THE PRESIDENT: Not at the moment, but in the course of time.
M. DUBOST: I shall have to apply to the French Government in order to
discover whether in our archives there is any trace of a communication
from the French Government to the German Government dated later than 26
April.
THE PRESIDENT: In the event of your not being able to get any
satisfactory explanation, the Tribunal will take notice of Dr. Nelte’s
objection, or criticism rather, of the document.
It is pointed out to me, too, the fact that the two earlier documents to
which you are referring are documents addressed by the Ambassador of
France to M. Abetz, the Ambassador of Germany; and it may be, therefore,
that there is a similar correspondence in reference to Document Number
F-668 (Exhibit Number RF-361) here in the same file, which is the file
of which the French Government presumably has copies, or might have
copies.
M. DUBOST: It is possible, but that is only a hypothesis which I do not
want to formulate before the Tribunal. I prefer to produce the
documents.
THE PRESIDENT: I quite follow; you cannot deal with it for the moment.
As to the other matter which is raised by Dr. Exner, the Tribunal
considers that Document Number 532-PS, which has been submitted under
Exhibit Number RF-368, should be struck out of the Record in so far as
it is in the Record. If the United States and the French Prosecutors
wish the document to be put in evidence at a future date, they may apply
to do so. Similarly the defendant’s counsel, Dr. Exner, for instance, if
he wishes to make any use of the document, of course he is at liberty to
do so.
In reference to the other matters which Dr. Exner raised, it is the wish
of the Tribunal to assist defendants’ counsel in any way possible in
their work; and they are, therefore, most anxious that the rules which
they have laid down as to documents should be strictly complied with,
and they think that copies of the original documents certainly should
contain anything the original documents themselves contain.
This particular document, Number 532-PS, as a copy, I think I am right
in saying, does not contain the marginal note in the script which the
original contains. At any rate it is important that copies should
contain everything which is on the originals.
Then there is another matter to which I wish to refer. I have already
said that it is very important that documents, when they are put in
evidence, should not only be numbered as exhibits, but that the exhibit
number should be stated at the time; and also even more important, or as
important, that the certificate certifying where the document comes from
should also be produced for the Tribunal. Every document put in by the
United States bore upon it a certificate stating where it had been found
or what was its origin, and it is important that that practice should be
adopted in every case.
The only other thing I want to say is that it would be very convenient,
both to defendants’ counsel and to the Tribunal too, that they should be
informed at least the night before of the program which counsel proposes
to adopt for the following day. It is true, as was said, that perhaps
that has not been absolutely regularly carried out by the Prosecutor on
all occasions; but it has been done on quite a number of occasions
within my recollection, and it is at any rate the most convenient
practice, which the Tribunal desires should be carried out; and they
would be glad to know above all what you, M. Dubost, propose to address
yourself to tomorrow; and the Tribunal would be very grateful to know
how long the French Prosecutors anticipate their case will take. They
would like you, before you finish or at the conclusion of your address
this afternoon, to indicate to the Tribunal and to the defendants’
counsel, what the program for tomorrow is to be.
SIR DAVID MAXWELL-FYFE: If Your Honor please, I wonder if I could say
one word in regard to the position as to documents, because I had an
opportunity during recess of consulting with my friend Mr. Dodd, and
also with my friend M. Dubost. All PS documents form a series of
captured documents, whose origin and the process taken subsequent to the
article, were verified on 22 November by an affidavit by Major Coogan,
which was put in by my friend Colonel Storey. It is the submission of
the Prosecution, which, of course, it is delighted to elaborate any time
convenient to the Tribunal, that all such documents being captured and
verified in that way are admissible. I stress the word admissible, but
the weight which the Tribunal will attach to any respective documents
is, of course, a matter at which the Tribunal would arrive from the
contents of the document and the circumstances under which it came into
being. That, I fear, is the only reason I ventured to intervene at the
moment, that there might be some confusion between the general
verification of the document as a captured document, which is done by
Major Coogan’s affidavit, and the individual certificate of translation,
that is, of the correctness of the translation of the different
documents, which appeared at the end of each individual American
document. The fact is that my friend, Mr. Dodd, and I were very anxious
that that matter should be before the Tribunal, and we should be only
too delighted to give to the Tribunal any further information which it
desires.
THE PRESIDENT: Does that affidavit of Major Coogan apply to all the
other series of documents put in by the United States?
SIR DAVID MAXWELL-FYFE: It applies to PS and I think it is D, C, L, R
and EC.
THE PRESIDENT: Does that certificate then cover this particular sheet of
paper which is marked 532-PS, and has on it no other identifying mark?
SIR DAVID MAXWELL-FYFE: Yes. The affidavit proves that that was a
document captured from German sources; it gives the whole process—what
happens after. I have not troubled the Tribunal by reading it, because
as such we submit that it is admissible as a submission. Of course, the
matter of weight may vary. I do not want the Tribunal to be under a
misapprehension that every document was certified individually; what is
certified is, of course, a non-captured document. If a document comes
from any of the sources mentioned in Article 21, then someone with
authority from his government certifies it as coming from one of these
sources and that we do individually. But concerning captured documents,
we do not make any individual certification; we depend on Major Coogan’s
affidavit.
THE PRESIDENT: Yes, but just a moment. Sir David, it is perhaps right to
say in reference to this particular document, 532-PS, or the portion of
it which has been produced, first of all that the copy which was put
before us did not contain the marginal note, and that it is, therefore,
wrong. We are in agreement with your submission that it has been
certified, as you say, by Major Coogan’s affidavit, which is admissible;
but, of course, that has nothing to do with its weight. That is the
point on which Dr. Exner was addressing us.
SIR DAVID MAXWELL-FYFE: So I appreciated it, Your Honor.
THE PRESIDENT: It is a document—being a private document and not a
document of which we can take judicial notice—which has not been read
in court by the United States or other prosecutors, and it is not in
evidence now because it has not been read by M. Dubost.
SIR DAVID MAXWELL-FYFE: Your Honor, with that, of course, I do not
desire anything further. That is the ruling of the Tribunal. The only
part that I did want to stress was that the PS as such is being verified
and, of course, subject to reading it in Court, it could be put in.
THE PRESIDENT: Thank you. We quite understand that.
I ought to say, on behalf of the Tribunal, that we owe an apology to the
French Prosecutor and his staff, because it has just been pointed out to
me that this marginal note does appear upon the translation and,
therefore, M. Dubost, I tender to you my apology.
M. DUBOST: I thank you, Mr. President. The Tribunal will certainly
remember that this morning Document Number 1553-PS was set aside, which
includes in it bills for gas destined for Oranienburg and Auschwitz. I
believe that, after the explanation given by Sir David, this Document
1553-PS may now be admitted by the Tribunal since it has already been
certified.
THE PRESIDENT: Was it read, M. Dubost?
M. DUBOST: Yes, Mr. President. I was in the process of reading it this
morning. It is the 27th document in the second document book of this
morning, but the Tribunal rejected it, with the demand that I furnish an
affidavit. The intervention of Sir David constitutes this affidavit. I
beg the Tribunal to forgive my making this request, but I should be
grateful if it would accept the document which was refused this morning.
THE PRESIDENT: Very well.