THE PRESIDENT: Dr. Stahmer, the Tribunal does not desire you to read
your application. If you will just say in your own words, as shortly as
you can, why you want the particular witness, they will then consider
it. And if Counsel for the Prosecution wish to object, they will do so.
Then the Tribunal will finally decide the matter.
DR. STAHMER: The witness I have named, General of the Air Force
Bodenschatz, who is here in the Nuremberg prison, was with the Defendant
Göring since 1933, first as adjutant and later as minister, as Chief of
the Ministerial Office. He is, therefore, informed about all the
principal events of that time. I have named him as a witness for a
number of facts which are individually contained in my written
statement, but especially that he took part in a conference which took
place at the beginning of August 1939 in Soenke Nissen Koog, at which
Göring met with English negotiators in order to bring about, with them,
the possibility of a peaceful solution of the difficulties already
existing at that time between Germany and Poland. At that time he
declared to the English negotiators that a war must not take place under
any circumstances, and that they must endeavor to settle these
differences peacefully.
Furthermore, he has made known statements, made by Göring during the
past years, particularly 1936 to 1939, from which it can be seen that
the intention of the Defendant Göring was to avoid a war, if possible.
He declared that the policy of the Reich should be conducted in such a
way that a war could not break out under any circumstances.
Furthermore, this witness knows about the attitude of Göring when he
first heard from Hitler that Hitler intended to attack Russia.
Finally he is also informed about the social attitude of Göring, whom he
had ample opportunity to know very well, particularly after 1939.
Those are, generally, the facts about which Bodenschatz could testify
here as a witness.
SIR DAVID MAXWELL-FYFE (Deputy Chief Prosecutor for the United Kingdom):
May it please the Tribunal, may I say one general word about the
procedure of the Prosecution?
My colleagues in all the delegations have asked me to deal primarily
with these particular applications. There will be some of them, if the
Tribunal pleases, on which certain of my colleagues would like to add a
word as they have special interest in them. But in general, and on the
whole, I shall deal with the applications for the Prosecution.
May I say that the Prosecution has proceeded on this principle, that if
there is any point of relevance in a witness for whom application is
made, they will not, of course, object. But they want to make it quite
clear, so the Tribunal will understand, that they are not, by making no
objections, accepting the position that every point set out in the
document or mentioned by counsel is admitted to be relevant. By making
no objection they are simply admitting that there is some relevant point
in the matter put forward.
On that basis—and the Tribunal will understand why I have to be careful
in the matter—the Prosecution makes no objection in the case of General
Bodenschatz.
THE PRESIDENT: Yes, Dr. Stahmer.
DR. STAHMER: I further name as a witness the former Gauleiter, Dr.
Uiberreither, who is at present here in the prison at Nuremberg.
Uiberreither is to offer the following evidence. He can give information
about a speech . . .
THE PRESIDENT: May I say this to Sir David that perhaps, in view of what
you have said, you might be able to indicate at the opening of Dr.
Stahmer’s motion in respect to each witness whether the Prosecution has
any objection to the witness. Perhaps that would make it easier for him
to deal shortly with it.
SIR DAVID MAXWELL-FYFE: May I say that we have no objection to Dr.
Uiberreither, on the same basis as I mentioned.
THE PRESIDENT: I only meant that if Counsel for the Prosecution indicate
to us that they have no objection to a particular witness, then Dr.
Stahmer can deal more shortly with the witness.
DR. STAHMER: Surely.
THE PRESIDENT: Just inform us what the relevance of the evidence is, but
do it shortly because the Prosecution has got no objection.
DR. STAHMER: Yes.
THE PRESIDENT: In the case of this particular witness, would it not be
equally convenient to the Defense, for the purpose of shortening things,
to have this evidence taken either out of an affidavit or by
interrogatories?
DR. STAHMER: Regarding the witness Uiberreither, I have no objections if
I have the possibility of getting a statement from the witness himself.
THE PRESIDENT: Before you pass on, you might just tell us what the
substance of the evidence is.
