Count One - Crimes Against Peace: Berger
There is no evidence whatever that the defendant Berger had knowledge of Hitler's aggressions. While, without question, he vigorously engaged in waging wars, there is nothing to indicate that he knew that they were aggressive or in violation of international law.
He should be and is acquitted under count one.
Count Five - War Crimes and Crimes Against Humanity; Atrocities and Offenses Committed Against Civilian Populations: Berger
Berger became Chief of the Main Office SS (SSHA) on 1 April 1940. In 1938 he established the Replacement Office of the General SS in the SS Main Office (SSHA). On 1 October 1939 he became chief of this replacement bureau. On 1 January 1940 the replacement office was transferred to the replacement office of the Waffen SS.
Although Berger, in his interrogations prior to trial, said he began with the SSHA on 1 January 1940, he claims that this was an error, and he actually became head of it on 1 April 1940, and we accept his statement with respect thereto.
In July 1942 he became Himmler's liaison officer for the Ministry for Eastern Territories and, although he was slated to become state secretary for that Ministry, this never materialized, but he became chief of its political directing staff. There is a dispute as to how long he held this position; he contends that he only gave it part time attention, signed no orders, and was not responsible for any dispositions made by that office.
On 1 October 1944 he was appointed Chief of Prisoner-of-War Affairs but not of the transient camps or those in operational areas or in Norway. Transient camps are those in which enemy soldiers taken prisoners are temporarily confined until they can be transferred to permanent prisoner-of-war camps in the rear. He was appointed Commander of Military Operations in Slovakia on 31 August 1944, stayed there for 2 weeks crushing the revolt which had broken out in Slovakia, was then recalled to the field command staff of Himmler and returned to Slovakia for 5 or 6 days, and was then transferred back to Berlin.
Berger's attitude toward Jews is shown in the agreement which he made, acting for Himmler, with the Minister of the Eastern Territories in March 1943 (NO-1818, Pros. Ex. 2338):"The aim of this indoctrination is to convert the non-German members of the Indigenous Security Units to convinced co-fighters against bolshevism and for the all-European New Order. Special attention is to be paid to the following points:
* * *
"2. Tying up with the strong instinctive anti-Semitism of the eastern nations; the Jewish face of bolshevism; Jewry as motive power behind bolshevism, as well as the capitalism of the Western Powers; Jewish aims for world domination and the various ways toward it; world revolution and capitalism; the nationalist disguises of Jewish bolshevism; Stalin's army as a power instrument to gain Jewish world domination with the blood of other peoples * * *.
"3. The Reich's and its Fuehrer's fight against world Jewry * * *.
"4. Realization of the new European community of nations under the Reich as the leading, protecting, and marshalling power; the common work and fight of the European nations against the Jewish aims for world domination; causes, meaning, and underlying reasons of the war; Jewry as the instigator of the First and Second World Wars; Germany and Europe's allies in a common front in fight against Jewish-capitalist and the Jewish-Bolshevist powers; the hard necessities of the war; common work, common sacrifices, and common fight for the new Europe."
As Chief of the SS Main Office, Berger prepared and distributed "guidance pamphlets" to be used by the SS organizations. Some of them discussed anti-Semitism, both specifically and in connection with other problems. The following is a sample (NO-2819(a), Pros. Ex. 2350; NO-2501, Pros. Ex. 2353):"We National Socialists believe the Fuehrer when he says that the annihilation of Jewry in Europe stands at the end of the fight instigated by the Jewish world parasite against us as his strongest enemy. But until this annihilation is completed, we must always remember that the Jew is our absolute enemy, stopping at nothing, who, with respect to us, has only one goal, our complete annihilation.
"It is our task not to Germanize the East in the old sense, that is, to bring the German language and German laws to the people living there, but to take care that only people of genuine Germanic blood are living in the East." [From the SS Main Office pamphlet, Safeguarding Europe.]
The SS also printed and published a pamphlet called "The Subhuman," from which the following is a quote (NO-1805, Pros. Ex. 2357):"The subhuman, this apparently fully equal creation of nature, when seen from a biological viewpoint with hands, feet, and a sort of brain, with eyes and a mouth, nevertheless is quite different, a dreadful creature, is only an imitation of man with man-resembling features, but inferior to any animal as regards intellect and soul. In its interior, this being is a cruel chaos of wild, unrestricted passions with a nameless will to destruction, with a most primitive lust, and of unmasked depravity * * *. Now here they come again, the Huns, caricatures of human faces, nightmares that have come true, a blow in the face of everything good, allied with jungle nature and the scum of the whole world, but the suitable tools in the hand of the wandering Jew, that master of organized mass murder. Only for the dumb are they camouflaged in the dress of the bourgeois * * *. This time the Jew wanted to be fully certain. He appointed himself as officer, as commissar, as decisive leader of the subhumans * * *. The beasts in human form, the true leaders of the underworld, sowed by Ahasuerus who originates from the dark, stinking ghettos of eastern cities."
Berger asserts that he did not like this pamphlet, and that it was thrust upon him by Himmler, and that he did not father its distribution. However, on 31 March 1942 he wrote Himmler reporting a visit to Reich Party Treasurer Schwarz, where he showed him this pamphlet and asked for his support, stating that Schwarz liked it very much and said that every German family should have it, and he would support its circulation.
The following is an extract from a pamphlet prepared by the SS Main Office at Berger's orders for distribution to Wehrmacht units in the East (NO-2818, Pros. Ex. 2349):"This war is the Jewish world fight against the liberation of mankind from the spiritual and material servility (sic servitude) of all Jewry, while on Germany's side, it has become the fight for the liberation and maintenance of mankind against all attempts of Jewish world domination.
"For us there exists only one decision: fight against bolshevism and fight against the plutocracies. Our victory over both means the annihilation of Jewry and therefore the pacification of the nations and securing a new world order."
Another example of the kind of material which was found in this ideological training material is a letter of an SS Untersturmfuehrer to his wife (NO-4404, Pros. Ex. 3504):"Together with three other soldiers I received an order tonight to shoot two members of the Red Army so that they cannot be of danger to us any more. They were ragged and apathetic, just like animals. I give a spade to each of them, and they begin to dig their own graves, and I light a cigarette in order to calm down. There is no sound - Russians have no souls, they are animals, they became animals during the past years. They don't beg for their lives, they don't laugh, they don't cry. Three guns are pointed at them. All of a sudden one of them starts to run, but he does not get far, 20 meters, he is dead. The other does not move; he steps into his hole, and then he is dead, too. Two minutes later, the earth covers everything -- we light another cigarette."
Berger admits that this is an extract from one of his pamphlets.
The witness von dem Bach-Zelewski was called by the prosecution and testified that he was a Higher SS and Police leader assigned to Russia Center in 1941, and he held that position up to 1942. Early in 1943 he became a commander of First Motorized SS Brigade and chief of the anti-partisan units. This position he held during the year 1943.
He testified to having heard Himmler's infamous Poznan speech in 1943, and that Berger was there and that [1919-PS, Prosecution] Exhibit 2368 is that speech.
With regard to the Dirlewanger unit, he testified that it was subordinated to him in 1942, and that a regiment of the brigade was assigned to him in 1944 for approximately 6 weeks; that Dirlewanger had an authorization from Himmler which made him the competent judicial officer over his men, and that there were special legal provisions in force for this one battalion, and Dirlewanger could himself pass the death sentence which other SS officers in other SS units could not do; that Dirlewanger had an identity card and a Wehrmacht pass showing that he was a member of the SS Main Office and that his competent judicial officer was Berger; that the Dirlewanger unit came to Russia fully equipped with equipment from the SS Main Office of Berger; that Dirlewanger reported to the witness whenever he went to see the Chief of the SS Main Office (Berger) and showed him the correspondence between Berger and Dirlewanger, and also reported the results of the conferences and of the arrival of shipments of equipment and supplies; that Dirlewanger was a close friend of Berger's who had procured his position; that the official connections between the two were of an intimate nature. He testifies that after the notorious Kaminsky was executed a deputy of Berger's from the SSHA came and reorganized his brigade, which was subordinate to Berger; that Dirlewanger called Berger by his first name, which was most unusual; that the witness and other SS officers looked upon Berger as Himmler's mouthpiece, and that Berger was the power behind the throne so far as Himmler was concerned; that the Dirlewanger unit and other anti-partisan units were under the witness's tactical command; that in 1943 continual complaints were made about Dirlewanger's behavior and that Lieutenant General Schwarznecker made complaints that Dirlewanger had shot a large number of people in reprisal measures.
He states that Kube's staff preferred more serious complaints against Dirlewanger, which the witness reported to Berger. He admitted that the subordination of Dirlewanger to Berger only referred to recruiting, equipping, arming, and supplying everything that the troops needed, except munitions which they got from the Wehrmacht and that so far as combat was concerned, Berger never had anything whatsoever to do with it.
With regard to Himmler's Poznan speech, he does not think that the word "extermination" was used with regard to Jews. He testifies that the Kaminsky brigade was subordinate to the SSHA in the same manner as the Dirlewanger brigade, but that Berger was not responsible for the assignment of the brigade to Warsaw, out of which arose the affair which led to his arresting Kaminsky, having him court-martialed, and shot.
Defense witness Walter Hennings testified that Berger was the competent judicial authority for offenses against the general penal code and against the military penal code for the SS and the Waffen SS, but he was not superior to the Higher SS and Police Leaders, who had their own judicial authority, but in these matters their jurisdiction overlapped; that both before and after 1943 the SSHA chief was merely competent as judicial authority over the members of the office who were in that office, and not those located in other places, such as for instance, at the front. He admits that the Dirlewanger unit was composed not only of poachers, but also of purely criminal offenders, and if Dirlewanger had committed any atrocities it was Berger's duty to have him investigated and conduct proceedings against him.
On 10 October 1943 the RSHA issued orders that in all matters concerning "mainly the East," the Chief of the SSHA, SS Gruppenfuehrer (Lieutenant General) of the Waffen SS Berger (who was appointed by Himmler as liaison officer to the Ministry for the Eastern Territories), should receive a draft or be informed in an appropriate way.
On 17 July 1942 Berger reported to Himmler that after discussions with Gauleiter Meyer he had been promised that he, Berger, would receive all files of the Eastern Ministry for the personal, confidential information of Himmler. It thus appears that Berger had obtained an informer in Rosenberg's confidential staff.
On 14 August 1943 Berger received from Himmler, with the request that he confidentially inform Rosenberg concerning the same, the report of Obersturmbannfuehrer Strauch of 20 July 1943, concerning Reich Commissioner Kube who had strongly objected to Strauch's arrest of Jews employed by Kube, asserting that it was a serious violation of his jurisdiction, and that neither Himmler nor von dem Bach-Zelewski had authority to interfere with that jurisdiction, and while Kube could not by force prevent the SD from carrying out the arrests, he would, in the future, refuse to cooperate and would no longer permit the Secret Police to enter his official building. In this conference Kube called attention to the mistreatment of three White Ruthenian women in a sadistic way by SS Officer Stark who, he claimed, had unlawfully taken away a suitcase of jewels and valuables. Strauch informed Kube that he had investigated the matter and that there was no reason to instigate any proceedings against Stark who had acted on Himmler's orders; that Kube protested that Himmler had no right to order them to take any valuables away.
Strauch even complained that Kube had raised objections because expert physicians had removed, in a proper way, the gold teeth fillings from the mouths of the Jews who had been designated for special treatment, and stated that this was "unworthy of a German man of the Germany of Kant and Goethe," and that the reputation of Germany was being ruined in the whole world. Strauch virtuously objected that "we," in addition to having to perform this nasty job, "were also the targets of mud slinging." (NO-4317, Pros. Ex. 2373.)
