Thomas Kues on Maly Trostenets: Lying about a German Court Judgment In a judgment issued on 21.05.1963, the Court of Assizes (Landgericht - LG) in Koblenz, German Federal Republic, sentenced several former participants in mass crimes committed in the years 1941-44 in the areas of Minsk, Koidanow, Rakow, Slonim and Sluzk in present-day Belarus, including the Maly Trostenets killing site near Minsk. Case Nr. 552
Crime Category: War Crimes, Euthanasia, Mass Extermination Crimes by Einsatzgruppen, Mass Extermination Crimes in Camps, Other Mass Extermination Crimes
Accused:
Dalheimer, Karl Robert 4 Years
Harder, Arthur Alexander Judgment annulled by the BGH; no subsequent judgment found
Heuser, Georg Albert Wilhelm 15 Years
Merbach, Friedrich 7 Years
Schlegel, Rudolf 8 Years
Stark, Franz life sentence
Wilke, Artur Fritz 10 Years
Court:
LG Koblenz 630521
Country where the crime was committed: Belarus
Crime Location: Minsk, HS KL Gut Trostinez, Koidanow, Rakow, Slonim, Sluzk
Crime Date: 41-4406
Victims: Jews, Civilians, Mentally Disabled
Nationality: Soviet, German, Austrian
Agency: Polizei Sipo Minsk, Sonderkommando 1005
Subject of the proceeding: Shootings, gassings in 'gas vans', as well as burning alive of thousands of Soviet and West European Jews, who had been deported to Minsk, of Gypsies, mentally disabled, other Soviet civilians and Soviet agents, during the years1941-1944, within the jurisdictional territory of the KdS/BdS Minsk. Reprisal shootings: among them, execution of 300 men, women and children from Minsk, after the attempt on the life of Generalkommissar Kube

Published in Justiz und NS-Verbrechen Vol. XIX

The subject matter of the judgment included the defendants’ participation in the following mass executions of Jews in the area of the Kommandeur der Sicherheitspolizei und des SD (Commander of Security Police and Security Service –hereinafter KdS) Minsk in the years 1942 to 1944 (numbers of victims according to the court’s findings of fact):

1. Rakow operation, 4 February 1942 – ca. 100 victims
2. Minsk/Koldanow operation, 1-3 March 1942 – at least 3,000 victims
3. Transport operations, 11 May to 9 October 1942 – at least 13,500 victims
4. Slonim operation, April, May or June 1942 – at least 200 victims
5. Minsk ghetto operation, 28-30 July 1942 – at least 9,000 victims
6. Sluzk operation, 8 February 1943 – at least 1,600 victims
7. Shooting of Jews employed at the Generalkommissariat in Minsk, 20 July 1943 – 70 victims
8. Liquidation of the Minsk ghetto, autumn 1943 – at least 4,000 victims
9. Final executions prior to the retreat from Minsk, June 1944 – ca. 500 victims.

The so-called transport operations (item 3) being the subject of Kues’ falsehood that this blog is meant to expose, a closer look at the court’s findings of fact regarding these operations is required.

In November 1941 a total of about 7,000 Jews were sent to Minsk from various cities in the Reich and the Protectorate Bohemia and Moravia (Hamburg, Düsseldorf, Frankfurt, Berlin, Brünn, Bremen and Vienna). They occupied a part of the ghetto cleared of local Jews in mass shootings that took place from 7 to 11 November, which was separated from the local Jews’ ghetto that held about 18,000 inhabitants after the November shootings. Originally it had been planned to transport about 25,000 Jews from the Reich and the Protectorate to the General District White Ruthenia (the fate of Jews in this district is discussed in the blog More «Evidence for the Presence of "Gassed" Jews in the Occupied Eastern Territories» (1)). However, transportation difficulties caused by the strong winter led to a suspension of these transports in December 1941. Most of the Jews on these transports succumbed to hardship in the ghetto or fell victim to the various killing operations in Minsk mentioned above.