DR. STAHMER: Uiberreither was present when Göring, in the summer of
1938, delivered a speech before the new Gauleiter of Austria in which he
dealt with the policy of the Reich and in which he spoke about the goal
and purpose of the Four Year Plan. The witness, furthermore, was present
when Göring, some time after 10 November 1938, that is, after the
demonstration against the Jews, called all the Gauleiter to Berlin and
there criticized those actions very severely. Those are the two subjects
of evidence.
THE PRESIDENT: Very well. Then we can pass on to Number 3 now.
DR. STAHMER: The witness is Lord Halifax. Referring to this witness
. . .
SIR DAVID MAXWELL-FYFE: If I may indicate—the interrogatories have been
served on and answered by Lord Halifax. The Prosecution has no objection
to the interrogatories. Of course, it objects to his being called as a
witness, but we understand that the Tribunal and Dr. Stahmer agree to
Lord Halifax being dealt with by means of interrogatories, and we have
no objections.
DR. STAHMER: I am satisfied with the reply to my interrogatories which I
have already received and I do not insist on summoning the witness.
THE PRESIDENT: Very well.
DR. STAHMER: The next witness is the witness Forbes. I may say that also
in this case the submission of an interrogatory was approved and the
interrogatory, as far as I have been able to determine, has been sent
out already. I have not yet received an answer.
SIR DAVID MAXWELL-FYFE: Well, we have no objection to Sir George
Ogilvie-Forbes being dealt with by interrogatories. I will do my best to
see that the answer will be forthcoming as soon as possible. My
recollection—I wasn’t able to check it—is that Sir George is at a
foreign capital, but I will do my best to see that the answers are
brought and certainly will do everything to help on the point.
DR. STAHMER: Whether I can ultimately forego him I shall naturally be
able to judge only when I have the interrogatory before me. It may be
that in regard to some questions he has given an insufficient answer.
THE PRESIDENT: Do you mean Dahlerus or Sir George Ogilvie-Forbes?
DR. STAHMER: Forbes.
THE PRESIDENT: Yes. Well, the interrogatories will be submitted to you
as soon as they are answered.
DR. STAHMER: Yes, Sir.
THE PRESIDENT: And I think the same is true of Dahlerus. Interrogatories
have been granted for him.
DR. STAHMER: With regard to the testimony of Dahlerus I have to say the
following: The testimony of this witness seems to me so important that
an interrogatory could not exhaust all his knowledge and therefore I ask
to have the witness called so that he can be interrogated here in court.
If this should not be possible, I ask for the opportunity to question
him personally at Stockholm. Dr. Siemers knows Dahlerus personally, and
he will make a statement concerning this witness.
DR. WALTER SIEMERS (Counsel for Defendant Raeder): I have known Mr.
Dahlerus personally for many years. Dahlerus has written to me about the
fact that Dr. Stahmer intends to call him as a witness. Mr. Dahlerus, in
principle, is prepared to come to Nuremberg without further ado if the
Court approves. As soon as the Tribunal agrees, Mr. Dahlerus, as far as
I can deduce from his letter, will certainly be ready to come
personally.
I wish to say something else, as a matter of principle. In the case of
important witnesses who, as for instance Mr. Dahlerus, could answer
questions which are of far-reaching historic importance, most probably
not only one defendant’s counsel will want to ask questions, but the
subject concerns several Defense Counsels. Therefore, an interrogatory
which comes only from Dr. Stahmer, would, in my opinion, not be
sufficient in such a case. I therefore ask the admission of the witness
also from this point of view.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the position as to
the Witness Dahlerus is that Dr. Stahmer has put in interrogatories
consisting of 62 questions. I make no complaint of that at all. I only
bring it to the notice of the Tribunal to show that Dr. Stahmer has
certainly covered the ground.
In addition, if the Tribunal would turn for a moment to Dr. Stahmer’s
application for documents, they will see that Item 26 is Dahlerus’
book—if the Tribunal will pardon my Swedish—_Sista Forsoket_, (_The
Last Attempt_). That is a quite lengthy book, dealing in detail with
this point, and it is desired, and the Tribunal has allowed, that Dr.
Stahmer will use it.