The second of these reports, dated 25 July 1943, from Strauch to von dem Bach-Zelewski regarding Kube's attitude states, namely, that the latter had displayed an absolutely impossible attitude toward the Jewish question and was hostilely disposed to the SS; that his area commissioner, Hachmann, on the same question was impossible and he was being retained by the Gauleiter despite all warning voices; that he had complained about a Wachtmeister who had supposedly shot Jews as "swine."
Strauch proceeds to give a number of examples, and states that Kube had gone so far as to thank a Jew who, at the risk of his life, had gone into a burning garage and saved the latter's car; that when an action was planned against the Jews in Minsk Ghetto (of which Kube had been previously informed), and which was to be accomplished by telling the Council of Elders that 5000 Jews of that area were to be resettled, Kube disclosed the actual intention of the Secret Police, and it was an established fact that he had used his knowledge to attempt to rescue the Jews; that therefore they had to be taken by force and the use of firearms, at which point of the operation Kube appeared and overwhelmed the commander with abuse concerning the unheard-of-happenings which allegedly occurred when the Jews were herded together; that the Gauleiter used very rough language which considerably hurt the sensitive feelings of the commander; that Kube was said to have gone so far as to distribute candy to Jewish children; and that on 4 March 1942 he had threatened to accuse SS Obersturmfuehrer Burckhardt of theft because the latter had taken two typewriters from the ghetto without a regular receipt; that Kube had evidently complained to Rosenberg about mistreatment of Jews in Minsk; that, while Kube made anti-Jewish speeches, his actions belied his words and were only made with the intention to cover himself for later days.
Strauch stated that apparently Kube assured the German Jews, who had arrived at the ghetto before Strauch's time, that their lives and health would be preserved; that he had praised the works of the Jewish poet Schmueckle, and the music of Mendelssohn and Offenbach; that he had reprimanded a police officer who struck a Jew in the face who was in possession of the Iron Cross; that in the course of a large-scale action in the ghetto, it had been learned that the security service of the German Jews, consisting mainly of former participants in the war, were willing to oppose the action by force of arms, and to avoid the shedding of German blood it was explained to them that a fire had broken out in the city and they (the Jews) were needed for fire-fighting activity, and thus were loaded on trucks and given "special treatment," and when this came to Kube's ears he became excited, saying it was brutal to annihilate front-line soldiers and that the manner of execution was unheard of. This was the report of Strauch.
To a person who held the views that Berger now claims to have held, and who knew nothing of persecutions or mass murders, these reports by a leading Nazi Party man and a Gauleiter would apparently have been a shock and would have brought about investigation and action. But on 18 August 1943 Berger returned the files to Brandt, Hitler's adjutant, with the calm statement that after reporting to Rosenberg he was assured that the latter would, in the next few days, send Gauleiter Meyer to Minsk and give Kube a serious warning. The letter further stated that Rosenberg had approved Himmler's proposal that in order to settle the Latvians en bloc in Lettgallen [Latgalia] the former owners would be evacuated.
It is to be remembered that Berger testified that he did not know anything about plans for destroying Jews, and that he first heard of the "final solution" after his arrest and when he was in Nuernberg and Dachau. Nevertheless, as appears in his letter of 19 April 1943 to Himmler, where he discussed the formation of the proposed "European Confederation," he commented upon the Hungarian situation and stated (NO-628, Pros. Ex. 2383):"In Hungarian Government circles there exists a well-founded fear that the accession to the confederation will be tied up with compulsion to liquidate the Jews."
In view of these documents it seems impossible to believe Berger's testimony that he knew nothing about plans to destroy Jews or that he never heard about the "final solution" until after the war.
He makes no attempt to explain [NO-4315, Prosecution] Exhibit 2375, nor why Kube, who had taken a manly stand for the protection of German Jews at least, and who had attempted to save 5000 German Jews in the Minsk ghetto from murder, and who had indignantly denounced the treacherous slaughter of Jews who had served in the front lines for Germany, should be given a "serious warning," and this quite evidently at Berger's own suggestion. He attempts to explain the statements found in [NO-628, Prosecution] Exhibit 2383, by saying that he was merely reporting what Hungarian Government circles said and not any opinion of his own. This explanation must be rejected as well. Undoubtedly the Hungarians expressed fears that their entry into the European Confederation would be followed by compulsion to liquidate Jews, but it was Berger, the German, who was enthusiastic for this plan of confederation which would give Germany the hegemony of Europe and who further said that these Hungarian fears were "well founded."
It was his opinion and it was based on his knowledge of the plan with respect to the Jews.
Berger reported on 14 July 1943 to Himmler regarding a conference with Koch, Sauckel, Kube, Meyer, and Koerner, in which he said among other things (NO-3370, Pros. Ex. 2376):"After the partisan activity had again been broached, I rejected all accusations most strongly and once and for all stated I would not tolerate any interference with the jurisdiction of the Reich Leader SS by people who don't understand a thing, and who furthermore - and this, I said, was the saddest thing I experienced - are deceived by any atrocity tale from any savage native and would put it before the Reich East Ministry with suitable quotations and added frills. Koch supported me and pointed out that it was quite ridiculous to speak so much of partisans.
* * *
"In the following points I ask for a decision of the Reich Leader SS:
* * *
"3. By order of the Reich Leader SS the Jews in Minsk must either be resettled or turned over to a concentration camp. Now, Kube has in his district a large Panje cart factory with 4000 Jews and says that he would have to close down this factory immediately if the Jews were taken away. I suggested to him to contact the Reich Leader SS via the Higher SS and Police Leader and perhaps to convert this factory into a concentration camp. This would mean, however, that he would lose them but since, as he says, only cart production is concerned, this would not mean a sacrifice for him."
On 20 August 1943 Brandt informed Berger of Himmler's answer (NO-3304, Pros. Ex. 2377): "Reference No. 3. This decision is that by order of the Reich Leader SS the Jews are to be taken out of Minsk and to Lublin or to another place. The present production can be transferred to a concentration camp."
Berger knew what that meant. As early as 28 July 1942 Himmler wrote him (NO-626, Pros. Ex. 2378): "I urgently request that no ordinance regarding the definition of the word 'Jew' be issued. We are only tying our own hands by establishing these foolish definitions. The occupied territories will be purged of Jews. The Fuehrer has charged me with the execution of this very hard order. No one can release me from this responsibility in any case, and I strongly resent all interference. You will receive memorandum from Lammers in a short time."
The Jews of Germany were being deported to the East and now the East was to be "purged" of Jews. When Himmler speaks of the Fuehrer order as being a very hard one, it takes no imagination to know what was intended - they were to be done away with. The world knows, to its horror, that the program was carried out and helpless men, women, and children by the millions were slaughtered in cold blood. While Berger was not in one of the extermination camps, he played an important part in crushing the complaints of even highly placed officials like Kube and Rosenberg so that the ghastly scheme should proceed according to plan. He was present when Himmler delivered his poznan speech on 4 October 1943 at a meeting of the SS Gruppenfuehrers. He there spoke of the Russian prisoners of war (1919-PS, Pros. Ex. 2368):"At that time we did not value the mass of humanity as we value it today, as raw material, as labor. What, after all, thinking in terms of generations, is not to be regretted, but is now deplorable by reason of the loss of labor, is that the prisoners died in tens and hundreds of thousands of exhaustion and hunger.
* * *
"One basic principle must be the absolute rule for the SS men: We must be honest, decent, loyal, and comradely to members of our own blood and to nobody else. What happens to a Russian, to a Czech, does not interest me in the slightest. What the nations can offer in the way of good blood of our type we will take, if necessary by kidnapping their children and raising them here with us. Whether nations live in prosperity or starve to death interests me only in so far as we need them as slaves for our Kultur; otherwise, it is of no interest to me. Whether 10000 Russian females fall down from exhaustion while digging an anti-tank ditch interests me only in so far as the anti-tank ditch for Germany is finished.
* * *
"The other side doesn't make life easy for us. And you must not forget that the fortunate position in which we are placed, by occupying large parts of Europe, carries with it also the disadvantage that in this way we have among ourselves, and thus against us, millions of people and dozens of foreign nationalities. Automatically we have against us all those who are convinced Communists; we have against us every Free Mason, every democrat, every convinced Christian. These are the ideological enemies whom we have against us all over Europe and whom the enemy has totally for himself.
* * *
"I also want to talk to you, quite frankly, on a very grave matter. Among ourselves it should be mentioned quite frankly, and yet we will never speak of it publicly. Just as we did not hesitate on 30 June 1934 to do the duty we were bidden and stand comrades who had lapsed up against the wall and shoot them, so we have never spoken about it and will never speak of it. It was that tact which is a matter of course, and which, I am glad to say, is inherent in us, that made us never discuss it among ourselves, never speak of it. It appalled everyone, and yet everyone was certain that he would do it the next time if such orders are issued, and if it is necessary.
"I mean the evacuation of the Jews, the extermination of the Jewish race. It's one of these things which is easy to talk about. 'The Jewish race is being exterminated,' says one Party member. 'That's quite clear, it's in our program elimination of the Jews - and we're doing it, exterminating them.' And then they come, 80 million worthy Germans, and each one has his decent Jew. Of course the others are vermin, but this one is an A-1 Jew. Not one of all those who talk this way has witnessed it; not one of them has been through it. Most of you must know what it means when 100 corpses are lying side by side, or 500, or 1000. To have stuck it out and at the same time - apart from exception caused by human weakness - to have remained decent fellows, that is what has made us hard. This is the page of glory in our history which has never been written and is never to be written * * *."
Berger was present at this meeting, he heard this speech, but he denies that anything was said about the extermination of the Jews, and in this he is corroborated by von Woyrsch. The captured phonographic text of the speech was played to Berger, and somewhat grudgingly he admitted that it sounded like Himmler's voice.
Von Woyrsch joined the SS in 1930. He states that after 1933 it was considered a combat unit against Bolshevists and Communists. He was in command of motorized police in the Polish campaign, but he denies that he was involved in cleaning out any Poles; denies that he encountered any opposition from the Polish insurgents and from the Polish Army, and that everywhere the public turned to him for help. He also denies that Himmler said anything about extermination of Jews in his Poznan speech. But if his recollection of what Himmler said in this speech is as faulty as his recollection of his own actions and those of his command in the Polish campaign, little credence can be given to his testimony.
In September 1939 Lieutenant Colonel Lahousen rendered a report of an inspection trip on 20 September 1939 to Poland. Regarding von Woyrsch he stated (PS-3047, Pros. Ex. C-202):"1215-1400, Conference at Rzeszow with G-2 (IC-Maj. Dehmel); G-2 (Maj. Schmidt-Richtberg).
"Explain situation as well as military action.
"Hand LWOW for 2 further reports about unrests in that army area arising from partly illegal measures taken by Special Purpose Group (Einsatzgruppen) of Brigadier General [Senior Colonel] (Oberfuehrer) Woyrsch (mass shootings especially of Jews). It was annoying to the troops that young men, instead of fighting at the front, were testing their courage on defenseless people."
This was an official report made contemporaneously with the affairs which it described. There is no reason to doubt its accuracy, and shortly after it was written von Woyrsch ceased to function in command of this unit. In view of this report we are unable to give any weight to his assertion that he and the other Gruppenfuehrer would have objected if Himmler had mentioned the extermination of the Jews.
The transcript itself, which is a captured document, and the phonograph records made of the speech leave little or no doubt that it was rendered substantially in the form claimed by the prosecution.
