Chapter XIII: Front Matter (13)

If other prisoners received from the German fascist murderers the right to a few breaths of fresh air a day, the Soviet people were deprived of even this privilege. I request the Tribunal to accept in evidence an original order, Exhibit Number USSR-424 (Document Number USSR-424), referring to Camp Number 44. I request the permission of the Tribunal to quote one sentence from Paragraph 7, entitled, “Walks for Prisoners of War.” I begin to quote:

“In special cases, when prisoners of war, engaged on work, have
their living quarters at the same place where they work and
therefore have no access to the open air, they should be allowed
to be taken out into the fresh air in order to maintain their
working strength.”

I further request the Tribunal to accept as evidence the original order addressed to Camp Number 46. This document is submitted as Exhibit Number USSR-425 (Document Number USSR-425). I would remind the Tribunal that the directive ruling the preceding order, “Walks for Prisoners of War,” was listed under Point 7.

I cite one sentence from Point 10 of Order Number 46. This Point 10 is also entitled, “Walks for Prisoners of War,” and the basis for this point is Order Number 1259, Part 5, of the Chief of the Section for Prisoner-of-War Affairs, dated 2 June 1943. I quote one sentence:

“In complement to Point 7 of the order addressed to Camp Number
44, dated 8 June 1943, it is explained that the order does not
apply to Soviet prisoners of war.”

I further request the Tribunal to accept in evidence the original request of the labor office of Mährisch-Schönberg. This request concerns the utilization of prisoners of war for nonagricultural work. I quote two sentences from this document. The passage which I have asked permission to quote is on Page 160 of the document book. I begin the quotation:

“The replacement of 104 English prisoners of war from Labor
Brigade for Prisoners of War E 351, currently employed in the
Heinrichsthal paper mills, by 160 Soviet prisoners of war, has
been rendered necessary by the labor shortage which has
developed in this factory. An additional allocation of English
prisoners, to raise the number to the required figure of 160, is
impossible, since after the last check of camp conditions,
undertaken a few months ago by competent Wehrmacht authorities,
it was decided that billets in the camp were only sufficient for
104 English prisoners of war, whereas the same space would
accommodate 160 Russian prisoners of war without any
difficulties whatsoever.”

I request Your Honors’ permission to quote one more document, namely Directive Number 8 regarding this camp, dated 7 May 1942. It is entitled, “The Utilization of Soviet Prisoners of War for Work.”

I submit this document in the original as Exhibit Number USSR-426 (Document Number USSR-426), and I request that it be added as evidence to the record of the Trial.

I quote the section entitled, “Measures for the restoration of full working capacities.” I think that the boundless cynicism and the cruelty of this document require no further comment:

“The Soviet prisoners of war are, almost without exception, in a
state of acute malnutrition, which currently renders them unfit
for a normal output of work.”

The General Staff of the German Armed Forces was particularly concerned over two questions: Firstly, with blankets for Soviet prisoners of war, and secondly, in what form the mercilessly murdered Soviet victims of the concentration camps should be buried. Both questions found their solution in one document.

I submit it to the Tribunal as Exhibit Number USSR-429 (Document Number USSR-429), and request that it be added as evidence to the record. Your Honors will find it on Page 162 of the document book. This is a directive of the 8th Military District, dated 28 October 1941. I begin the quotation:

“Re: Soviet Russian prisoners of war. The following arrangements
were decided during a conference of the OKW:

“1. Blankets. The Soviet Russians will receive paper blankets,
which they will have to manufacture themselves, in the form of
quilts, from paper tissue, filled with crumpled paper and
similar material. The material will be procured by the OKW.”

The second part, as Your Honors will notice, is as follows—the heading reads, “Burial of Soviet Russians”:

“Soviet prisoners of war are to be buried naked, without a
coffin, wrapped in packing paper. Coffins will be used only for
transports. In the labor commands the burial will be attended to
by the competent authorities. Burial expenses will be met by the
competent M-Stalag for prisoners of war. The stripping of the
bodies will be done by the camp guards. Signed: by order,
Grossekettler.”

But not only the administration of the military district was concerned with the methods for burying Soviet prisoners of war; the Ministry of the Interior was also concerned with this question, and an urgent letter was addressed to the camp specially marked, “Not for publication in the press, even in excerpts.”

I request the Tribunal to accept this document in evidence as Exhibit Number USSR-430. The members of the Tribunal can find this passage on Page 276 of the document book. I quote a few sentences from this fairly voluminous document—five sentences. I begin to quote:

“For the transport of the bodies (procurement of vehicles)
offices of the Wehrmacht should be contacted. For transportation
and burial a coffin is not to be requested. The bodies should be
completely wrapped up in paper, preferably in oiled paper,
tarpaulin, corrugated paper, or some other suitable material.
Both transportation and burial should be done unostentatiously.
When many corpses come in at the same time, burial should take
place in a common grave. The corpses should be laid at the usual
depth, side by side, not overlapping each other. As a site for
the burial a distant part of the cemetery should be chosen. Any
burial service and any decoration of the graves should be
disallowed.”

I omit the following sentence: “It is necessary to keep expenses as low as possible.”

But even in the special organizations of German fascism, specially created for the extermination of human life, the criminals still continued in their policy of racial and political discrimination. Actually, this discrimination could mean one thing only, namely, that one part of the camp prisoners came to their inevitable end, death, more rapidly than the other part.

And the criminals even tried to make the inevitable end more of a torment for those of their victims whom they, following the Nazi man-hating theories, designated as subhumans or considered capable of active resistance.