In addition, the position of Mr. Dahlerus has been the subject of
interrogatories to Lord Halifax, who was then the British Foreign
Minister, and to Sir George Ogilvie-Forbes, who was then Counsellor in
Berlin, and on the main point of the matter, that Dr. Dahlerus had
certain negotiations and paid certain visits, there is no dispute.
In my respectful submission, the defendant is well covered by the
interrogatories, the connected interrogatories to Lord Halifax and Sir
George Ogilvie-Forbes; and the book, and the evidence of the Defendant
Göring himself; and it is unnecessary to investigate this matter further
as to whether Mr. Dahlerus wishes to come and can come and should come
from Sweden.
THE PRESIDENT: Sir David, may I ask you, has the Prosecution
administered cross-interrogatories to Dahlerus?
SIR DAVID MAXWELL-FYFE: No.
THE PRESIDENT: There was another question. Did the Defendant Raeder’s
counsel apply to have Dahlerus as a witness?
SIR DAVID MAXWELL-FYFE: No. The only other mention that I know of is by
the Defendant Ribbentrop’s counsel on a limited point.
DR. HORN: Before the Court makes a decision about the witness Dahlerus,
I would like to inform the Tribunal that I have asked for that witness
for the Defendant Von Ribbentrop. The witness Dahlerus, in the decisive
hours before the outbreak of World War II in 1939, played a decisive
role. The witness Dahlerus particularly can give important evidence
about the last document which contained the conditions for further
negotiations with Poland. This document was the cause of the second
World War. I believe that this should be sufficient reason to call the
witness Dahlerus to come here, especially since Dr. Siemers has declared
that he knows that the witness is prepared to come on his own
initiative.
DR. STAHMER: In view of the importance of this motion to me, may I in
addition state the following: I have sent an interrogatory with 52
questions; but I do not believe that these questions really exhaust the
subject matter of the evidence. For it is impossible, as I said before,
to summarize everything that the witness knows strategically and to
bring it out in such sequence that the Tribunal can have a complete
picture of the important function which Dahlerus exercised at that time
in the interests of England as well as of Germany.
THE PRESIDENT: Very well, the Tribunal will consider that point.
DR. STAHMER: As the next witness, I have named Dr. Baron Von
Hammerstein, who was Judge Advocate General in the Air Force and who is
at this time a prisoner of war either in American or British hands.
SIR DAVID MAXWELL-FYFE: With regard to Dr. Von Hammerstein, the Tribunal
allowed interrogatories on the 9th of February; and Dr. Stahmer has not
yet submitted the interrogatories; and the witness is not yet located. I
have no objection to interrogatories. It seems as if this is essentially
the type of witness that interrogatories would be most helpful with. He
was the equivalent, as I understand it, of our Judge Advocate General of
the Air Force, and interrogatories as to procedure, as foreshadowed in
this application, would be a matter to which the Prosecution takes no
objection at all. If he can be found, then Dr. Stahmer can administer
the interrogatories as soon as he likes.
DR. STAHMER: As far as I can find out, I have not received any
resolution that an interrogatory should be submitted, but I would
nevertheless like to ask to call Hammerstein as a witness.
THE PRESIDENT: You must be mistaken about that, Dr. Stahmer, because
upon our documents the right to administer interrogatories was granted
on the 9th of February.
DR. STAHMER: I cannot find it at the moment. I must check on it first;
but in any case I am making the request.
Hammerstein has known the defendant for many years, specifically in a
field which is of greatest importance for the forming of an opinion
concerning the defendant’s attitude towards justice and also towards the
treatment of the population in occupied territory and of prisoners of
war, and here also in my opinion, it will be decisively important that
the witness should give to the Tribunal detailed information about these
facts and describe them in a manner which cannot possibly be expressed
in an interrogatory or in answer to an interrogatory.
SIR DAVID MAXWELL-FYFE: I am told, My Lord, that the interrogatories
have been sent in and reached the Tribunal Secretariat a day or two ago.
I don’t want to add to my point.
DR. STAHMER: I believe that is correct.
THE PRESIDENT: Yes, Dr. Stahmer, the next one?