The spontaneous corroboration of the contents of the Poznan speech was given by the witness Hildebrandt, who was himself convicted before one of these Tribunals and who received a 25-year sentence. On cross-examination he was asked about a letter written by Himmler in August 1944 in which it was proposed to make him the Higher SS and Police Leader for Transylvania, and which concluded with the comment (Tr. p. 7042):"In case Hildebrandt is not there, send the most brutal man available to that region."
He admitted receiving the letter, but said (Tr. p. 7060):"The letter is quite beside the point. It has no practical background and it never had any practical results. Himmler's phraseology is nothing new. I didn't get excited about it and I didn't take it seriously. After this Poznan speech nothing could surprise me any more."
The weight to be given the defendant Berger's assertion that the persecution of Jews was abhorrent to him can be gained from the following [Prosecution] Exhibits: 2381 and 2382 [Documents NO-2550 and NO-2408, respectively].
On 23 July 1942 Berger wrote Gruppenfuehrer Mueller of the RSHA, an organization and person for whom he now expresses great contempt, that recruiting in Hungary was purely a question of producing family allowances; that negotiations with the Hungarian Economic Office led to nothing for the time being; that the Hungarians said that if Hitler wanted anything more he must occupy the country; that a certain Baron Collas proposed to get hold somehow of the property situated in Hungary belonging to the German Jews, which he estimated to be worth many millions pengos. Berger asked to be informed as soon as possible if this means was practicable.
On 19 August 1942 an order was issued based on a report of 13 August 1942, but these documents were not among the captured documents.
On 24 November 1942, the Office of the Chief of Security Police and SD reported to Himmler that due to certain circumstances, it was not possible, at least in the near future, to realize pengos for Berger's purposes from this property, but that permits to emigrate could be sold to Slovakian Jews, as had been done in the case of Dutch Jews, for approximately 100000 Swiss francs per head, and thus Berger could realize the required 30 million pengos for the recruitment of volunteers for the Waffen SS in Hungary.
Berger insists that this came too late, and he obtained the necessary funds in another manner. Unfortunately, there are apparently no other records available to disclose the final history of this happy plan. But even if the suggestion came too late, the correspondence clearly discloses Berger's thoughts and intentions and dissipates his present claim that he was not imbued with any spirit of persecution.
Gabor Vanja, a former Hungarian Minister of the Interior under the Szalasi government (since executed for his own part in these matters) gave an affidavit on 28 August 1945. He deposes that on order of Szalasi he visited Himmler at his headquarters and discussed with him and Berger, who, he assumed, was to be Himmler's deputy, the deportation to Germany of the remaining Hungarian Jews.
We will discuss the sad history of these Jews in our considerations in the case of Veesenmayer.
He further deposes that Himmler ordered that the details of the evacuation be discussed the following day with Berger and Kaltenbrunner in Berlin; that this-conference took place in Berlin on 16 December 1944, and Berger confirmed Himmler's request and ordered Kaltenbrunner to negotiate the details, and they were agreed upon; that Kaltenbrunner forced the immediate and energetic delivery and said that Winkelmann and Eichmann, especially the latter, would supervise the action; that Eichmann wanted to deport even the women, children, and old men from Budapest, and when Vanja protested, stated that Germany would deport the Jews herself.
There is no question but that the deportations were carried out and that the majority of these unfortunate people met their deaths in German extermination camps or in the slave-labor enterprises conducted by the SS.
Although the defendant, by reason of Vanja's execution, could not cross-examine this affiant, there is no reason to believe that his affidavit is not substantially correct. If the case against Berger rested upon the affidavit alone we would not feel justified in finding him guilty, but it is corroborated by evidence given by Berger himself, and which already establishes that he was an active party in the program of the persecution, enslavement, and murder of the Jews.
Slovakian Jews
While the witness Kastner [Kasztner] testified that it was on Berger's recommendation to Himmler that the remaining Jews in Slovakia were deported to extermination camps, Kastner's testimony rests solely upon hearsay. The source of this hearsay, Becher, was not produced as a witness, nor any reason given for the failure to do so.
We therefore hold that this charge has not been proved beyond a reasonable doubt, and with regard to Slovakian Jews Berger must be and is exonerated.
Danish Jews
The prosecution relies upon a letter from Keitel to the German Army Commander in Denmark, stating, among other things, that SS Obergruppenfuehrer Berger, would be in charge of the deportation of the Danish Jews. This, however, is the only evidence on this phase of the matter. Berger insists that Keitel was in error and the operation was in charge of someone else. There is no evidence other than Keitel's.
We hold that proof of guilt beyond a reasonable doubt has not been established and we exonerate Berger of guilt as to this particular charge.
Special Commando - Dirlewanger
Dirlewanger was an old comrade of Berger's from the First World War, and while a savage and skillful fighter, was a man of unsavory character in many respects, which Berger himself admits. Dirlewanger had been convicted of sexual crimes against a minor, but Berger asserts that he was of the opinion that the conviction was the result of a personal quarrel which Dirlewanger had with one of the Nazi officials; that he obtained Dirlewanger's release and had him sent to Spain as a member of the German Condor Legion, where he fought on behalf of Franco; that on his return he succeeded in having Dirlewanger reinstated in the SS as Obersturmbannfuehrer.
It was Berger's idea that for partisan fighting in the East, a battalion of poachers be organized. Himmler approved this suggestion and Berger's recommendation that Dirlewanger train and command this battalion.
It was assigned to the East and immediately started on a career of savagery, plunder, and corruption, which brought it to the unfavorable attention of German officials who had an opportunity to learn of its conduct.
The prosecution called Konrad Morgen, who had been conscripted into the SS, and in October 1940 sent to the SS Main Court as a judge. He was with the SS Police Court VI at Krakow; in May 1942 was relieved of his duties and demoted because of an acquittal he had granted and sent to the front as an ordinary soldier; he was recalled to the police courts in June 1942 and was in charge of investigations at concentration camps. In passing, it may be stated that it was he who was originally responsible for the investigation, trial, and subsequent execution of the notorious Koch who was commandant of the Buchenwald concentration camp.
As judge, his task was to investigate and prepare criminal cases and, when not in charge of investigations, he acted as presiding judge. His jurisdiction covered all members of the Waffen SS and police troops on active duty, but not members of the Wehrmacht.
In the beginning of 1942 he noticed that there had been many convictions of the members of the Dirlewanger unit for plundering and mistreatment of the civilian population. He discovered that all the members of this battalion had been previously convicted of offenses. There were also complaints against Dirlewanger. This unit was not a part of the Waffen SS but was a supplementary police unit. At that time it consisted purely of poachers with previous convictions, but later on inmates of concentration camps and other criminals were transferred to the unit. It finally reached the strength of a division.
His investigation at Lublin among German agencies and the Security Police revealed that this unit was a pest and a terror to the population; that Dirlewanger on repeated occasions plundered the ghettos in Lublin, would arrest Jews on the charge of ritual murder, exact blackmail up to 15000 zlotys, and if the money was not forthcoming have the victim shot. It was charged that he arrested young Jewesses, called in a small circle of friends, stripped the women of their clothes, beat them, and finally gave them an injection of strychnine and watched them die; that the testimony concerning these incidents was obtained by witnesses and the criminal police.
The witness deemed it urgent to arrest Dirlewanger and to investigate these frightful crimes. He reported to Obergruppenfuehrer Krueger at Krakow and asked for an order of arrest. Krueger reported that there was nothing he could do because he was not competent and that the detachment was subordinate exclusively to the orders of Berger. Krueger immediately phoned Berger at Berlin, and after denouncing Dirlewanger, informed Berger that unless "this bunch of criminals disappeared from the Government General within a week I will go myself and lock them up." Berger finally promised to do everything he could, and in approximately 2 weeks the unit was transferred but not, as the witness thought, to the Reich and Dirlewanger punished, but to his surprise, it was sent to Central Russia, to Mogilev. However, the witness sent the files with the report to the commander and the supreme judicial authority concerned, but nothing was done and Dirlewanger was promoted.
While Berger violently attacks the testimony and credibility of the witness, nevertheless his own report to Himmler of 22 June 1942 corroborates it in part (NO-2455, Pros. Ex. 2391):"Now it is peculiar that the surprise attacks by partisans started all of a sudden when Dr. Dirlewanger's Sonderkommando was removed from the district by more or less fair means.
"Perhaps this is also now a warning that a savage country cannot be governed in a 'decent manner' and that the Sonderkommando's policy 'to rather shoot two Poles too many than one too few' was right.
"Considering the weakness of this commando and referring to the following data, I request permission to again comb the penal institutions in close collaboration with SS Gruppenfuehrer Mueller, and after thoroughly examining them, to train all men sentenced for poaching and to use them for reinforcing the old Sonderkommando, and for forming a new second one."
It was the practice of the Dirlewanger brigade to seize villages, shut the inhabitants in barns, set them afire, and shoot down the living torches when they tried to escape, and to clear roads of mines with serried ranks of peasants who would walk down the roads, thus exploding the mines with the result that thousands were thus blown to pieces.
On 23 June 1943 von dem Bach-Zelewski rendered an official report on Operation Cottbus, in which he stated that two to three thousand local people lost their lives in cleaning up mines, 3709 were liquidated, and 599 wounded; 4900 men and 600 women were assigned for labor, with German losses of only 83 killed, and 473 wounded, and non-German auxiliary losses of 39 killed, 152 wounded and 14 missing.
The disproportion in losses between the partisans and the German troops indicates not warfare but massacre.
Further corroboration as to the true nature of Dirlewanger's activities can be seen from the recitation of his merits when, in August 1943 he was awarded the German Cross of Gold; that his battalion had wiped out 15000 guerrillas at a loss to itself of 92 dead, 218 wounded, and 8 missing.
In July 1943 defense witness Braeutigam submitted to Berger a series of reports of murder and outrages committed against the helpless inhabitants of White Ruthenia which, as the Reich Commissioner for that territory stated,and"supplies the answer to the puzzle why even after large-scale operations the number of partisans would not decrease, but actually increase, and why food supplies for the home front and the front line from the embattled areas grew scantier instead of going up. Furthermore, reports show that any propaganda moves after such operations have ended, operations which are terminated by mass shootings of the entire population, are completely useless,""if the treatment of the indigenous population in the occupied eastern territories is continued in the same manner which has been used up to now, not only by the police but also by the OT (Organization Todt), then in the coming winter we may expect not partisans but the revolt of the whole country. * * * The regiment Dirlewanger is particularly prominent in that type of operation. It is composed almost exclusively of previously convicted criminals of Germany."
Berger's reaction is shown by his letter of 13 July 1943, where he says (NO-3028, Pros. Ex. 2392):"I deeply regret that reports of this sort are being relayed unchecked, that much confusion is being stirred up, and above all things, that the confidence in close cooperation is being destroyed. In the case at hand it is my opinion that it would have been the duty of Commissioner General Kube to ascertain the accuracy of the reports to his satisfaction on the spot and then to get in touch with the competent SS and Police Leader, SS Brigadefuehrer von Gottberg, or with the chief in charge of fighting partisans, SS Obergruppenfuehrer von dem Bach [-Zelewski]. We can alter nothing here in any case, for you cannot give orders to a troop without personally having exact insight into the situation. Moreover, perhaps Mr. Kube's attention can still be called to the fact that for the most part these 'criminals' are former Party members who were formerly punished for poaching, or for some stupid action, are now taken out and allowed to prove themselves, and this they do with an incredible percentage of bloody losses."
On 16 July 1943 Berger received an order from Himmler to inform the Reich Minister for the East [eastern occupied territories] that the campaign against the partisans was going quite according to schedule and Volhynia and Podolia would be the next on the list.