Transports from the Reich to Minsk were resumed in May 1942, by which time the Nazi government had decided to wipe out the Jews throughout Europe and not just those of the occupied Soviet territories. In April 1942 Heydrich went personally to Minsk and informed KdS Strauch that now also the German and other European Jews were to be exterminated, announcing that the transports of Jews from the west to Minsk, interrupted in late 1941, would be resumed and ordering that the arrivals be immediately killed. In accordance with Heydrich’s announcement a total of 16 freight trains arrived at Minsk between May and October 1942, carrying a total of 15,002 Jews from Vienna, Königsberg, Theresienstadt and Cologne, of whom at least 13,500 were killed immediately after arrival. In a table reproduced in Part 1 of Kues "preliminary historical survey" regarding Maly Trostenets, the court listed the train number, place of origin, number of deportees and date and place of arrival of each of these trains, as well as the minimum number of deportees from each train found to have been killed immediately upon arrival.

Regarding the evidence underlying its findings of fact as concerns the transports, the number of deportees and the numbers killed, the court’s statements translate as follows:

The findings of fact about the trains’ departure station, the number of occupants, the place and the time of unloading are mainly based on the Reichsbahn files of the Main Railway Direction Center (Haupteisenbahndirektion Mitte) in Minsk, which are in Soviet possession and were available to the jury court in photocopy. Only the arrival date of transport Da 201 cannot be gleaned from the Reichsbahn documents. It has been credibly stated by the witness Seb., one of this transport’s survivors. The authenticity of the Reichsbahn documents is not in doubt. Their contents are also in accordance with the defendants’ depositions, the witness testimonies as well as other documents. Thus as concerns all transports from Vienna complete name lists with the time of departure and the place of destination Minsk have been preserved; these are kept partially as originals, partially as photocopies in the Archive of the International Red Cross’s International Tracing Service in Arolsen and were there made the subject of a legal inspection. Only in regard to some transports there are minor divergences. As it cannot be clarified which data are correct, the lower number in each case was considered in the defendants’ favor. This procedure was adopted regarding the transport Da 40, proven by the Reichsbahn files alone, for which various documents mention the number of those transported as having been 465 and 470 (photocopies nos. 27 872 and 27877), whereas elsewhere 770 are mentioned (photocopy nº 27 891).
In order to establish how many of the deported Jews were killed after arrival, a certain deduction had to be made from the number of transported persons. This because possibly some people died a natural death on the transport already. It was furthermore considered that always a number of persons were selected for work at the Trostinez estate. The statements of defendants and witnesses in this respect vary. The witness Seb., who arrived with the first transport from Vienna in Minsk on 11 May 1942 and since then lived on the estate under the name Hoch., stated in her read-out interrogation by a public prosecutor on 20 March 1962 that from each transport 20-40 people were taken to the estate as workers. On the other hand the former co-defendant Mad., who undertook the selection on several occasions, spoke of 50-80 persons in his also read-out deposition before a public prosecutor on 7 February 1961. In order to take into account all eventualities, the jury court assumed a minimum number of only 900 victims for each of the transports that carried about 1,000 occupants. As from the two smaller transports DA 40 with 465 and Da 230 with 500 persons accordingly fewer workers were selected, the number of those killed has here been established as 400 and 500.

None of the deportees arriving on these transports were taken into the Minsk ghetto, notwithstanding the defendant Heuser’s claims to the contrary regarding two transports in the summer of 1942. The court did not believe the defendant because none of the other defendants made a similar claim and five witnesses who had survived the Minsk ghetto and would surely have noticed these arrivals did not recall anything in this direction. The reason alleged by the defendant for the diversion of these transports – the dead end track via which deportees had been taken to the Trostenets killing site was supposed to have been blocked by an anti-aircraft battery – was also not considered credible by the court, insofar as the KdS could easily have found a means to overcome such hindrance.

