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:
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"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,
"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,"
and
"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),
"* * * 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."
An act of naturalization under such circumstances is not voluntary.
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.