I request the permission of the Tribunal to read into the record one paragraph from a document already submitted as Exhibit Number USSR-415. This is a report of the Extraordinary State Commission of the Soviet Union on the “Crimes at Lamsdorf Camp” and the quotation will testify to the extent of the criminal Hitlerite activities. It concludes the presentation of evidence regarding this camp. Your Honors will find the passage in question on Page 146 of the document book, Paragraph 3. I quote:

“According to the findings of the special commission during the
existence of the Lamsdorf Camp, the Germans tortured to death
more than 100,000 Soviet prisoners of war. Most of these died in
the mines, in the various economic enterprises, or during
transportation back to the camp. Some were crushed to death in
the dugouts, many were killed during the evacuation of the camp.
Forty thousand prisoners of war were tortured to death in the
Lamsdorf Camp proper.”

Mr. President, the Soviet Prosecution begs to present one more witness, Doctor Kivelisha. He is a physician and his evidence is particularly important in establishing that there existed a special regime for Soviet prisoners of war in the camps. The Soviet Prosecution requests your permission to question this witness.

THE PRESIDENT: Yes, Colonel Smirnov.

[_The witness Kivelisha took the stand._]

THE PRESIDENT: What is your name?

DR. EUGENE ALEXANDROVICH KIVELISHA (Witness): Kivelisha, Eugene Alexandrovich.

THE PRESIDENT: Will you repeat this oath after me: I, and then state your name—a citizen of the Union of Soviet Socialist Republics—summoned as witness in this Trial—do promise and swear—in the presence of the Court—to tell the Court nothing but the truth about everything I know in regard to this case.

[_The witness repeated the oath._]

THE PRESIDENT: You may sit down, if you wish. Will you spell your name; will you spell your surname?

KIVELISHA: It is K-i-v-e-l-i-s-h-a.

THE PRESIDENT: Please, Colonel Pokrovsky.

COLONEL Y. V. POKROVSKY (Deputy Chief Prosecutor for the U.S.S.R.): What was your position in the ranks of the Red Army at the time of the attack on the Soviet Union by Hitlerite Germany?

KIVELISHA: At the time of the attack on the Soviet Union by Hitlerite Germany I was junior physician in the 305th Regiment of the 44th Rifle Division.

COL. POKROVSKY: Did your unit of the 305th Regiment of the 44th Rifle Division take part in battles against the Germans?

KIVELISHA: Yes, our 305th Regiment of the 44th Rifle Division participated in the battles from the first day of the war.

COL. POKROVSKY: On what date and under what circumstances were you captured by the Germans?

KIVELISHA: I was captured by the Germans on 9 August 1941, in the district of the City of Uman, in the Kirovograd region. I was captured at the moment when our unit and two Russian armies to which our unit belonged were surrounded by the Germans after prolonged fighting.

COL. POKROVSKY: What do you know about the treatment applied by the Germans to Red Army soldiers who were captured by the Hitlerite troops? What was the position of these prisoners of war?

KIVELISHA: I know only too well every form of barbarous mockeries applied to the Russian prisoners of war by the Hitlerite authorities and the Army, for the reason that I was a prisoner of war myself, for a very long time.

On the day I was captured, I was sent in convoy in a large column of prisoners of war to one of the transient camps. En route, talking to the prisoners with whom I marched—I stress the fact that this was on the very first day—I learned that the greater part of the prisoners had been captured 3 or 4 days before the small group to which I myself belonged.

During these 3 or 4 days the prisoners had been kept in a shed, under a reinforced German guard and were given nothing at all to eat or drink. Later, when we passed through the villages, the prisoners, on seeing wells and water, passed their tongues over their parched lips and made involuntary swallowing movements when their eyes fell on the water.

Later on in the same day we finished the march toward nighttime and the column of prisoners, 5,000 strong, was billeted in a farm yard where we had no possibility of resting after the long journey, and we were forced to spend the night in the open. This continued on the following day, and on this day too we were deprived of food and water.

COL. POKROVSKY: Was there no case when the prisoners, passing by water tanks or wells, stepped two or three paces out of line and tried to get at the water themselves?

KIVELISHA: Yes, I remember a few such cases and shall tell you of one particular incident which occurred on the first day of our march. It happened like this:

We were passing the outskirts of a little village. The peaceful civilian population came to meet us, and tried to supply us with water and bread. However, the Germans would not allow us to approach the citizens, nor would they let the population approach the column of prisoners. One of the prisoners stepped 5 or 6 meters out of the column, and without any warning was killed by a German soldier shooting from a tommy gun. Several of his comrades rushed to help him thinking that he was still alive, but they too were immediately fired on without warning. Some of them were wounded and two of them were killed.

COL. POKROVSKY: Was that the only incident you witnessed, or, during your transfer from one place to another, did you observe other cases of a similar nature?

KIVELISHA: No, this was not an individual occurrence. Almost every transfer from one camp to another was accompanied by the same kind of shootings and murders.

COL. POKROVSKY: Did they shoot only the prisoners of war, or were measures of repression adopted toward the peaceful citizens as well, toward the citizens who had tried to give bread and water to the captives?

KIVELISHA: Measures of repression were applied not only to the prisoners of war; they were also applied to the peaceful citizens. I remember once, during one of our transfers, a group of women and children attempted to give us bread and water, like the others, only the Germans would not allow them to come anywhere near us. Then one woman sent a little girl, about 5 years old, evidently her daughter, to the prisoners’ column. This little child came quite close to the place where I had passed and when she was five or six steps away from the column, she was killed by a German soldier.