As concerns the killing procedure for these transports, Kues has already been so kind to provide an extensive partial translation of the court’s findings of fact, which I have complemented with parts left out by Kues and posted on the HC forum’s thread Partial translation from the judgment LG Koblenz v. 21 Mai 1963.

These detailed findings of fact with all their harrowing particulars, which are largely quoted by Kues himself, make it rather hard to understand how Kues could with a straight face write down the following claim in Part 1 of his "preliminary historical survey" (along with other claims there and in Part 2, which may be the subject of future blogs):

While the court took pains to determine the number of deportation trains, their departure and arrival dates, as well as the number of deportees, there is no hint in the verdict that any kind of verification was carried out of the claim that the vast majority of the deportees had indeed been murdered following their arrival at Trostenets. Rather it appears that this was taken judicial notice of based on a sworn statement that the former Kds Minsk head Eduard Strauch had made in January 1948.

Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted.Rule 201 of the US Federal Rules of Evidence allows a court to take judicial notice of a fact that is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned". The German Criminal Procedure Code (Strafprozessordnung - StPO) does not contain such provision, but it allows the court to reject an application to take evidence made by the prosecution or the defense for a number of specified reasons, one being that the fact to be proved or disproved by the evidence whose taking is applied for is a matter of common knowledge (Section 244 paragraph 3 second sentence andSection 245 paragraph 2 third sentence of the StPO).

So what is Kues asking his readers to believe here?

He is obviously asking them to believe that:

a) Strauch’s sworn statement made in January 1948 contained all details about the killing process mentioned in the court’s findings of fact, from the choice and precise location of the killing site over the organization and execution of the killings (including the way intended participants were summoned to take part, the type and quantity of weapons employed and ammunition issued, the killing method, the ruses used to mislead the victims and other specifics) down to the particulars of the gas vans, the background of their use and the aspect of the people killed therein;

b) A jury court of a democratic state of law like the German Federal Republic, bound by defendant-friendly procedural rules (including but not limited to Section 244paragraph 2 of the StPO, which rules that "In order to establish the truth, the court shall, proprio motu, extend the taking of evidence to all facts and means of proof relevant to the decision"), flagrantly violated these rules, for instead of meticulously reconstructing the killing process and each individual defendant’s participation therein on hand of eyewitness testimonies (whose credibility it could assess through direct interrogation and cross examination) and of the documentary evidence at its disposal, the court is supposed to have relied for findings of fact leading to far-reaching decisions about the defendants’ future lives (namely whether they would spend the rest of their lives or a considerable part thereof in prison) on nothing but a sworn statement made almost fifteen years before, moreover pronouncing the claims made in that statement to be facts of common knowledge.

If the court’s findings of fact about the massacres themselves already make Kues’ above-quoted claim seem rather absurd, this applies all the more to the findings of fact about what each defendant did at the killing site. Take, for example, the court’s findings of fact about the first two transport operations in which the defendant Heuser took part (my translation, emphases added):

a. At the shooting of 900 people from the first railway train Da 201 from Vienna on 11 May 1942 he [Heuser] was allocated as a marksman. In the early morning he drove with his car to the copse near the Trostinez estate that commander Strauch had determined to be the execution site. He positioned himself in the line of marksmen and fired with his pistol first on a Jew not mortally wounded by someone else who already lay in the pit. In the further course of the execution he killed those led up to him by a shot in the neck. Heuser remembers to have fired "like an automaton". Now and then he switched places with a member of the cordoning detachment. How many people he shot himself cannot be established.
The defendant Heuser admits to this sequence of events. His confession is credible.