On 4 May 1944 Berger wrote Brandt, head of Himmler's personal staff (NO-5884, Pros. Ex. 2396):"In the case of the Dirlewanger regiment and the whipping scene at Minsk, a letter from Reichsleiter Rosenberg was sent to the Reich Leader SS. Since the Reich Leader SS has not yet approached me on this subject I assume that you have kept this letter back for the time being. Like other letters, it did not go through my hands, or I would have changed it."
"As is well known, there are a number of people in the East Ministry who do not want to act as I do and are pleased when conflicts arise. Kindly suggest to the Reich Leader SS to address the following or a similar letter to Reichsleiter Rosenberg:
"'Dear Party Member Rosenberg:
"'On principle I share your view, and I am not at all pleased when an incident such as one in Minsk occurs. However, I am convinced that you can fully understand it if I cannot at present involve SS Standartenfuehrer Dr. Dirlewanger in an investigation, as I need him most badly for the safeguarding of that area'."
The manner in which these operations against partisans were conducted is clearly disclosed by [NO-1128, Prosecution] Exhibit 2370, in which it appears that in the 4-month period of August 1942, September 1942, October 1942, and November 1942, 1337 bandits were counted dead after engagements, 737 prisoners immediately executed, 7828 executed after questioning; and that of accomplices and guerrilla suspects, 14257 were executed, and 363211 Jews were executed.
Berger's personal interest and sense of proprietorship in Dirlewanger and his brigade is shown by his communication of 19 October 1943, wherein he stated (NO-621, Pros. Ex. 2394):"This change of opinion is probably due to the unqualified conduct of my special unit Dr. Dirlewanger who, so far as I can ascertain, has behaved in a most unsatisfactory manner in every respect."
While in the field the unit was not under his tactical direction, it was organized by him, trained by the man whom he selected, the idea was his, he kept it and its commander under his protection, he was repeatedly informed of its savage and uncivilized behavior, which he not only permitted to continue, but attempted to justify; he fought every effort to have it transferred or dispersed, recommended its commander for promotion and covered him with the mantle of his protection. That one of the purposes for which the brigade was organized was to commit crimes against humanity, and that it did so to an extent which horrified and shocked even Nazi commissioners and Rosenberg's Ministry for the Eastern Territories, who can hardly be justly accused of leniency toward the Jews, and people of the eastern territories, is shown beyond a doubt. Berger's responsibility is quite as clear.
He is guilty with respect to the matters charged against him regarding the actions of the Dirlewanger unit, and we so find.
Special Treatment of Foreign Nationals
The term "special treatment" had a well-recognized meaning in Nazi Germany. It meant execution or at best confinement in a concentration camp, the latter being, in most instances, the substitution of a lingering death for a quick one. We will consider what, if any, part Berger and the SSHA played in the treatment of foreign nationals.
Himmler was infected with the idea that German blood must not be contaminated by being mingled with that of what he termed to be inferior peoples, and that those who violated his decree on this subject should and would be subject to "special treatment" unless it was shown that they were of suitable Aryan groups or outstanding individuals whose blood might be valuable to Germany.
Hildebrandt, one of Berger's witnesses and head of the SS Race and Settlement Main Office, having engaged in one of the usual jurisdictional disputes with the head of the Security Police office, reached an agreement, under the date of 20 August 1943, that the task of negatively eliminating the undesirables was that of the Security Police and that of selecting those racially qualified belonged to the Race and Settlement Main Office (RuSHA).
The prosecution alleges that examiners of Berger's SS Main Office undertook to make racial examinations in cases of this kind and that he bears criminal responsibility therefor. That these examiners made such examinations is established by the evidence, but there is serious doubt whether Berger or his main office are responsible for their actions. The examiners were detailed to Berger by the RuSHA to conduct physical examinations of recruits for the Waffen SS. The weight of the evidence is, however, that in making the so-called racial examination, these men were not subject to Berger's control, but to that of the bureau from which they were detailed. We have no doubt that Berger's office knew of the latter activity, but there is a reasonable doubt that when acting in that capacity he had jurisdiction over them. Therefore, we find him not guilty with respect thereto.
Recruiting of Concentration Camp Guards
It is unnecessary for us to elaborate what has long since been established regarding German concentration camps. They were conceived in sin and born in iniquity, and the subsequent consequences were the natural result of both their parentage and environment. Although it is claimed they were first used for the imprisonment of Communists and convicted criminals, it is clear beyond question that from the beginning they were utilized for the imprisonment of those who disagreed with Nazi policy or became the objects of Nazi persecution. In time their inmates included those persecuted for religious beliefs, such as Catholic priests, Protestant pastors, as well as political opponents, Jews, and foreigners who rebelled against their lot or who transgressed against the cruel conditions under which they were compelled to work. Peoples of every country who fell under German domination and control were numbered among the victims of this system. It is one of the main insignia of German terrorism. Although in this case every defendant disclaims knowledge of what actually went on in them, each looked upon them as places of horror from which he sought to protect those in whom he had an interest. After the outbreak of the war and during its progress they were the means of terror used to keep both German and other populations under control. Berger does not deny that he and his agency recruited the guards of these camps at least until 1942. Many of these guards were recruited from the SS. There are strong indications that this was likewise true as late as 1944, but it is immaterial whether his activities ended in 1942 or continued thereafter. His defense is that his recruits were only used as exterior guards and had nothing to do with what went on in the interior of the camps. The evidence shows that among the records in this case there are exhibits showing he furnished guards for Buchenwald, Auschwitz, and Oranienburg, and for camps holding Jews working as slave laborers for Organization Todt. Berger claims that it seems incredible that a man holding the high rank in the SS that he did not know of the atrocities committed in these camps, but that nevertheless he did not know. We do not believe him. His close official and personal relations with Himmler, the high positions which he held under Himmler, the fact that he was present and heard Himmler's Poznan speech, preclude the claim of ignorance which he now makes. Nor are we impressed with the defense that these recruits were used for exterior guard duty only, and therefore were not responsible for the atrocities committed within the camps. On direct examination he testified (Tr. p. 6170):"Q. Now, of course, it may be possible to say 'all right', but still there is a possibility that these guards took part in the maltreatment of inmates which were perpetrated outside the concentration camp.
"A. The innumerable Dachau trials prove that such things did actually occur. But let me continue. It was only the most insignificant part of these atrocities that were committed by members of the SS. That was done by people whom I had assigned to that job at one time or another, but over 90% was perpetrated by the so-called members of the Landesschuetzen Battalions who were assigned after 1942 by Pohl from the army, from the Luftwaffe, and the navy, for guard purposes in the camps."
If we are to assume that his statements were true, nevertheless he is not thereby relieved of responsibility. These camps were an integral part of the Nazi program of oppression, slave labor, terrorism, and extermination. They were the means whereby the Nazi Party maintained its power over the German people and over the peoples of nations occupied or controlled by it. To maintain and administer them obviously required both interior and exterior guards. The defendant furnished the exterior guards and if, as we find to be the fact, these camps were of the character just described and the defendant knew of it, which we also find to be the fact, he participated in the crime.
The fact, if it be a fact, that neither he nor the guards participated in shootings, beatings, starvations, and other maltreatment can only be considered, if at all, in mitigation of the offense. We find the defendant Berger guilty of the crimes against humanity as a conscious participant in the concentration camp program.
Conscription of Nationals of Other Countries
Berger, in 1938, set up the recruiting office of the Waffen SS and on 1 July 1939 he became the official chief of that office, a position which he retained until 31 December 1939. Upon the reorganization of the SS Main Office on 1 January 1940 he became its chief and was thereafter responsible for the recruitment of the Waffen SS until the close of the war.
In the early part of the war there were undoubtedly a large number of foreign volunteers to the Waffen SS. Such recruitment is, of course, perfectly legal. The prosecution alleged, however, that during the war large numbers of foreign nationals were conscripted into the Waffen SS contrary to the principles of international law, and that these crimes constitute a crime against humanity. If, as has been often held, it is a crime to conscript foreign nationals to slave labor, it is a crime of equal rank to conscript them into the army to fight, bleed, and die.
As the war progressed Germany suffered severe losses of manpower. It adopted conscription as to its own nationals and in many instances of foreign nationals living within its borders. We hold that it is not illegal to recruit prisoners of war who volunteer to fight against their own country, but pressure or coercion to compel such persons to enter into the armed services obviously violates international law.
On 24 January 1945 Berger, as Commander of the Reserve Army [Chief of Staff of the Volkssturm] and Chief of Prisoner-of-War Affairs, issued an order which, after reciting that many applications had been received from Russian prisoners of war to join General Wlassow's army of liberation, added that as a result negative elements among the Russian prisoners had become more active; that in order to remove these unfavorable influences and to insure the success of further recruiting, it was ordered that prisoners of war who were known to be ringleaders for subversive propaganda were to be immediately removed from the labor unit and transferred to the SD, and those subversive elements who were not active ringleaders were to be listed for removal at a moment's notice; that the isolation of these subversive elements was not possible at the time because of the work to be done.
It is unnecessary to again explain what was meant by "transfer to the SD." In most instances it meant death. Such an order clearly violates the rules of war, and that its issuance had a marked stimulation of recruitment of Russian prisoners of war requires no proof. The safe way to avoid being classified as an active or positive subversive element would be to volunteer. A prisoner of war who endeavored to persuade his comrades not to fight against his brothers thereby violated no rule of war and such conduct would, under no possibility, subject him to legal punishment, or would justify his being turned over to the SD.
That these measures were effective and that in many cases the so-called Russian "volunteers" were in fact conscripted, is clear. Fegelein reported to Himmler, apparently in February 1945, that the volunteers "had stated that they would on no account fight against their compatriots." (NO-1720, Pros. Ex. C-209.) His report further stated:"2. A large number had already deserted to the other side.
"3. Several members of the German leader personnel had already been killed by the volunteers, and finally that the leader personnel are afraid of being killed by the volunteers in contact with the enemy and are anxious as to how they can get away."
While we do not overlook the possibility that Russian prisoners of war may have volunteered with the express intention of deserting at the earliest practicable moment, nevertheless when Fegelein's report is considered in connection with Berger's order above referred to, the conclusion is inescapable that more than ordinary persuasion was used by Berger's office to induce Russian prisoners of war to enter the Wlassow Army of Liberation.
On 8 September 1944 Greiser wrote Himmler relative to the conscription of all able-bodied Germans from Russia, including those not yet naturalized, and asked that certain exemptions be granted covering certain organizations of his own. He stated that Berger, some months previously, had agreed to this reservation. The persons thus to be considered were not German nationals but were people of German blood who were citizens of Russia. The action was wholly without sanction of law and in patent violation of international law.
On 16 June 1943 Berger wrote Brandt, Himmler's adjutant, with regard to recruitment of the Prinz Eugen Division in Croatia (N0-5901, Pros. Ex. 3272):"The Reich Leader SS has proclaimed general compulsory military service for the ethnic group in the Serbian territory, that is, Dr. Janko. The Serbian territory is under German sovereignty, since it is occupied by Germany. From the point of public law there can be no objection, leaving apart the question that really nobody cares what we do down there with our ethnic Germans.
"To proclaim compulsory service for Croatia and Serbia is impossible under public law. And it is not at all necessary either, for when an ethnic group is under moderately good leadership, everybody volunteers, and those who do not volunteer get their houses broken to pieces. ( Such cases have occurred in the Rumanian Banat during the last few days.)"
The SS Legal Main Office, on 12 January 1943, wrote to Berger's Main Office that the Prinz Eugen Division was no longer an organization of volunteers, but that on the contrary, the ethnic Germans from the Serbian Banat were drafted, to a large extent, under threat of punishment by the local German leadership, and later by the replacement agencies (Berger's).