COL. POKROVSKY: But perhaps the prisoners of war didn’t need the food which the population tried to give them; perhaps they were sufficiently well fed by the German authorities?

KIVELISHA: The prisoners of war on the transfer marches suffered from hunger to an exceptional extent. The Germans provided no food whatsoever en route from one camp to the other.

COL. POKROVSKY: So that these gifts from the local population were the only practical means possible to sustain the strength of the soldiers in German captivity?

KIVELISHA: Yes.

COL. POKROVSKY: Did the Germans shoot them?

KIVELISHA: You understand me correctly.

COL. POKROVSKY: In which prisoner-of-war camps were you interned? Name some of them.

KIVELISHA: The first camp in which I was interned was in the open, in a field, in the district of the small hamlet of Tarnovka. The second camp was situated on the site of a brick yard and former poultry farm on the outskirts of the town of Uman. The third camp was situated in the suburbs of Ivan-Gora. The fourth camp was situated on the territory pertaining to the stables of some military unit or other in the region of the town of Gaisen. The fifth camp was in the region of the small garrison town of Vinnitza. The sixth camp was in the suburbs of the small town of Dzemerinka and the last camp, where I stayed the longest time, was in the village of Rakovo, 7 kilometers from the town of Proskurov, in the Kamenetz-Podolsk district.

COL. POKROVSKY: So that you yourself, from your own personal experience, could realize the state of affairs prevalent in this series of camps?

KIVELISHA: Yes, in all the camps I was personally and completely acquainted with all the conditions.

COL. POKROVSKY: Are you a physician by profession?

KIVELISHA: I am a physician by profession.

COL. POKROVSKY: Tell the Tribunal how matters stood insofar as medical attention and food for the prisoners of war were concerned in the camps you have just enumerated.

KIVELISHA: When I was transported under convoy to the camp near the hamlet of Tarnovka, I was, for the first time and in company with other Russian doctors, separated from the rest of the prisoners’ column, and sent to the so-called infirmary.

This infirmary was in a shed with a concrete floor, without any equipment for the care of the wounded. And on this concrete floor lay a large number of wounded Soviet prisoners, mostly officers. Many had been captured 10 to 12 days before my arrival at Tarnovka. During all that time they had received no medical attention although many of them were in need of surgical aid, with simultaneous and frequent dressings and a number of drugs.

They were systematically left without water; food too was administered without any system at all; at least, at the time of my arrival in the camp there was no equipment to prove that food had ever been prepared or cooked for these wounded soldiers.

There were about 15,000 to 20,000 wounded in Uman Camp where I found myself on the second day after my arrival in Tarnovka. They were all lying in the open, dressed in their summer uniforms and a great many of them were incapable of moving.

Food and water were supplied to them in the same way as to the other captives in the camp. There they lay, without any medical attention, their dust-covered dressings soaked in blood, often in pus. Dressings, surgical instruments, equipment for an operating theater just did not exist in the camp at Uman.

In Gaisen prisoners of war, sick and wounded, were herded into one of the stables. This stable had no wooden floors and lacked every facility for human habitation. The prisoners of war were lying on the earthen floor, and here, too, as in the preceding camp, they did not have even an iota of medical attention. As before, dressings, drugs, and surgical instruments were unobtainable.

COL. POKROVSKY: You mentioned the Uman Camp. Look at this photograph and tell me, is it a photograph of one of the camps where you were interned?

KIVELISHA: I see on this photograph the camp which was situated in the grounds of the brick yard at the city of Uman. I know this picture very well.

COL. POKROVSKY: I must report to the Tribunal that the photograph I have just shown the witness is a photograph of Uman Camp and was submitted by me to the Tribunal as Exhibit Number USSR-345. It shows the camp concerning which witness Bingel has already testified.

[_Turning to the witness._] This means that you recognize Uman Camp situated in the grounds of the brick yard from this photograph?

KIVELISHA: Yes, in the grounds of the brick yard. It is a part of the camp.

COL. POKROVSKY: What was the prevailing regime in Uman Camp? Tell us just the main points, very briefly.

KIVELISHA: Almost all the captives in the camp were kept in the open air. The food was extremely bad. In the grounds of the Uman Camp, where I spent 8 days, twice a day a few fires would be lit out of doors and a thin pea soup was cooked in vats over these fires.

There was no special routine for distributing food to the prisoners of war, and the boiled soup would then be set down amongst the whole mass of people. No control whatsoever was exercised over the distribution. The starving prisoners rushed up in the hope of obtaining even a minute portion of this thin, unsalted soup, cooked without fat and served without bread.

Disorder and crowding arose. The German guards, all armed with clubs as well as with rifles and automatic guns, beat up all the prisoners of war within range of their blows for the purpose of maintaining order. The Germans would often intentionally set down a small barrel of soup among a great number of people, and once again, to restore order, they would beat up the absolutely innocent people with laughter, oaths, insults, and threats.

COL. POKROVSKY: Please tell me, Witness: In the camp situated in the village of Rakovo, was the quality of the food better or was it approximately the same as in other camps? And how did the food situation affect the health of the prisoners?

KIVELISHA: In the camp of Rakovo the food was exactly the same in quality as that of the other camps where I had been previously interned. It consisted of beets, cabbage, and potatoes frequently served half-cooked. Owing to this poor quality of food the prisoners developed severe gastric trouble accompanied by dysentery, which rapidly exhausted them and resulted in a very high rate of mortality from hunger.

