PROFESSOR DOCTOR FRANZ EXNER (Counsel for Defendant Jodl): I am
protesting against the presentation of Document 532-PS, dated 24 June
1944. That is a draft of an order which was presented to Jodl but which
was crossed out by him and therefore annulled.
At this opportunity I would also like to call the attention of the Court
to the fact that we, the Counsel for the Defense, did not receive a
document book like the one presented to the Tribunal; and it is
therefore very hard for us to check and to follow the presentations of
the Prosecution. Every morning we receive a pile of documents, some of
which partly refer to future and some to past proceedings. But I have
not seen a document book in chronological order for weeks. Furthermore,
it would be desirable for us to receive the documents the day before. In
that case, when testimony is presented, we could be of assistance to
both sides.
THE PRESIDENT: Dr. Exner, are you saying that you have not received the
document book or that you have not received the dossier?
DR. EXNER: I did not receive the document book, I would like to add
something further. Some of the documents which have just been presented
were quoted without signatures and without date, and it is questionable
whether these so-called documents are to be considered as documents at
all.
THE PRESIDENT: Well, I imagine that you have just heard—I have told M.
Dubost that he must announce the exhibit number which the French
Prosecutor is giving to any document which he puts in evidence. As I
understand it, he has been putting numbers upon the documents; but in
certain cases he has not announced the number in open court. The
document, as you have seen, has been presented; and, as I understand, it
has a number upon it, but he has not in every case announced the number;
and the Tribunal has told M. Dubost that it wishes and it orders that
every document put in by the French Prosecutor should have an exhibit
number announced in Court. That meets the one point that you raised.
As to your not having the document book, that is, of course, a breach of
the order which the Tribunal has made that a certain number of copies of
the documents should be deposited in the defendants’ Information Center
or otherwise furnished to defendants’ counsel.
As to Document 532-PS . . . .
[_There was a pause in the proceedings while the Judges conferred._]
Dr. Exner, is there anything further you wish to say upon these points,
because we are just about to have a recess for a few moments. We would
like to hear what you have to say before we have the recess.
DR. EXNER: I have nothing further to add to that; but if I may be
permitted to make a further remark, we were advised that it was Your
Honor’s wish that we should hear every day what is to be the subject of
the proceedings on the following day, which would, of course, be a great
help to our preparations. So far, that has never been the case. I myself
have never heard what was to be dealt with the following day.
THE PRESIDENT: Thank you. M. Dubost, the Tribunal would like to hear
what you have to say upon the points raised by Dr. Exner. First of all,
upon the Document 532-PS; secondly, why he did not receive a document
book; and lastly, why he has not received any program as to what is to
be gone into on the following day.
M. DUBOST: As to the question of program, as Dr. Exner pointed out, the
custom of providing it has not been established by the Prosecution. No
one has ever given it, neither the French Prosecution nor its
predecessors. Perhaps I did not attend the session the day the Tribunal
requested that the program should be given. In any case I do not
remember that the Prosecution was ever requested to do that.
As far as the document book is concerned, it is possible that this book
was not handed to the Defense in the form which is before the Tribunal,
that is to say, with the pages numbered in a certain order. However, I
am certain that yesterday I sent to the Defense Counsel’s rooms the text
in German and several texts in French of all the documents which I was
to submit today. I cannot assure the Tribunal that they were handed over
in the order in which you have them before you, but I am sure that they
were sent.
THE PRESIDENT: As to Document 532-PS?
M. DUBOST: I had not begun to read Document 532-PS, Mr. President, so I
could not have concealed the fact that there was a handwritten note in
the margin.
THE PRESIDENT: Is it a document that had been put in before?
M. DUBOST: I do not believe so, Mr. President. In my dossier there are a
certain number of documents which I have not read, as I knew it was the
Tribunal’s wish that I should shorten my presentation; and Document
532-PS, which I submitted under Exhibit Number RF-368, is one of those.
THE PRESIDENT: The document, according to Dr. Exner, is a draft of a
decree which was presented to Jodl but was not granted by him. Those
were his words, as they came through on the translation; and, therefore,
he submits that it is not to be considered and there is nothing to show
that the document was ever anything more than a draft.
If so, isn’t it clear that it ought not to be received in evidence?
M. DUBOST: This is a question which the Tribunal will decide after
having heard the explanation of Dr. Exner. This document did not seem to
me of major importance to my presentation, since I did not read from it.
In any case, as I did not read it, I could not have hidden from the
Tribunal that there was a handwritten note in the margin. It is certain
that this handwritten note is an element to be taken into consideration,
and on which the Tribunal will base its decision whether Exhibit Number
RF-368 should be accepted or rejected, after having heard the
explanation of the Defense.
[_A recess was taken._]
DR. NELTE: Mr. President, I had occasion during the recess to talk to my
client, Keitel. Before the recess, the French Prosecutor had submitted
as evidence Document Number F-668, Exhibit Number RF-361, an extract
from a note from Admiral Darlan, addressed to the French Ambassador
Scapini. The French Prosecutor believes, as I presume from his words,
that he has proved by this that the agreements between German generals
and French troops, who had laid down their arms, had not been kept. In
view of the gravity of these accusations I would be obliged to the
French Prosecution if they would declare, with respect to this document,
first, whether these serious accusations of the French Government had
also been brought to the attention of the German Government? The French
Prosecutor had concluded from this document that the information
contained therein was also proved. I would like to point out that it is
an excerpt from a note from Admiral Darlan to the French Ambassador,
Scapini. It is not clear from this document whether Ambassador Scapini
had taken the necessary steps with the German Government or,
furthermore, what reply was made by the German Government to this note.
For this reason I would like to ask the French Prosecutor to declare
whether he can establish from the documents he had whether these serious
accusations were brought to the attention of the German Government, and
secondly, what reply was made by the German Government. Since these
documents of the Armistice Commission are in possession of the
victorious powers, it is neither possible for the defendants nor the
Defense to produce evidence themselves.
[_M. Dubost approached the lectern._]
THE PRESIDENT: [_Turning to M. Dubost._] Perhaps the most convenient
course would be, if you wish to say anything about the objection which
Dr. Nelte has just made, for you to say it now. As I understand it, that
objection is that this document, F-668 (RF-361), is a note by Admiral
Darlan complaining that certain French troops were surrendered on the
terms that they were not to be made prisoners of war, but were
afterwards sent to Germany as prisoners of war. What Dr. Nelte says is,
was that matter taken up with the German Government and if so, what
answer did the German Government give? That seems to the Tribunal to be
a reasonable request for Dr. Nelte to make.
M. DUBOST: The reply was given, Mr. President, by Ambassador Scapini’s
letter addressed to Ambassador Abetz.
THE PRESIDENT: My attention is drawn to the fact that the two documents
to which you refer are dated 4 April. The document to which Dr. Nelte
refers is a subsequent document, namely, 22 April. Therefore it does not
appear, from documents which were anterior to the document of 22 April,
as to what happened afterwards.
M. DUBOST: Mr. President, I, myself, am not aware of this. These
documents were forwarded to me by the Prisoners-of-War Department. They
are fragmentary archives forwarded by an official French office, which I
shall inform of the Tribunal’s wish.
THE PRESIDENT: Perhaps it should be investigated and found out whether
the matter was taken up with the German Government and what answer the
German Government gave.