Kasche of the Foreign Office, in his report of 25 June 1943, likewise complained of the ruthless recruiting methods used in Croatia.
The defense that these measures were taken under agreement between Germany and the sovereign state of Croatia is without merit. Croatia was a puppet created by Germany, existed under and only so long as it was backed up by German arms. It was neither sovereign nor a state. The so-called internal agreements were suggested and imposed by Germany and accepted by Croatia because it was without power to do anything else, and its government existed only when backed up by German bayonets. Nor is there any substance to the contention that those drafted and conscripted were ethnic Germans and therefore subject to German law of conscription. The German Government had no more jurisdiction over ethnic Germans in Europe than it had over ethnic Germans in the United States. They are not German nationals, but citizens of their respective nations.
Under the Himmler decree (R-112, Pros. Ex. 1355),An act of naturalization under such circumstances is not voluntary."* * * persons of Germanic origin who do not apply for * * * repatriation are to be turned over to the German State Police, and if they do not change their minds within 8 days are taken into protective custody for transfer into concentration camps."
The program carried out in Serbia, Croatia, and the Protectorate was likewise carried out in Latvia, Lithuania, Poland, Russia, Luxembourg, Alsace, and Lorraine. Beyond question of doubt, the defendant Berger is guilty of a crime against humanity when he and his agencies took part in a program which subjected citizens of those countries, by forced Germanization or other ways, to be conscripted into the German armed forces.
The defense has attempted to picture Berger as a man of humane and kindly instincts, averse to persecutions of any kind. But this picture fades in the face of a letter found in the Party files in Stuttgart, written on 4 May 1933. This was after the seizure of power, and he said (NO-5915, Pros. Ex. 3489):"The special commissioners [SonderKommissare] are to be instructed that they now have to discontinue arrests and that applications for release are to be considered favorably. A balance has to remain on the Heuberg. Everything unnecessary only eats up our money, and we will afterward have nothing left for the training. Let them out, and if they resist shoot them down. A much simpler solution and one which is more favorable to us."
It would be hard to conceive of a more callous and brutal policy aimed at that time, apparently, to save SA funds so that they could be used for training purposes. Berger explains that he does not remember or recognize the letter, but it came from the Wuerttemberg Party files of Stuttgart, and it bears the typed signature "Chief of Branch Group Wuerttemburg," signed, "G. BERGER, Oberfuehrer."
We have no doubt as to its genuineness, and it is significant to note that he does not deny that he wrote it.
We find the defendant Berger guilty under count five of the indictment.
During the concluding months of the war, the record shows that the defendant Berger was the means of saving the lives of American, British, and Allied officers and men whose safety was gravely imperiled by orders of Hitler that they be liquidated or held as hostages. Berger disobeyed orders and intervened on their behalf, and in so doing placed himself in a position of hazard. These are matters of extenuation which the Tribunal will take into consideration in fixing his sentence.
Count Six - War Crimes and Crimes Against Humanity, Plunder and Spoliation: Berger
In addition to the general charges made against defendant Berger under this count it is also specifically alleged therein that the defendant Berger, as liaison officer between Rosenberg, Reich Minister for the Occupied Eastern Territories, and Himmler, was active in the execution of the various parts of the plans for spoliation in the East, and that Berger, as chief of the political directing staff of the Reich Ministry for the Occupied Eastern Territories, assumed charge in 1943 of the central office for the collection of cultural objects, and that thus he was an active participant in the transfer to Germany of a vast number of art treasures and other articles seized in the East.
Evidence adduced by the prosecution was directed to prove that, in his capacity as liaison officer between Himmler and Rosenberg, defendant Berger coordinated the work and authority of Himmler and Rosenberg in the carrying out of the spoliation program in the eastern territories, with respect to food and agricultural products. A number of items of documentary evidence were introduced by the prosecution, showing that Himmler transmitted directives relating to the collection of raw materials in the eastern territories to Berger, and requested that such matters be brought to the attention of Rosenberg, head of the Reich Ministry for the Occupied Eastern Territories. Nowhere does it appear, however, that defendant transmitted such documents or orders to Rosenberg. Nowhere do we find an acknowledgment from Berger indicating his cooperation with Himmler in this connection. Witnesses called by the prosecution also failed to show a real participation by Berger in said program of spoliation. One prosecution witness testified that he had not seen any orders or directives issued by Berger in connection with the execution of the spoliation program relating to food and agricultural products in the eastern occupied territories, but stated that he had been told by another that Berger issued such directives and orders.
In answer to such testimony and contentions of the prosecution, we have the testimony of two witnesses who were, by reason of their position, conversant with the food procurement program in the eastern territories during the times in question. One was Hans Joachim Riecke who, from August 1939 until May 1942, was employed in the Reich Ministry for Food and Agriculture, first as Ministerial Director, and later as State Secretary. It appears that he also was head of the Executive Group A, food and agriculture, in the Economic Staff East, and in the Ministry for the eastern territories. His testimony was to the effect that Himmler had been asked to make guard personnel available, in connection with the procurement of certain foodstuffs, and that in issuing an order indicating that he had charge of the collection of food, which he sought to transmit through Berger, as liaison officer, to Rosenberg, he was overreaching his authority, and that such order had no effect whatsoever and did not really affect spheres of jurisdiction, and that the crop collection thereafter continued as before in the hands of the agriculture agencies, that is, in the control office of Executive Group A for food and agriculture of the Economy Staff East and of the Ministry for the eastern territories, and regionally with the economy inspectorates and Reich commissars, respectively. This witness concluded his testimony that, because of such spheres of jurisdiction which had been clearly defined for this field, Berger could not have had anything to do with the collection of the harvest, and that he, the witness, had never heard of any such thing during his term of office.
The other defense witness on this phase of the charges against Berger was one Helmuth Koerner, who, apparently, was director of the executive group for agriculture of the Economic Inspectorate South from June 1941, and from October 1941 to the end of the war he also was director of the Main Food and Agriculture Department under the Reich Commissioner for the Ukraine. This witness states that he was advised that one SS Police Leader Preussner had received an order from Himmler concerning the securing of the harvest, but that this did not change the spheres of jurisdiction as theretofore existing, and that the seizure of harvest remained the task of the Economic Inspectorate South and the related offices of the Reich Commissioner for the Ukraine.
This witness also testified that he did not come across the name of Berger during his entire period of activity in the area of his jurisdiction in the East.
The Tribunal is of the opinion that it has not been proved beyond a reasonable doubt that defendant Berger did participate in the spoliation of food and agricultural products in the eastern territories, as charged in this count.
With respect to the accusation that Berger participated in the looting of art treasures in the Occupied Eastern Territories, considerable evidence was adduced by the prosecution. Reference is made to the findings of the IMT, which showed that a program of the Third Reich was being carried out, which detailed an extensive seizure of art treasures and scientific apparatus in the Occupied Eastern Territories. That such program was being carried out, there is no doubt. It appears from the evidence that on 7 April 1942, Dr. Georg Liebbrandt, while he held the position of Chief of the Main Department for Politics [of the Reich Ministry for the Occupied Eastern Territories], issued an order directed to the Reich Commissioner for Ostland at Riga, and to the Reich Commissioner for the Ukraine at Rowne, placing the task and responsibility for the seizure of art treasures in the Eastern Occupied Territories exclusively in the hands of Rosenberg's Einsatzstab. Such order stated in part (151-PS, Pros. Ex. 2410),Further on the order recites,"I have assigned Reichsleiter Rosenberg's Einsatzstab for the occupied territories with the seizure and competent handling of cultural goods, research material, and scientific apparatus from libraries, archives, scientific institutions, museums, etc., which are found in public, religious, or private buildings. The Einsatzstab begins its work, as recently directed by the Fuehrer decree of 1 March 1942, immediately after occupation of the territories by the combat troops, in agreement with the Chief of Supply and Administration of the Army [Generalquartiermeister des Heeres] and after civil administration has been established, continues it in agreement with the competent Reich commissioners until final completion. I request all authorities of my administration to support, as far as possible, the members of the Einsatzstab in carrying out all measures and in giving all necessary information, especially in regard to objects which may have been already seized from the Occupied Eastern Territories and removed from their previous location, and information as to where this material is located at the present time.""All authorities of my administration are hereby instructed that objects of the aforementioned type will be seized only by Reichsleiter Rosenberg's Einsatzstab, and to stop from arbitrary handling as a matter of principle."
It appeals that Leibbrandt ceased to be such Chief of the Main Department for Politics in August 1943, and defendant Berger became charged with the direction of the political directing staff in the territories under consideration. This, it is argued by the prosecution, involves the defendant Berger in the spoliation program as to art treasures in the Occupied Eastern Territories, so as to make him criminally guilty under this count. There was no testimony, either oral or documentary, indicating that after Berger in August 1943, succeeded to the office and authority formerly held by Leibbrandt, Berger did anything to implement or further the program of spoliation with respect to art treasures, as originally launched in the Eastern Occupied Territories by Leibbrandt in behalf of the Reich. On the other hand, it appears that by the time Berger assumed the former duties and authority of Leibbrandt, the spoliation program with respect to art treasures in the Occupied Eastern Territories had been carried forward to a very considerable extent. The IMT judgment makes the following reference to the progress of this program, as of October 1943 [Trial of the Major War Criminals, op. cit., volume I, page 242.]:"The scale of this plundering can also be seen from the letter from Rosenberg's department to von Milde-Schreden, in which it is stated that during the month of October 1943, alone, about 40 box cars loaded with objects of cultural value were transported to the Reich."
Attention is called by the prosecution to the fact that his activity was subsequent to the time when Berger became chief of the political directing staff. This, however, does not, in view of the orders already referred to, indicate that defendant Berger did anything to advance or further the spoliation program which had already been inaugurated. There is no evidence to indicate that he did so. The only indication of any participation to any degree whatsoever on the part of Berger is that in September 1944, one Milde-Schreden, already referred to in the above excerpt from the IMT judgment, reported to Berger (NG-4353, Pros. Ex. 2411) that 85 wooden crates of paintings and other art objects had been taken from Kiev and Kharkov by the Reich Commissioner for the Ukraine, and were now safely stored in East Prussia. It appears that he included a long list of the items comprising such seized art objects. He requests that the defendant Berger place his signature on a draft of the inventory thus submitted, since"In accordance with the decision of the Reich Chancellery dated 18 November 1940, it appears necessary that an inventory of the items be submitted to the Fuehrer."
It appears from the record of the testimony that the list was passed through Berger's hands on to the proper agency. There is no other evidence of Berger's participation in such spoliation program inaugurated pursuant to Reich authority, prior to his taking office as chief of the political directing staff, and which program, it appears from the evidence, had been vigorously executed and carried forward prior to Berger's assuming the office of Leibbrandt, and which, therefore, probably did not require any direction from Berger's office
The Tribunal is of the opinion that, under the evidence adduced, it must and hereby does find defendant Berger not guilty under this count.