COL. POKROVSKY: You talked about the guards often beating the prisoners on the slightest provocation and time and again without any provocation at all.

KIVELISHA: Yes.

COL. POKROVSKY: What kind of traumatic lesions did the prisoners receive as a result of these beatings? Were there any cases of severe traumatic injuries caused by heavy beatings or did the whole matter result in a few kicks only?

KIVELISHA: In Rakovo Camp I was in the so-called hospital, where I worked in the surgical section. Frequently, after dinner or supper in the hospital, prisoners were brought in with most grievous physical injuries. I frequently had to do all I could to help people who were so terribly injured by these beatings that they would die without regaining consciousness.

I remember a second case when two prisoners were beaten over the head with some hard object till the brains oozed out from the gaping head wound. I remember yet another incident, only too well, when an athlete from Moscow had an eye knocked out with a whip. The athlete then contracted meningitis and died soon after.

COL. POKROVSKY: How high was the mortality rate among the prisoners of war in Rakovo Camp?

KIVELISHA: The history of Rakovo Camp can be divided into two periods. There was the first which lasted about 2 years and ended in November 1941. At that time the number of prisoners was not very great and consequently the rate of mortality was not so high. Then there was the second period, from November 1941 to March 1942, at which time I was in Rakovo myself. During this second period the mortality rate was exceptionally high: there were days when 700, 900, and even 950 persons died in the camp.

COL. POKROVSKY: What disciplinary measures were there in Rakovo Camp and for what reasons were the prisoners punished? Do you know?

KIVELISHA: Yes. I know that there was, in the camp grounds, a cell for prisoners condemned to solitary confinement. Prisoners of war guilty of attempting to escape from the terrible conditions created for them in captivity, or with offenses such as stealing food products in the kitchen, were locked up in this cell.

It was in the cellar; it had a cement floor and windows with iron bars instead of panes. The prisoner was stripped to the skin, deprived of food and water, and locked up in solitary confinement for 14 days. I do not know of a single case where a prisoner survived this confinement; all of them died in that particular cell.

COL. POKROVSKY: Evidently the conditions which you have described to the Tribunal increased the number of persons suffering from exhaustion.

KIVELISHA: Yes.

COL. POKROVSKY: Did this condition result in a decreased number of prisoners capable of working? Did their number decrease; what was done to those prisoners who could not work?

KIVELISHA: An immense number of prisoners were kept, in Rakovo Camp, in stables which were quite unfit for human beings to live in during the winter period. At first everybody was made to work. I can safely say that most of this work was entirely aimless, since it consisted in pulling down houses and then paving the camp grounds with bricks from the demolished buildings. After some time, when severe gastric troubles had set in, troubles which I have already mentioned, fewer and fewer prisoners came out to work.

Many of them, who had lost all control of their movements, never even left the stables for the appointed meal times, and if a great many people were discovered to have lost their strength, a so-called quarantine was established. In such a stable all the exits and entries would be blocked and the patients would be completely isolated from the outer world. Having kept them locked up for 4 or 5 days on end, the stable would be opened and the dead brought out by the hundreds.

COL. POKROVSKY: Can you tell us, Witness, on what medical or sanitary work you and the other doctors were employed in the camp by the Germans?

KIVELISHA: In the camps we were not employed by the Germans on any work connected with the prisoners. All the Germans were interested in was the separation of people who could work from those of the prisoners who were incapable of working. We could not render the prisoners any purely medical services because of the conditions in which we ourselves existed.

COL. POKROVSKY: Did your duties in any of these camps include sanitary supervision? And what exactly was understood by sanitary supervision?

KIVELISHA: The duties of sanitary supervision were entrusted to us in the camp of the town of Gaisen. It only meant that we, the captured military doctors, had to be on duty in the vicinity of the general latrine in the camp, which was nothing more than a ditch dug for this purpose, and as and when the ditch was filled up with excrement, we were forced to clean up the ground.

COL. POKROVSKY: The doctors?

KIVELISHA: Yes, the doctors.

COL. POKROVSKY: Did you really consider this function as a form of sanitary supervision, or did you consider it as straightforward mockery by the Germans at the expense of the captured Soviet army doctors?

KIVELISHA: I consider that it was straightforward mockery at the expense of the captured Soviet doctors.

COL. POKROVSKY: Mr. President, I have no more questions to ask this witness.

THE PRESIDENT: Have any of the other prosecutors got any questions to ask?

COL. POKROVSKY: No, Sir.

THE PRESIDENT: Do any of the defendants’ counsel wish to ask any questions?

DR. LATERNSER: Witness, you have stated that in August 1941 . . .

THE PRESIDENT: Will you kindly announce your name for whom you appear.

DR. LATERNSER: Dr. Laternser, Defense Counsel for the General Staff and the OKW.

Witness, you have just stated that in August 1941 you were brought to captivity in the district of Uman. Do you know whether the Germans had taken many prisoners at that time?

KIVELISHA: Yes, I do know. About 100,000 prisoners were captured at that time.

DR. LATERNSER: Do you know whether German troops had advanced very rapidly into Russian territory at that time?

KIVELISHA: I cannot say anything about this. The German armies moved very rapidly, but before our units were surrounded we fought obstinately and we retreated, fighting, right up to 9 August.

DR. LATERNSER: How great was the number of prisoners in the column in which you marched?

KIVELISHA: Four thousand to five thousand persons.

DR. LATERNSER: When did you first get any food from the German troops?

KIVELISHA: I personally, and for the first time, received food from the German troops when I reached the town of Uman.

