors and doctors, Schemm, Getto, Muller, Ott, Stefan, Wagner and others carried out, under the pretext of a cure, various experiments with previously unknown chemicals. After that, the wounded prisoners of war were infected with septicaemia and killed."

"Modisch himself killed, by means of injections of great quantities of strophantin and arsenic, no less than twenty-four prisoners of war, both Red Army men and officers. In addition, he used, for medical treatment of German military personnel, the blood of Soviet children, ranging in age from six to eight years, by taking great quantities of blood from them, after which the children died. He extracted from Russian prisoners of war the spinal

[Page 45]

fluid, whereupon because of emaciation they suffered paralysis of the lower extremities. He participated also in the plundering of Soviet medical institutions in the city of Smolensk."

I conclude this part by quoting only three lines which state:

"In the month of 1943, with his participation, sixty inhabitants of the district of Osiposwitkschi were burned in a stable; the village itself was also burned."

"At various times, the defendant Muller killed ninety-six Soviet citizens, among them old men, women and babies. Muller raped thirty-two Soviet women, of whom six were killed after having been raped. Among the women raped, were several fourteen- or fifteen-year-old girls."

On 6 February, 1940, Frank gave an interview to the Volkischer Beobachter correspondent, Kleiss. I quote that section of the interview which was already pointed out to the Tribunal. I begin the quotation:

"Interview given by the Governor-General to the Volkischer Beobachter correspondent, Kleiss, on 6 February, 1940:

Kleiss: It might be interesting to develop the thesis which distinguishes a protectorate from a Government General.

The Governor-General: I might, for example, state the following: In Prague, there were put up red posters announcing that seven Czechs had been shot that day. I then said to myself: 'If I wished to order that one should hang up posters about every seven Poles shot, there would not be enough forests in Poland with which to make the paper for these posters. Indeed, we must act cruelly.'"

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