Count Seven - War Crimes and Crimes Against Humanity; Slave Labor: Berger
In addition to the general allegations made against all the defendants named in this count, the defendant Berger is specifically accused of having, together with Lammers and Stuckart, participated in the formulating, drafting, and execution of laws and decrees for regulating the wages and conditions of employment of slave labor. He is also specifically accused of having participated in the planning and execution of the enslavement and subsequent deportation of the civilian population of the Occupied Eastern Territories of the Reich. It is asserted that Berger recruited military and police battalions for the purpose of effecting such conscriptions and deportations. It is specifically asserted that Berger, in cooperation with defendants Lammers and Stuckart, participated in the execution of plans for the forcible seizure and impressment of young persons, without regard to sex or work status, from the Occupied Eastern Territories into the service of pseudo-military organizations variously known as SS Air Force Helpers, SS Trainees, SS Helpers, and Air Force Helpers. It is asserted that the so-called Heu-Aktion was a part of the same program whereby thousands of boys and girls 10-15 years of age were conscripted and deported to the Reich to work in the German armament industry. It is further alleged that the mobilization of labor of prisoners of war was organized by Berger in cooperation with Pohl, Chief of the SS Main Economic and Administrative Department. Not all of the allegations of count seven as made against Berger are sustained by the evidence
It was, however, clearly established that the defendant Berger was closely identified with the forcible conscription program in the Occupied Eastern Territories. A part of such program was the infamous Heu-Aktion, a program for conscription of children from the territories in the East as they were evacuated by the Reich forces, following the retaking of such territories by the Allies. An order for the institution of the Heu-Aktion program was signed by the notorious Rosenberg, Plenipotentiary for the Occupied Eastern Territories, who was later tried and convicted by the IMT. It appears indisputably that the defendant Berger was instrumental in the formulation of the youth conscription program. The Heu-Aktion had its beginning in a meeting held in June 1944 where Berger was represented by his personal adviser, one Brandenburg, and one Nickel, as representative of the Ministry for the Occupied Eastern Territories. At such meeting, attended by other prominent officials, including the Chief of the Hitler Youth War Service Commandos of the Army Group Center, the fate of thousands of alien children was decided for the benefit of the German war effort. This program contemplated the separation of these children from their parents. The use of compulsion was contemplated. It appears that at the conclusion of such conference Berger's personal adviser agreed to secure a decision from the Ministry within a few days. Further and convincing evidence was introduced to show that Berger's influence in the prosecution of this indefensible program of conscription of children was repeatedly and aggressively exerted. That such program was effected is clearly established by a report submitted by said Nickel on 1 August 1944 which report states in part (NO-3038, Pros. Ex. 3390),This same report reveals some of the methods employed in carrying out of this children conscription program."It was therefore intended to take 40000 children in the ages from 10 to 14 years to the Reich for placement in training camps for the German armament industry. The preparations for this were concluded toward the beginning of June 1944 and the first transports got on the way. 2500 could still be brought to the Reich, they are now already employed with the Junkers Works.""Toward the beginning of the year 1944, children's villages were established in the army's rear echelons. The able-bodied inhabitants of a number of villages immediately behind the front line, who were particularly endangered by the partisan situation, were concentrated in labor battalions which were permanent units of the front line troops. The remainder of the adult population, made up of those who were incapable of working, were deported to the enemy; the children up to the age of 14 years were, under German leadership, concentrated in a children's village. In the village itself an extremely small detachment of German leadership personnel was in charge of security, order, and education and, beyond, of such production as could be carried out also by children (horticulture, raising of domestic animals, home work, etc.). Here are the most important results.
"(a) The wide area around the children's village was free of partisans.
"(b) The German troops had absolute control over the adult personnel in the labor battalions.
"(c) At the time when changes occurred in the front line the evacuation was most simple, because only the children's village had to be moved; the population followed then willingly."
A subsequent report is in evidence giving the results obtained in such program of youth conscription. This report shows assignments to which boys and girls were committed in armament industries and also to various pseudo-military organizations referred to in count seven. It is indeed significant that on 16 June 1944 one Straube, personal adviser to Berger, directed a request to Nickel on behalf of Berger which states in part as follows (NO-338, Pros. Ex. C-212):This document refutes the claim of the defendant that he was not involved in the recruitment of juveniles through Heu-Aktion."Obergruppenfuehrer Berger wishes 100 selected young people to be withdrawn in connection with the Heu-Aktion. These are to be put at the disposal of Walther Arms Factory in Zella-Mehlis. I beg you to take this into consideration from the beginning and let me know on what date we may count on having these young people assigned. The affair is urgent as the Obergruppenfuehrer has promised to have it done."
The recruitment of juveniles, however, was not confined to children between the ages of 10 and 15 for industrial purposes, but simultaneously a program for recruiting them for several pseudo-military organizations was going on. It appears that on 31 May 1944, a Mr. Straube, hereinbefore referred to as Berger's adviser, in a file note reveals the results of a conference between Berger and other Reich officials with respect to the recruiting of Latvian Air Force Helpers, ostensibly on a voluntary basis but with the proviso that if theIt appears that for such pseudo-military organizations, Berger did not hesitate to take recruits of an extremely tender age, for in a communication dated 26 June 1944 to the Reich Ministry to the Occupied Eastern Territories he states (NO-1877, Pros. Ex. 3387):"7000 fixed cannot be met by voluntary recruiting, the balance is to be supplied by local administration.""1. The question of Air Force Helpers (Luftwaffenhelfer) gets to be of much greater importance than originally suspected. To be pushed under all circumstances. Especially the affair in Lithuania is to start and finish with all means.
"2. The transfer (Uberfuehrung) of the racially well-fitted boys beginning at the age of 12, and eventually, in the case of very suitable boys, for age of 10, from the areas White Ruthenia, North Ukraine, to accelerate with all means. Great tasks called upon by the Fuehrer. Preparatory conferences to be held now."
The evidence indicates that this youth conscription program was in the main compulsory, although the defendant denies this. It is to be noted that it was understood that if the voluntary recruitment failed, the balance is to be supplied by the local administration. That Berger was the motivating and responsible force back of the conscription of alien children and youth for the benefit of the Reich seems to be indisputably clear from the contents of a document which defendant admits he signed. This is a memorandum dated 6 April 1944 for distribution among all members of his political directing staff. Such document states (NO-1713, Pros. Ex. 3362):"The matter of the Air Force Helpers has taken such an unfavorable development that the prestige of the Reich East Ministry came near to being severely damaged; that is, we were almost placed in a position of sharpest opposition to the policies of the Fuehrer. I therefore order:
"(1) Agreements of any kind which are not endorsed by me, are invalid.
"(2) I forbid any direct reports on this matter without my approval to the Reich Minister.
"(3) The total responsibility for these recruiting measures (posters, handbills, etc.) I transfer to Hauptbannfuehrer Nickel. He will in the true sense of the word vouch with his life for a proper settlement of this problem.
"(4) On the future application of the educational and provisional possibilities laid out by the Reich East Ministry for this operation, further orders will be given after the officials concerned will have been consulted."
The explanation made by defendant that the execution of this document was in fact beyond his authority and was done out of vexation on his part is an unimpressive and unconvincing explanation, especially in view of the many other items of evidence to the contrary.
That the recruiting drive under consideration was in fact carried out on a large scale is indisputably established by a report of Nickel under date of 19 October 1944 to Straube, the subordinate of Berger. Such report shows that after May 1944 thousands of youth had been recruited for the air force, and for the armament industries, and other war work.
The Tribunal is of the opinion that as an active participant in the planning and carrying out of the youth and children conscription program referred to, Berger became a criminal participant in the Reich slave-labor program. The evidence with respect to slave labor indicates the further involvement of Berger in the slave-labor program. It appears that in June 1943 Berger received a so-called top secret order from Himmler with respect to a program of enslavement of the male population of the northern Ukraine and central Russia. The order was to be passed on to Rosenberg, the Plenipotentiary for the Occupied Eastern Territories. The following passages of such order are significant (NO-2034, Pros. Ex. 3354):"1. The Fuehrer has decided that the partisan-infested areas of the northern Ukraine and central Russia are to be evacuated of their entire population.
"2. The entire able-bodied male population will be assigned to the Reich Commissioner for Allocation of Labor [Reichskommissar fuer den Arbeitseinsatz], in accordance with arrangements yet to be decided upon, under conditions applicable to prisoners of war, however.
"3. The female population will be assigned to the Reich Commissioner for Allocation of Labor [Reichskommissar fuer den Arbeitseinsatz] for employment in the Reich.
"4. A part of the female population and all orphaned children will enter our reception camps [Auffangslager].
"5. In accordance with an agreement yet to be reached with the Reich Minister for Food [Reichsernaehrungsminister] and the Minister for Occupied Eastern Territories [Minister fuer die besetzten Ostgebiete], the Higher SS and Police Leader [Hoehere SS- und Polizeifuehrer] are to arrange, as far as is practicable, for the farming of the areas evacuated of their population; to have them planted, in part, with Kok-Saghyz [A plant of the dandelion family used for the production of rubber.], and to utilize them for agricultural purposes, as far as possible. The children's camps are to be located at the border of these areas, so that the children will be available as manpower for the cultivation of Kok-Saghyz and for agriculture."
The testimony of Berger was to the effect that he was not in favor of such an announced program and that, in fact, the mass evacuation provided for in Himmler's order was not carried out. In view of convincing evidence to the contrary, however, the Tribunal is obliged to reject the explanation and defense thus given by Berger.
It appears that on 14 July 1943 we find defendant Berger addressing a letter to Himmler [memorandum for the record] concerning the labor resources untapped in Lithuania. In such letter Berger asks Himmler "for a decision" along with other consideration of the following (NO-3370, Pros. Ex. 2376):It is to be observed in this connection that this request on the part of Berger was, under date of 20 August 1943 accepted by Dr. Rudolf Brandt, Himmler's adjutant, as follows (NO-3304, Pros. Ex. 2377): ""Lithuania has not been worked upon at all as far as labor is concerned. The police forces in that district are too weak, however, and say that in case labor is conscripted by force there would be large partisan gangs. I would suggest that, after the termination of the actions in central Russia and northern Ukraine, a strong action for labor conscription in Lithuania is initiated."The Reich Leader SS has noted that sufficient forces for the labor conscription in Lithuania will be allocated at the proper time when the fighting of partisans and other conditions permit this."
With respect to the claim that the evacuation program as announced by Himmler was not carried out, it should be noted that defendant's own witness, Braeutigam, testified (Tr. p. 6575),"* * * as it well known, in the autumn of 1943 the Ukrainians had already been evacuated to a large extent * * *."
It is also significant in this connection that in the months following the institution of such evacuation program the evidence discloses various reports were made to Berger and others concerning the forcible deportation and mistreatment of Ukrainians who were being shipped to
the Reich for slave labor.
The prosecution has contended that the defendant Berger is also responsible for the employment of prisoners of war in work related to war operations, for instance, such as armament production. It is pointed out that this defendant was Chief of Prisoner-of-War Affairs from 1944 to 1945. There is no question but that there were instances of the employment of war prisoners by Germany in war industries and war operations during the war years. The evidence is not clear that in any of these instances such employment was carried out or was engaged in through the initiative and cooperation of the defendant Berger. The Tribunal does not feel that such particular charge has been proved beyond reasonable doubt. However, from the evidence adduced with respect to other charges of this count, and as hereinbefore discussed, the Tribunal finds that the defendant Berger is guilty under count seven.
Count Eight: Membership in Criminal Organizations: Berger
The defendant Berger was a member of the SS. He was Chief of the SS Main Office. He attained the rank of SS Obergruppenfuehrer; he was one of the principal subordinates of Himmler in the SS. He was himself engaged in active participation in some of the crimes committed by that organization. He was intimately acquainted with its criminal activities.
We find him guilty under count eight.
Count Three - War Crimes, Murder, and Ill-Treatment of Belligerents and Prisoners of War: Berger
The indictment charges that the defendant Berger received a copy of the Bormann circular of 30 May 1944 regarding Allied fliers heretofore mentioned. It is not alleged and there is no evidence that he took any action with respect to it. Knowledge that a crime is proposed is not sufficient. A defendant may only be convicted because of acts he has committed or his failure to act when it was his duty to have done so. The evidence does not disclose that Berger had any duty to perform with respect to such matters.
The defendant Berger is therefore acquitted as to the charge of being a participant in the murder of Allied fliers who had bailed out over Germany.