DR. LATERNSER: How much time had passed between the moment you were captured and your first meal?

KIVELISHA: When I was first fed I had been a prisoner of war for about 4 or 5 days.

DR. LATERNSER: You were a Red Army doctor and must have been quite aware that the feeding of armies is not so simple a matter.

KIVELISHA: I could not imagine this, especially as the Germans had then at their disposal time and many possibilities for supplying the prisoners of war with food. Further, to my previous statements I shall again repeat that if the German authorities were unable to provide the prisoners of war with food, the peaceful population did everything in their power to feed the Russian prisoners. However, obviously neither the German authorities nor the German Command issued any instructions on this matter.

I have already reported that no opportunity was given for friendly relations between the prisoners of war and the peaceful citizens. On the contrary, any persons who tried to bring food to the prisoners or any prisoner who accepted the food from the citizens was promptly shot.

DR. LATERNSER: But you can certainly imagine that it must have presented immense difficulties if, as you have just testified, 100,000 prisoners had been taken at that time in the area of Uman?

KIVELISHA: Not all the prisoners of war were concentrated at Uman at one and the same time. There were several stationary and permanent camps, only several of them were at Uman.

DR. LATERNSER: I was not speaking about the food problem in Uman Camp. We are still talking about the feeding during the first days after their capture.

KIVELISHA: When I was brought into captivity I was not singled out in any way from among the other prisoners of war. I was fed and I was supplied in exactly the same way as all the others. I was one of the general crowd and the general column of the prisoners of war. The German Command made no distinction in the first days of captivity.

DR. LATERNSER: But you will have to admit that there were certain difficulties connected with food supplies which would arise if quite unexpectedly a column, such as yours, 5,000 men strong, had to be fed by rapidly advancing troops.

KIVELISHA: Even if the German Command had been faced with this particular difficulty, the problem could always have been solved by allowing the prisoners to accept the food products which the peaceful population, the Soviet citizens, were offering them.

DR. LATERNSER: We shall talk about that immediately. You say you were in a column of 5,000 prisoners. Can you tell me how strong the guard was, the German guard, under whom this column of 5,000 marched?

KIVELISHA: I cannot state the exact figures. But there were a great many German machine gunners. The column was too drawn out in length and I am unable to state the figure.

DR. LATERNSER: I understand that you cannot give the exact figures. But can you describe to the Tribunal how great the distance was between individual guards marching alongside the column?

KIVELISHA: The distance would be as follows: two or three soldiers, walking in a row, would march approximately five or six steps behind a second row of the same number.

DR. LATERNSER: Thus, every 50 to 60 meters, on either side of the column, or perhaps only on one side of the column, German troops marched in groups of two and three soldiers, as you say, or have I not understood you correctly?

KIVELISHA: Not 50 to 60 meters; 5 to 6.

DR. LATERNSER: Were the guards elderly men or were there younger soldiers among them?

KIVELISHA: They were soldiers of the German Army. They were of every age.

DR. LATERNSER: Were the Russian prisoner-of-war columns informed, before they started, that they would be shot if they left the ranks?

KIVELISHA: I have already said, and I repeat once again, there were no warnings.

DR. LATERNSER: Not even when the column set off?

KIVELISHA: No.

THE PRESIDENT: Perhaps it would be a good time to break off till 2 o’clock.

[_The Tribunal recessed until 1400 hours._]

_Afternoon Session_

THE PRESIDENT: The Tribunal has made its decision upon the witnesses and documents to be called and produced on behalf of the first four defendants and that decision will be communicated as soon as possible this afternoon to counsel for those defendants and will also be posted in the Defendants’ Information Center.

Secondly, an application was made some time ago by the Chief Prosecutor for France with reference to the calling of two additional witnesses. The Tribunal would wish that if it is desired to call any witnesses after closing the case on behalf of any of the chief prosecutors, that a written application should be made to the Tribunal for the calling of such witnesses, and the Tribunal also desires me to draw the attention of Counsel for the Prosecution and Counsel for the Defense to the terms of Article 24, Subsection (e), which refers to rebutting evidence. In the event of Counsel for the Prosecution or Counsel for the Defense wishing to call rebutting evidence when the proper time comes, after the case for the Prosecution and the Defense has been closed, such application to call rebutting evidence must be made to the Tribunal in writing.

SIR DAVID MAXWELL-FYFE: My Lord, I wonder if the Tribunal would allow me to say something on a matter on which I promised to get information yesterday.

Your Lordship will remember that Dr. Horn asked for a withdrawn edition of the _Daily Telegraph_ of the 31st of August 1939, and I promised the Tribunal that I should make inquiries. I had a telegram from the _Daily Telegraph_, which I received this morning, and it says:

“No edition of the _Daily Telegraph_ withdrawn on 31 August 1939
or any other day thereabouts. The _Telegraph_ of the 31st gave a
brief paragraph saying meeting Henderson-Ribbentrop had taken
place but without details.

“On 1st September carried summary of Germany’s 16 points for
Poland as broadcast by the German radio. Actual text of the note
did not appear until September 2, when extracted from the
Foreign Office White Paper of all relevant documents.”

I thought it was only right, as I had promised to get the information, that I should put it before the Tribunal, and I propose to send a copy of that to Dr. Horn.

THE PRESIDENT: Thank you, Sir David. I think that may necessitate a slight variation in the order which the Tribunal was proposing to make.