b. According to the plans of the Reichssicherheitshauptamt in Berlin at that time, which were later modified, after the transport Da 201 another 17 transports with 1,000 forcibly deported Jews each were to be brought to Minsk until early September and exterminated there. The competent directorates of the GermanReichsbahn thus each issued timetable instructions for their district, in which the exact course of the train with stations and times was established. For the line between Wolkowysk and Minsk there applied Timetable Instruction Nr. 40 from the Haupteisenbahndirektion Minsk dated 13 May 1942. According to this instruction, between 16 May and 5 September one train per week with about 1,000 "re-settlers" was to arrive in Minsk each Saturday; these trains bore the numbers Da 202 to Da 218. The transport scheduled for 16 May 1942 was cancelled for unknown reasons, so that the next one would have been due on 23 May, the Saturday before Pentecost. As the arrivals were to be killed without further delay, the timetable instructions would have meant that over a period of several months the men of the KdS would have had to carry out executions on weekends.

In order to avoid this, commander Strauch instructed SS-ObersturmführerLütkenhus, who was in charge of Jewish matters instead of Burkhardt since late March/early April 1942, to negotiate with the Haupteisenbahndirektion in Minsk. On 22 May there was a meeting between Lütkenhus on the one hand and on the other Reichsbahn High Official (Reichsbahnoberrat) Reichardt as well as the witnesses Lo. and Ka., who at the time belonged to the directorate as Reichsbahn officials (Reichsbahnräte). On the following day the defendant Heuser confirmed the result of the meeting in writing. The letter he signed himself pointing to his representation capacity. This he did because commander Strauch had gone on home leave the day before and appointed him representative in his absence.
The letter had the following wording:

The Commander of Security Police and Security Service White Ruthenia
II B
Minsk, 23.5.1942

To the
Reichsbahndirektion - Mitte .
Att. Mr. Reichsoberrat Reichardt

oViA-

Subject: Agreement about transports of Jews from the Reich
Reference: Meeting with SS-Obersturmführer Lütkenhus on 22.5.42

Following today’s meeting between Mr. Reichsoberrat Reichardt and theReichsbahnräte Lo. und Ka. with SS-Obersturmführer Lütkenhus, I briefly summarize the result of the negotiations as follows:

1. The transport expected here on the Saturday before Pentecost shall be detained at Koydanoff so that it only arrives at Minsk in the night to the Tuesday after Pentecost. The exact time of arrival I shall yet ask about there.

2. The Reichsbahndirektion - Mitte shall apply at the Reichsbahn’s competent service for a corresponding postponement of departure times also for the further transports of Jews.

3. The Reichsbahndirektion is prepared to, until approval of this schedule change, keep on its own initiative all further Jewish transports during weekends at Koydanoff in such a manner that the trains arrive at Minsk in the night to Monday or another weekday except Friday, Saturday or Sunday.

4. The Reichsbahndirektion shall as far as possible lead the transports upon arrival at Minsk to a track that allows for the approach of the trucks employed by me.

For the obligingness shown in the above matter I express my special thanks.

In representation Dr. Georg Heuser.

After 22 May, when Lütkenhus had spoken with the HaupteisenbahndirektionMitte, the witness Ka. issued an instruction by railway service telegram that the train Da 203 was to depart at Koidanow only on 26 May at 4:39 hours and arrive at the Minsk freight station at 6:09 hours on the same day. At the same time the witness directed that Da-trains were until further notice to be stopped at Koidanow and await special instructions regarding the continuation of their journey.
According to this change of schedule the transport Da 203 from Vienna was received by the detachments of the KdS only on 26 May 1942. The defendant Heuser again took part in the execution of this transport as a marksman. He killed an unknown number of people. In the afternoon, when the executions were finished or approaching completion, there also appeared at the pit the witness Dr. Kun. He was a criminal police officer and had the equivalence rank of an SS-Hauptsturmführer; he had been in Minsk only for a few days. According to his own words the defendant Heuser had "invited" him to come and watch the matter. The witness was so shocked by the sight of the pit filled with hundreds of bodies that he couldn’t eat afterwards. In total the operation claimed at least 900 victims.

Maly Trostenets Extermination Camp