The indictment charges that between September 1944 and May 1945, hundreds of thousands of American and Allied prisoners of war were compelled to undertake forced marches in severe weather without adequate rest, shelter, food, clothing, and medical supplies; that such forced marches, conducted under the authority of the defendant Berger, chief of Prisoner-of-War Affairs, resulted in great privation and deaths to many thousands of prisoners.
The preamble of the Geneva Prisoner-of-War Convention of 27 July 1929 recites [Geneva (Prisoner of War) Convention of 27 July 1929; United States Army TM 27-251, Treaties Governing Land Warfare (US Government Printing Office, Washington D.C.), page 65.]:"* * * recognizing that in extreme case of war it will be the duty of every power to diminish as far as possible the inevitable rigors thereof and to mitigate the state of prisoners of war * * * have decided to conclude a Convention to that end * * *."
Article 2 of the Convention provides:"They [prisoners of war] must at all times be humanely treated and protected, particularly against acts of violence, insults, and public curiosity. Measures of reprisal against them are prohibited."
* * *
"Prisoners of war shall be evacuated within the shortest possible period after their capture, to depots located in a region far enough from the zone of combat for them to be out of danger. Only prisoners who, because of wounds or sickness, would run greater risks by being evacuated than by remaining where they are, may be temporarily kept in a dangerous zone.
* * *
"Evacuation of prisoners on foot may normally be effected only by stages of 20 kilometers daily unless the necessity of reaching water and food depots require longer stages."
The right of a belligerent to evacuate prisoners to avoid their release by enemy troops is unquestioned; the duty to remove them from combat and dangerous zones is clear. The first involves the right of the capturing power, and the second its obligation and responsibility toward the prisoners in order to mitigate their fate and to provide for their safety. However, the right to evacuate can only be exercised when it can be accomplished without subjecting evacuees to dangers and hardships substantially greater than would result if they were permitted to remain at the place of imprisonment, even if thus they might be rescued by the approaching enemy.
A belligerent may no more subject evacuees to mistreatment or hunger, or otherwise endanger their lives by means of forced marches, than he may rightfully do so under other circumstances. When such a situation is in prospect the right to evacuate ceases.
The duty to evacuate does not exist when the dangers from evacuation are greater than those to be apprehended if the evacuation does not take place. The Geneva Convention requires evacuation in order to insure the safety of the prisoners. Where is objective is not attainable the duty to evacuate ceases.
The only affidavit submitted with respect to the northern evacuations by any prisoner involved in the forced marches is an affidavit by Thurston Hunter, an English prisoner of war, who deposes that he, with 800 British prisoners of war, was marched from Stalag XX-A, evidently near Thorn [Torun], Poland, to Lehrte, near Hannover, in northwestern Germany. The privations suffered and the mistreatment inflicted, as described in this affidavit, were extreme. However, the affidavit was received on the condition that the affiant be produced for cross-examination. This was not done, and no reason or excuse has been offered for the prosecution's failure so to do. There is no corroboration of the affiant from any other source, and under these circumstances the Tribunal does not feel justified in finding guilt upon this unsupported affidavit.
The evidence with regard to the marches from Silesia through Bohemia and Moravia into Bavaria, involving some 100000 men, rests upon the testimony of Meurer, von Steuben, and Detmering. From their testimony it appears these prisoners had been previously held in Silesia and were marched from the vicinity of Neisse and from the neighborhood of Ratibor. With minor exceptions the whole mass of men was marched across the mountains of the Protectorate in January and February, and thence into Bavaria, a distance of several hundred kilometers. The evacuations were occasioned by the rapid advance of the Russian armies. The original plan was to evacuate them in an orderly manner by rail toward the northwest. This became impractical inasmuch as one of the main rail lines was under enemy fire and the others were required for the passage of troops and supplies to the front. Protests against the march were made by General Detmering, prisoner-of-war commander for Military District VIII, because of the lack of means of transportation and accommodations, food, and the insufficiency of clothing in view of the below zero temperature.
Frank, the Governor of the Protectorate, together with the Plenipotentiary of the Wehrmacht in the Protectorate, and von Steuben joined in this protest because of the fear of disturbances in the Czech population and the dangers of attempts to liberate the prisoners and because there was not sufficient food supplies in the country through which they were to march. These protests were lodged with Colonel Meurer, Berger's chief of staff, and were communicated to the latter. Berger claims that he protested to Hitler but that he was without power or authority to countermand or avoid the order, and had no facilities, even if he had the power, to attempt any negotiations with the commanders of the Russian Army. He also insists that the large proportion of the Russian prisoners did not desire to be turned back to the Russian armies because of fear that they would be punished as traitors. He cites two instances where it is claimed that injured and sick Russians left in a camp under charge of German medical orderlies were, with the medical orderlies, murdered by the advancing Russians, and that news of this increased the fears of the remainder of the prisoners.
We find it to be true that the prisoners on this march suffered severe privations, both from the cold and from the lack of food and other necessary accommodations. According to the testimony of the witness von Steuben, the death of 200 prisoners was reported at one time, and Meurer admits that he knew and reported to Berger that some of the Russian prisoners had died of exhaustion. There is, however, no satisfactory evidence as to the actual losses thus sustained. No prisoner who was compelled to make the march was called as a witness. The state of the record is, therefore, unsatisfactory. Substantial casualties on protracted marches are not unusual even among well fed troops, and would undoubtedly be larger where the march is undertaken by prisoners of war who have long been in confinement, even though properly cared for during that period.
Berger's actions are not to be judged by after-acquired knowledge, but by what he then knew or had reason to believe, and the conditions with which he was then faced. That a state of emergency existed is quite clear. German rail communications at that period of the war, and particularly in the East, were greatly disrupted. That the Russian advance was extraordinarily rapid, and that the German front in the East was rapidly dissolving is likewise well known. We find that he had a choice of two alternatives: either to leave the prisoners to the Russian Army, or to evacuate them by the march in question. If he left them, for a time at least, they were bound to be in a zone of active military operations and subjected to extreme danger.
We do not hold that they would have suffered if they fell in the hands of the Russian armed forces, although the prosecution has offered no evidence to the contrary. It is sufficient if Berger honestly believed, even though it may have been unfounded, that the prisoners were in as great, if not greater danger, if left in their camps as those to be encountered by marching. There is no evidence to contradict his testimony in this respect. The uncontradicted evidence is that, to the best of his ability, food, clothing, medical care were furnished the prisoners, inadequate though this was. We may have justified suspicion as to parts of his story, but suspicion does not take the place of evidence, and certainly does not constitute proof of guilt beyond reasonable doubt.
For the foregoing reasons we find that the charge against Berger in this respect is not proved, and he must, therefore be acquitted.
Count Three - War Crimes, Murder, and Ill-Treatment of Belligerents and Prisoners of War: Berger: The Mesny Murder
On 19 January 1945 the French general, Mesny, in company with several other French general officers, was transferred from the prisoner-of-war camp Koenigstein to another camp. While en route he was foully murdered, and information given to the French authorities that he had been killed while attempting to escape. The murder was according to a plan long discussed and matured. It was an act of revenge, practiced on a helpless prisoner of war for the alleged murder of a German general, Brodowski, by the French Maquis. It was not a true reprisal, inasmuch as every effort was made to prevent the world from knowing the facts of the case. It was a plain and outrageous violation of the laws of war, inasmuch as under the Geneva Convention prisoners of war may not be used as subjects of reprisal.
None of the defendants assert that it was either justifiable or excusable. Our sole task then is to ascertain what, if any, part they played in this disgraceful affair.
This murder originated in a Hitler order passed on by Keitel, who was himself enraged over the reported murder of General Brodowski by the French Maquis. According to Meurer, Berger's chief of staff, Keitel obtained a list of three French generals, from whom the victim was to be selected, either from or through the office of the Wehrmacht Inspector for Prisoner-of-War Affairs (General Westhoff's agency). General de Boisse, sometimes described in the testimony as General du Bois, was first selected.
Meurer testified that when Berger's office first learned of the preparatory measures which had taken place between Keitel and General Westhoff's office, and between the latter and the commandant of the Koenigstein camp, and that these had been discussed over the telephone, he called attention to the danger that the matter might leak out prematurely; that he called Berger's attention to this and the latter approved of Meurer's suggestion that Keitel be informed of the facts. This was done and the suggestion made to Keitel that someone else be named. Keitel agreed and a new list was submitted from which General de Boisse's name was eliminated and that of General Mesny added.
Meurer asserts that he had informed Berger of this by mail and that his letter being returned without comment, he assumed that Berger had seen it. He discussed the matter with Berger on his return, and found that he had not received the communication, but that he approved of Meurer's action, saying, "because after all, there are no possibilities left." He testifies, however, that Berger knew of the first phase of the matter and was horrified, saying that in no case would he agree to having this murder carried out; that the first orders were addressed to Himmler, as commander in chief of the replacement army, and to the RSHA, with copies to Berger's office and the Foreign Office for information.
The witness further testified that around 12 December 1944 Berger protested to Himmler and unsuccessfully tried to see Hitler, and informed Meurer that, "I hope Himmler will intervene and the whole thing will die"; that when Berger returned to his office early in January 1945, after his Christmas vacation, he felt very optimistic and thought that the whole matter would die out, but around 9 January 1945 or 10 January 1945, he called Meurer to him and in a highly excitable manner wanted to know whether the preparations originally proposed for the transfer of these prisoners to another camp had been made, from which Meurer knew that something new had come up.
Berger testified that he first heard of the Fuehrer or Keitel's order about 10 November 1944, and this from Meurer, and told Meurel that "very well, if Marshal Keitel wants to shoot to death his imprisoned generals, let him do it alone without us" (Tr. p. 6334); that in the 2 weeks which followed he, Berger, was not in his office, having suffered a concussion after being buried in debris as a result of a bombing raid, and that he was ill at least up to 28 November 1944, and that when he returned he discussed the matter with Meurer and said that he, Berger, would first talk to Kaltenbrunner, but that he was unsuccessful in this attempt; that he tried to see Himmler, but was likewise unsuccessful until 12 December 1944 when he met Himmler at Ulm; that Himmler reproached him about the matter, and read him a letter from Fegelein, Himmler's liaison officer between the Waffen SS and Hitler, in which Keitel was alleged to have said that he knew Berger would try to prevent the reprisal measure against Mesny, and that Himmler knew that Berger had sabotaged the matter.
Berger did not testify as to what he had done to sabotage it and the documents themselves clearly show that it had not been sabotaged, but that the matter was proceeding according to plan and was being delayed because of an inability to decide upon the manner in which the murder should be committed.
Berger further testified that Himmler left him abruptly, and that he hardly had an opportunity to mention the Mesny case, and that immediately thereafter he sent in his resignation; but on 18 December 1944 Himmler called him up and told him that he thought it over and perhaps
Berger was right, and that he would talk to Hitler personally about it, and said that he was writing Berger a Christmas letter, and that he would hear the rest later and Berger would be very pleased; that the Christmas letter had reached Berger on 22 December 1944 and said that Himmler had talked to Kaltenbrunner and that the Mesny murder would be delayed and not carried out.
Berger further testified that on 2 January 1945 he returned from his Christmas leave, and between 7-9 January 1945 Fegelein called him on the telephone and said: "The Fuehrer is furious and deeply embittered because the reprisal had not been carried out in spite of his order;" that it had taken more than 3 months to get it carried out; that he had managed to cope with obstinate generals and that he could manage to cope with obstinate SS generals. He states that after this talk with Fegelein, he called up Meurer and told him that Keitel was making new efforts and would try to carry the matter to a finish, and that he, Berger, had to leave immediately to take over the German Volkssturm in Thuringia and attend to other matters, and told Meurer "to look very keenly and let me know"; that he first learned of Mesny's death on 25 January 1945 or 26 January 1945.