DR. NELTE: Regarding the question of Generals Halder and Warlimont as witnesses, Mr. President, permit me to ask you to answer one question; namely, to tell me if the Court has decided yet that the Generals Halder and Warlimont, whom I have named as witnesses, and whose relevancy has been admitted by the Prosecution, will be approved as witnesses for Keitel so that we can count with certainty on their appearing in the proceedings.

THE PRESIDENT: Yes, certainly. What I meant to state this morning was that the Defense Counsel should decide whether they wanted to have them to cross-examine them now or call them as witnesses on behalf of one or other of the defendants, and therefore that was a decision that the Defense Counsel would be able to call them on behalf of one of the defendants if they determined to do so.

Therefore they can be called for Keitel, unless, of course, they were called before. If the Defendant Göring wanted to call them then they would have to be examined on behalf of Keitel when they were called for Göring, because of the fundamental rule that a witness is only to be called once.

DR. NELTE: Very well. I wish to state that the Defense Counsel who are interested in the interrogation of Generals Halder and Warlimont are agreed that these generals should be called in the course of the presentation of evidence by the Defense.

THE PRESIDENT: Yes, very well.

Colonel Smirnov . . . I beg your pardon. Dr. Laternser.

DR. LATERNSER: I have a few more questions to ask this witness.

Witness, you said this morning that for rest during their march to the camp the four or five thousand Russian prisoners were accommodated in a stable. Was this stable roofed?

KIVELISHA: It was the usual type of country cow shed, and since the farm had previously been evacuated, the shed had not been cleaned for a very long time and was in a state of complete neglect. And if we add to this state of neglect the fact that it had been pouring with rain all that day, we must also add that it was half-swamped in soft mud. It was quite impossible to settle down in the stables and barns since they were filled with left-over manure, so that all the people stayed out of doors.

DR. LATERNSER: Was it possible in this case to accommodate these prisoners in a better way?

KIVELISHA: It is very difficult for me to answer that question, for I am not at all acquainted with the locality where I was captured, and, on the other hand, we were brought to this village late at night and I do not know whether there were more convenient places where the prisoners could have been quartered.

DR. LATERNSER: That is to say, on this evening when you entered this village, you yourself saw no possibility for better accommodations?

KIVELISHA: It is not because I did not see better quarters, but because it was night and I could not therefore observe the village, although it was a rather large village and it seems to me that there was a sufficient number of large houses where 5,000 to 6,000 people might have easily been billeted more conveniently for the night.

DR. LATERNSER: I shall have one last question. You said that in the prisoner camp you were not employed in your capacity as a physician. Did the German prisoner-of-war administration ever place any medical supplies at your disposal so that you could treat your sick comrades?

KIVELISHA: In the first stages, when we were being evacuated step by step from one camp to another, we received no medical equipment at all from the Germans; but subsequently when I was in a stationary camp, Stalag 305, medical equipment was issued, though never in sufficient quantities to meet the requirements of all the wounded.

DR. LATERNSER: I have no further questions.

HERR LUDWIG BABEL (Counsel for the SS and the SD): I have only one question. The witness has stated that the stable was evacuated. What do you mean by that term?

KIVELISHA: By that I mean that all the cattle in the stable had been driven off beyond the zone of military operations.

HERR BABEL: By whom was this done?

KIVELISHA: It was done by the citizens of the village we had entered and who had retreated eastwards, together with Red Army units who had not been surrounded as we were.

HERR BABEL: That is to say, the cattle had been brought back to Russian territory?

KIVELISHA: From this village, yes.

HERR BABEL: Thank you.

THE PRESIDENT: Do any other defendants’ counsel wish to ask questions?

Witness, were any SS units used for guarding the prisoners of war whilst you were prisoner of war?

KIVELISHA: In the camp of Rakovo; in the district of the town of Proskurov, where I was interned most of the time, the convoying of labor Kommandos was carried out by young German soldiers who, at that time, were named the SS.

THE PRESIDENT: Was that a stationary camp?

KIVELISHA: Yes, it was a stationary camp.

THE PRESIDENT: But SS units were not used to guard you until you got to that stationary camp?

KIVELISHA: I cannot say anything definite on the subject, since I did not know the distinctive insignia of the German Army.

THE PRESIDENT: Colonel Smirnov, do you want to ask anything in re-examination?

MR. COUNSELLOR SMIRNOV: I have no further questions to ask the witness.

THE PRESIDENT: Then the witness can retire.

[_The witness left the stand._]

MR. COUNSELLOR SMIRNOV: May I continue, Mr. President?

THE PRESIDENT: Yes.

MR. COUNSELLOR SMIRNOV: I request the Tribunal to accept as one of the proofs of the Hitlerite crimes perpetrated in the prisoner-of-war camps certain documents which I should like to submit to the Tribunal at the request of our honorable British colleagues. The Soviet Prosecution does this all the more readily in that it considers this documentation of the British Prosecution of essential importance in establishing the criminal contravention by the major Hitlerite war criminals of the laws and customs of war accepted by all civilized nations for the treatment of prisoners of war.

I would ask the Tribunal to add to the documentation of the Trial the documents of the British Delegation, which I have presented as Exhibit Number USSR-413 (Document Number UK-48) regarding the cruel murder of 50 prisoners of war, officers of the Royal Air Force, who were captured while attempting to escape en masse from Stalag Luft III at Sagan and shot after their capture by the German criminals in the night of 24-25 March 1944.

These documents consist of an official record of the Hitlerite crimes, signed by Brigadier Shapcott, representative of the British Armed Forces, and the attached minutes of the court of inquiry held in Sagan by order of the senior British officer in Stalag Luft III and forwarded to the protecting power.

Included with these documents are the statements of the following Allied witnesses: Wing Commander Day, Flight Lieutenant Tonder, Flight Lieutenant Dowse, Flight Lieutenant Van Wymeersch, Flight Lieutenant Green, Flight Lieutenant Marshall, Flight Lieutenant Nelson, Flight Lieutenant Churchill, Lieutenant Neely, P. S. M. Hicks.

The material evidence is also corroborated by statements taken from the following Germans: Generalmajor Westhoff, Oberregierungs und Kriminalrat Wielen, Oberst Von Lindeiner.

There is also a photostatic copy attached of the official list of those who perished, handed over by the German Foreign Office to the Swiss Diplomatic Mission in Berlin, and the report of the representative of the protecting power during his visit to Stalag Luft III on 5 June 1944.

I shall briefly summarize the circumstances of this infamous crime of the Hitlerites by quoting from the report of Brigadier Shapcott. Your Honors will find the passage which I am about to quote on Page 163, Paragraph 2 of the document book. I begin:

“On the night of 24-25 March 1944, 76 R.A.F. officers escaped
from Stalag Luft III at Sagan in Silesia where they had been
confined as prisoners of war. Of these, 15 were recaptured and
returned to the camp, 3 escaped altogether, 8 were detained by
the Gestapo after recapture. Of the fate of the remaining 50
officers the following information was given by the German
authorities. . . .”

The following information was given by the German authorities who stated that these 50 officers were shot, allegedly while attempting to escape. Actually this statement was the customary routine lie of the Hitlerites, since the very thorough investigation carried out by the British military authorities proved indubitably that the British R.A.F. officers had been vilely murdered after recapture by the German police.

I submit evidence to this effect and quote the report presented by the British Prosecution. It was ascertained that this crime was committed by order of Göring and Keitel. The passage which I wish to submit to the Tribunal is on Page 168 of the document book, Russian text.

THE PRESIDENT: Yes, Dr. Nelte?

DR. NELTE: The Tribunal will recall that the question of hearing the witness Major General Westhoff has already played a role here once before. The Prosecution at the time—I do not have the document here now—submitted a report regarding the interrogation of Major General Westhoff; that is to say, the Tribunal, upon my objection, refused to have this document read in Court.

I do not know whether, as the prosecutor is now speaking of the testimony of Major General Westhoff, it concerns the same document which the Tribunal previously refused to admit or whether it concerns a new document which I do not know as yet. I draw your attention to the fact that General Westhoff is here in person; in other words, he could be called as a witness on this question.

MR. COUNSELLOR SMIRNOV: Permit me to say, Mr. President . . .

THE PRESIDENT: Colonel Smirnov, you have heard what Dr. Nelte said. As I understood it—I am not sure if I got the name right—but he referred to General Westhoff’s evidence which has been tendered, and which had been rejected because the Tribunal thought that if that evidence was to be given, General Westhoff ought to be called. Is it right that the document you are putting in has got nothing to do with General Westhoff at all, has it?

MR. COUNSELLOR SMIRNOV: Westhoff is mentioned in only one part of the official British report.

THE PRESIDENT: But it is not a report made by General Westhoff, is it?

MR. COUNSELLOR SMIRNOV: That is perfectly correct. I am now submitting an official British report to the Tribunal. Only one passage in the text of the official British report mentions Major General Westhoff, but this mention has nothing to do with the interrogatory of Major General Westhoff which will be brought up later.

MR. G. D. ROBERTS (Leading Counsel for the United Kingdom): My Lord, perhaps I might assist in this matter—because I am partly responsible for that report—with the kind indulgence of my learned friend, my Russian colleague.

My Lord, the document which is now about to be read is a British official government report under Article 21 of the Charter, and the original is properly so certified. My Lord, it is quite true that General Westhoff’s name is mentioned in the report, but it is quite a different document to the document which my French colleagues tendered and which the Tribunal rejected in evidence. It is an official government report.

MR. COUNSELLOR SMIRNOV: That is just what I have been saying, Your Honor. This is an official report of the British Government.

THE PRESIDENT: One moment, Colonel Smirnov.

Mr. Roberts—I just wish to speak to Mr. Roberts, Dr. Nelte—why do you say that it is an official government report so as to come within Article 21 of the Charter?

MR. ROBERTS: Because the original has been handed in and it has been certified by Brigadier General Shapcott of the Military Department of the Judge Advocate General’s office. I think you have the original.

THE PRESIDENT: Yes, I have the original. Mr. Roberts, to whom was it made, this report?

MR. ROBERTS: My Lord, it was made in connection with the collection of evidence for this Tribunal. As Your Lordship sees, it is headed, “German War Crimes. Report on the Responsibility for the Killing of 50 R.A.F. Officers,” and then it starts to say—then it states the sources on which the material has been based. Your Lordship will see on the last page of the report the appendix, “Material upon which the foregoing report is based”:

“1. Proceedings of Court of Inquiry held at Sagan. . . . 2.
Statements of the following Allied witnesses. . . . 3.
Statements taken from the following German. . . . 4. Photostat
copy of the official list of dead, transmitted by the German
Foreign Office to the Swiss Legation. . . . 5. Report of the
Representative of the Protecting Power on his visit to Stalag
Luft III on 5th June 1944.”

THE TRIBUNAL (Mr. Biddle): Mr. Roberts, was this made for the Tribunal or for the War Crimes Commission?

MR. ROBERTS: It was made for this Trial.

THE TRIBUNAL (Mr. Biddle): Made for this Trial?