He further testified that while he did not select Mesny's name, nevertheless, when Meurer informed him about it, he was sure that efforts to have the matter stopped would be unsuccessful that he said: "It does not matter at all whether it is one name or another."
The record does not bear out this claim of inactivity on the part of the defendant and his agency as is shown in the official documents of the Foreign Office. Von Ribbentrop apparently learned of this plan and the part which the Foreign Office was to play in it about 11 November 1944. He, on that date, instructed the defendant Ritter to inform Wagner, chief of Department Inland II, to make sure that nothing happened in the Brodowski matter before Himmler and the SD had agreed with Wagner regarding the "modalities" and the possible later manner of reporting. These instructions Ritter passed on to Wagner on 12 November 1944.
On 13 November 1944 Wagner instructed von Thadden to arrange a meeting between himself, Ritter, and Kaltenbrunner, which, however, did not take place. On 14 November 1944 Kaltenbrunner's adjutant informed von Thadden that the meeting was probably superfluous because Hitler's order had been annulled in the meantime. This von Thadden reported to Ritter, who stated that this could not be so because Marshal Jodl on the night of 13 November 1944 had informed him to the contrary. Von Thadden immediately informed Kaltenbrunner's adjutant that the information which his office had was erroneous, and that the adjutant stated that the Fuehrer order had not been submitted to Kaltenbrunner but to Berger. On the same day von Thadden called Berger's office, found that he was ill and that only Colonel Meurer knew of the matter. He left a message for Meurer to call him at once on the telephone, but as the latter did not do so, von Thadden himself called Meurer who said that strangely enough the orders had not been sent to Berger, but to Juettner, who had asked Berger to hold a French general, whose name was not known, in readiness for eventual measures of reprisal, but that on 13 November 1944 Juettner had informed Meurer that the Fuehrer order had been rescinded and that he considered the matter closed.
This information von Thadden immediately passed on to Ritter who asked to be connected with Kaltenbrunner's office. On 17 November 1944 Kaltenbrunner informed Wagner that he had just received the order and asked for a discussion as he had been instructed to contact the Foreign
Office before taking action, but inasmuch as he was compelled to leave, he asked Wagner to take the matter up with SS Oberfuehrer Panzinger who had been assigned to the task.
On 18 November 1944 the proposed discussion took place in which it was agreed that Panzinger would submit the SD proposal to the Foreign Office for comment, as Himmler had ordered that no decision be made without approval of the Foreign Office; that the proposed execution would take place between 27-30 November1944; the preliminary new proposal was to transfer five or six French generals from the Koenigstein camp to another camp, each to go in a separate automobile with an SS guard dressed in Wehrmacht uniform. General de Boisse's car would break down in order to separate it from the others, thus providing an opportunity of shooting the general in the back "while attempting to escape."
On 28 November 1944 Bobrick informed Wagner that Panzinger had stated various changes had been made in the program, but that he had spoken to Meurer again and would inform them immediately, and had promised the Foreign Office a plan for the elaboration of the project by the middle of that week.
On 6 December 1944 Bobrick wrote Wagner stating that Panzinger had reported in the presence of those concerned in the matter that he had had another detailed conference with Meurer, Berger's chief of staff, concerning requested modifications chiefly in connection with the car question, and that Panzinger would draft his final report before the end of the week and would so inform Himmler.
On 113 December 1944 Wagner reported Panzinger's plan of action, viz: To have the senior ranking French general put in the last of the automobiles, as a mark of special attention due his rank; that the cars would bear Wehrmacht insignia but be driven by SS guards dressed in Wehrmacht uniform, and that in the course of the journey the murder would be effected in one of two ways either during the drive the general's car would be stopped at a suitable spot and he would be killed while "trying to escape" by well aimed shots from behind, or by using a special car which had already been constructed for the purpose, in which the General would sit alone in the back seat, the door would be locked to prevent his jumping out, the windows closed, and odorless monoxide gas introduced into the inner compartment, a few breaths of which would be sufficient to insure death; but that the cause of death would be recognizable because of the coloring of the skin resulting from the poison. Panzinger further said that his suggestions should be submitted to Himmler, and a copy of it sent to the Foreign Office.
On 16 December 1944 Bobrick reported to Brenner of von Ribbentrop's office, through Wagner, that the Fuehrer order explicitly permitted various methods of execution, and the only thing that had been fixed was the subsequent press announcement; that the report submitted to Himmler had been signed by the chief of the Prisoner-of-War Affairs (that is, the defendant Berger), and was before Kaltenbrunner for his cosignature, and then it would go to Himmler, and that Wagner's Inland II would receive a copy for von Ribbentrop's information.
On 30 December 1944 Kaltenbrunner reported to Himmler stating that the discussion with the chief of Prisoner-of-War Affairs and the Foreign Office had taken place as ordered, and led to the following proposals (giving those contained in Panzinger's report just mentioned): That provision had been made for subsequent proper attention to routine matters, such as reports, autopsy, death certificate, and burial, and the disguise of the SS men as soldiers of the Wehrmacht; that the press notice had been discussed with Wagner of von Ribbentrop's office; that von Ribbentrop desired to talk with Himmler about the matter and expressed the opinion that it must be coordinated in every respect; and finally, that it had been learned that the name of the man in question, the victim, had been mentioned in the course of various long-distance discussions between the Fuehrer headquarters and the chief of Prisoner-of-War Affairs, and the latter had proposed to use another man with the same qualifications, to which Kaltenbrunner had agreed, and intended to leave the choice of the name of the new victim with the chief of Prisoner-of-War Affairs.
On 4 January 1945 Wagner reported to von Ribbentrop, transmitting a copy of Kaltenbrunner's report, stating that assurances had been given that von Ribbentrop would be informed of Himmler's reply prior to the execution of the plan.
On 6 January 1945 Schmidt, of the von Ribbentrop office, wrote Wagner that the Foreign Minister wanted to discuss the matter with Albrecht of the legal department, to ascertain what rights the Protecting Power would have in the matter, and to adjust the plan accordingly; and further that the minister thought that the announcement of the incident in the press should, as far as possible, be phrased in the same way as the notes of the occurrence which provoked the plan, so that responsible parties on the other side might clearly recognize the answer to their own move.
On 12 January 1945 Bobrick wrote Legation Councillor Krieger of the legal department, informing him of von Ribbentrop's request, and asked that after discussing the matter with Albrecht, the necessary information to the minister be drawn up; that allowance should be made, among other things, for the possible legal rights of General Bridoux's commission, or those of the International Red Cross and other authorities, relating, for example, to an exhumation, post mortem examination, notes to the army information office, report to Bridoux, filing of questionnaires for the International Red Cross, forwarding of personal effects, etc.
On 18 January 1945 Krieger of the legal department sent a report to Bobrick on the questions involved. However, as Mesny was murdered on 19 January 1945, it was entirely unlikely that it reached von Ribbentrop before the murder had occurred.
General Westhoff was called and testified that after 1 October 1944 Berger was the senior officer of the whole Prisoner-of-War Affairs, and Keitel and the OKW were negligible factors; that this was the purpose of handing the matter over to Berger; that the OKW for a long time had tried to prevent prisoner of war affairs from being handed over to Himmler; and that the only reason why Keitel insisted that discussions with the Protecting Power should be carried out with the Wehrmacht was because of his fear that those powers would not deal or negotiate with Himmler. The witness states that Berger had charge of all camps and asserts that the defendant had complete authority to issue orders and inflict punishments.
Berger stands in a very different position than the defendants Steengracht von Moyland and Ritter. He was chief of Prisoner-of-War Affairs. His jurisdiction over them was complete, and his responsibility toward them clear and unequivocal. He excuses himself by saying that the Koenigstein camp was not under his jurisdiction, but that of the Wehrmacht, and that therefore he is not responsible for what happened.
In view of the clear and unequivocal testimony of General Westhoff, who was in a position to know the facts, we do not accept Berger's story. But even if what he claims is true, his responsibility remains the same.
General Mesny was taken from that camp to be transported to another camp, and it is not claimed that from the time he left Koenigstein he was under any jurisdiction other than that of the chief of
Prisoner-of-War Affairs. The transport column was in command of one of his own officers, and another of his officers was likewise present. His chief of staff was not only aware of what was planned, but he participated in it and the conferences regarding it. He consented to and approved of Meurer's furnishing Mesny's name to take the place of that of General de Boisse. He was informed by Meurer of the reason for the change. It clearly appears that, notwithstanding his alleged refusal to permit his department to have anything to do with the matter, that he did so, and he or his chief of staff attended the conferences between Kaltenbrunner's offices and the Foreign Office regarding same.
We do not credit his statement that he did not know of Kaltenbrunner's report or did not know what proposals were made, for on 16 December 1944 Kaltenbrunner reported to Wagner of Inland II that the report had already been signed by the chief of the Prisoner-of-War Affairs, and was then on Kaltenbrunner's desk awaiting his signature.
On 30 December 1944 Kaltenbrunner states (NG-037, Pros. Ex. 1249):"The discussions about the matter in question with the chief of the Prisoner-of-War Affairs and the Foreign Office have taken place as ordered, and have led to the following proposals * * *", being those which we have heretofore discussed.
"In the meantime, it has been learned that the name of the man in question has been mentioned in the course of various long distance calls between the Fuehrer headquarters and the chief of Prisoner-of-War Affairs, and therefore the Chief of Prisoner-of-War Affairs now proposes the use of another man with the same qualifications. I agreed with this and proposed that the choice be left to the chief of Prisoner-of-War Affairs."
There was no reason why Kaltenbrunner should make this up out of whole cloth. He did not thereby himself avoid any responsibility, inasmuch as he baldly describes the plan, the alternative murder methods which could be adopted, the fact that men under his own command would commit the murder, that he agreed with Berger's suggestion that a substitute be made for the victim first proposed. No one suggests that Kaltenbrunner was thin-skinned or unduly sensitive about taking human life, and he could gain nothing by inserting a gratuitously false statement in his report.
But even if we were inclined to believe that Berger protested and attempted to obtain a rescission of the order, the fact is that his own testimony does not absolve him. When he learned early in January 1945 that the murder was to be carried out, his own instructions to Meurer were "to look very keenly and let me know." In order that no question of inaccuracy of translation can arise, we have had the sound track rerun and his exact language transcribed, and the translation thereof checked by two of the official interpreters. The transcript is accurate.
Conceding that Berger gave Meurer these instructions, and this, by the way, Meurer did not confirm, they are a far cry from refusing to carry out the measures proposed, or from ordering Meurer to refrain from carrying them out. Berger himself pictures Meurer as one by nature and training an automaton, and had Meurer received any orders from him, either not to permit or cooperate in this nefarious scheme, there can be no question that the latter would have unhesitatingly obeyed, particularly in view of the fact that his chief, Berger, was no underling, but a lieutenant general in the Waffen SS, whose authority over prisoners of war exceeded that of Keitel himself; that the actual carrying out of this callous murder was one in which Berger's agency took an active part is evidenced by the fact that it was his office which reported the matter to General Westhoff, saying that Mesny had been killed "while attempting to escape."
The fact that Mesny was not chosen until after 30 December 1944 and that this proposal came from the chief of Prisoner-of-War Affairs is shown from Kaltenbrunner's report, and disposes of the claim made by Berger and Meurer that it was not until some 10 days later that they learned that the project had been revived.
If Berger had any qualms about this matter he stifled them, and not only permitted but actively engaged in the commission of this crime. We find him guilty.
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