MR. ROBERTS: For this Trial.

THE TRIBUNAL (Mr. Biddle): By a general in the Army?

MR. ROBERTS: Yes, My Lord.

THE TRIBUNAL (Mr. Biddle): And he reported to whom?

MR. ROBERTS: My Lord, it was then submitted to the British Delegation for this Trial.

THE TRIBUNAL (Mr. Biddle): You mean the Prosecution?

MR. ROBERTS: Yes, My Lord.

THE TRIBUNAL (Mr. Biddle): So this is the report of a British general made to the British Prosecution?

MR. ROBERTS: My Lord, I would not quite, with respect, accept the phrase “report of a British general.” I would say “a report of a government department.” It is signed and certified by a British general.

THE TRIBUNAL (Mr. Biddle): Yes.

MR. ROBERTS: My Lord, I submit most respectfully that My Lords may exactly read in Article 21: “The Tribunal shall take judicial notice of official governmental documents and reports of the United Nations. . . .”

My Lord, I submit that this is clearly an official governmental document, a report made by a department of the Army in London, a government department, for the purpose of this Trial.

THE TRIBUNAL (Mr. Biddle): Then any evidence that was collected and sent in by the government will be official evidence.

MR. ROBERTS: I think that is so under Article 21, that is, as I read it and as I respectfully submit to Your Lordship.

THE PRESIDENT: Do you wish to add anything, Dr. Nelte?

DR. NELTE: Yes, I should like to make a few further remarks.

It is, in other words, a report which was drawn up on the basis of testimony by witnesses, among whom, as I understand, was also Major General Westhoff. I do not challenge the official character of this document, or that you can and must accept it as evidence under the terms of the Charter. But it seems to me that another question is involved here, namely, the question of better evidence. If a witness, who is at the disposal of the Court, could be eliminated by including his testimony in an official report, then the taking of evidence would not comply with the Tribunal’s desire that it should represent the best method to discover the truth.

The witness is at your disposal; the report does not contain literally what he said, but simply a conclusion the accuracy of which is subject to doubt, whereas it need not remain in doubt. But I believe the Defense must also have an opportunity in their turn, to hear and examine a witness, if it is as easily possible as in this case.

THE PRESIDENT: But Dr. Nelte, supposing that one of the witnesses who had been examined by one of the committees set up by the government had not made a report to the government at all, but an affidavit or something of that sort; and that had been offered to the Court and the witness had been available, the Court might very possibly have refused to entertain that affidavit or report. But if that report was the foundation for a government report or for a government official document, then, by Article 21, the Tribunal is directed to entertain such a report.

Therefore, the fact that the Tribunal has already said that they wouldn’t have some private affidavit or report of General Westhoff unless General Westhoff were called, is not relevant at all. It is a question whether they ought to entertain a report which you admit comes within Article 21.

DR. NELTE: I do not doubt that Your Lordship’s view is correct. I should merely like to bring up the question whether, when one has two different types of evidence, namely, the report and the possibility of examining a witness, it should not be taken into consideration to question the witness, not in order to correct the official report, but in order to clarify what the witness actually said, because from the report we cannot know what he actually said.

This question is, as you will understand, of tremendous importance for the Defendant Keitel, who allegedly issued an order to shoot the escaped fliers and if a witness who could clarify this question is available, this witness should be heard instead of an official report which already actually contains an evaluation.

THE PRESIDENT: But in the first place this report does not proceed only or even substantially upon the evidence of General Westhoff. There are a number of other origins of the report, and the second thing is that the whole object of Article 21 was to make government reports admissible and not to necessitate the calling of the witnesses upon whose evidence they proceeded.

DR. NELTE: The other witnesses were interrogated on all other matters, namely, the shooting. . . The other witnesses who were mentioned were questioned on other facts. On the question of whether Keitel issued such an order at all, General Westhoff is the only one mentioned in the report.

THE PRESIDENT: Would you repeat that? I do not have my earphones on.

DR. NELTE: I said, in that report other witnesses are also mentioned but, as far as I know, they did not make a statement on the question of whether or not Keitel issued an order to shoot the fliers. Westhoff was the only one among the witnesses listed who could and did make a statement on that question.

THE PRESIDENT: Do you wish to say anything further in argument upon the admissibility of the document?

DR. NELTE: No.

THE PRESIDENT: Colonel Smirnov.

MR. COUNSELLOR SMIRNOV: It appears to me, Mr. President, that that part of the document which refers to Major General Westhoff occupies merely one paragraph, namely, Paragraph 7, of the document in question. This part deals with the initial stage of the perpetration of the crime, namely, with the stage of the conception, the stage of the planning of the crime.

The document also speaks of other stages in the commission of this crime. Moreover, it is an official document, presented according to Article 21 of the Charter. It seems to me that I have thereby said all that is necessary, Mr. President.

THE PRESIDENT: Do you wish to say anything further, Dr. Nelte?

DR. NELTE: No, thank you. I merely ask the Court to decide; in that case I should have to request that General Westhoff be admitted as a witness to testify that the conclusion drawn in this report does not correspond with what he said.

DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen and for the Reich Cabinet): May I make a few legal remarks, a few generally legal remarks regarding Article 21 of the Charter?

In all criminal procedure of every country we find the primary principle of oral court proceedings. Only if this cannot be carried out are part of the proceedings, so to say, transferred outside the court. In most codes of criminal procedure of the various countries we have a provision similar to that of Article 21 of the Charter that previous decisions of a court should not be re-examined in new proceedings, but that such decisions should be binding.