DR. STAHMER: The next witness is Werner von Brauchitsch, Jr., colonel in
the Air Force, son of General Field Marshal Von Brauchitsch, who is here
in the courthouse prison in Nuremberg.
SIR DAVID MAXWELL-FYFE: I have no objection to Colonel Von Brauchitsch.
DR. STAHMER: This witness is to give information about the attitude of
the defendant with regard to lynch justice, to terror fliers, and with
regard to his attitude towards enemy fliers in general.
Next, General of the Air Force Kammhuber, who is a prisoner of war
either in American or British captivity.
SIR DAVID MAXWELL-FYFE: With regard to General Kammhuber,
interrogatories were also allowed on the 9th of February of this year,
and they have not been submitted, as far as my information goes, and
again the witness has not been located. I have no objection to
interrogatories, and when the interrogatories are received, probably Dr.
Stahmer could decide whether it is necessary to call the witness.
I remind the Tribunal that this sketch was introduced in quite guarded
terms by Colonel Griffith-Jones, and therefore it seems to me the sort
of subject that might well be investigated by interrogatories.
THE PRESIDENT: Sir David, do you think that some agreed statement could
be put in about this?
SIR DAVID MAXWELL-FYFE: If we could see the result of the
interrogatories, we would certainly be willing to consider that, because
as the Tribunal will no doubt remember, it was the plan showing the
Luftwaffe commands in Warsaw and other districts outside Germany, and
Colonel Griffith-Jones, in dealing with it, said that he was not stating
positively that it had been placed before the Defendant Göring.
Therefore, if we have a statement, we should be most ready to consider
it, and, if possible, agree on the point.
THE PRESIDENT: Yes, Dr. Stahmer?
DR. STAHMER: General of the Air Force Koller, a prisoner of war in
American hands.
SIR DAVID MAXWELL-FYFE: The Prosecution has no objection to General
Koller. The Tribunal ordered on 26 January that he should be alerted. He
has not yet been located, but if he is located, then clearly the matters
suggested are relevant in the view of the Prosecution.
DR. STAHMER: Colonel General Student, a prisoner of war in English
hands.
SIR DAVID MAXWELL-FYFE: The Prosecution has no objection to this
witness. If Your Lordship will allow me one moment, I have not had the
chance to take this particular point up with my French colleague. As far
as I know there is no objection. I would like to verify that.
[_There was a pause in the proceedings._]
I am grateful to Your Lordship. My French colleague, M. Champetier de
Ribes, agrees that he has no objection.
DR. STAHMER: General Field Marshal Kesselring, who is in the courthouse
prison in Nuremberg at the present time.
SIR DAVID MAXWELL-FYFE: This is on the same point, and the Prosecution
takes the same attitude: No objection.
THE PRESIDENT: We would like to hear some explanation from you, Dr.
Stahmer, on what the evidence—what is the relevance of Field Marshal
Kesselring’s evidence.
DR. STAHMER: The facts about which he knows I consider relevant because
the Prosecution has declared that Rotterdam had been attacked without
military necessity, and that the attack, in addition, took place at a
time when negotiations were already under way for the capitulation of
the city.
THE PRESIDENT: You do not say where General Student is, but General
Student and Field Marshal Kesselring are to give evidence, as I
understand it, on exactly the same point, and therefore, if Field
Marshal Kesselring were called as a witness, wouldn’t it be sufficient
to give interrogatories or get an affidavit from General Student?
DR. STAHMER: Yes, I agree.
SIR DAVID MAXWELL-FYFE: Agreed, My Lord.
THE PRESIDENT: Very well.
DR. STAHMER: Dr. Von Ondarza, Chief Surgeon of the Luftwaffe, whose
whereabouts are unknown to me, but who has presumably been released from
captivity and may be at his home in Hamburg now.
SIR DAVID MAXWELL-FYFE: The next two witnesses are really on the same
point. As I understand it, I thought that—my copy is very bad, but I
read it—the defendant was not informed of the experiments conducted by
two doctors—the first one must be Rascher, I think, and Dr. Romberg—on
inmates of Dachau and other places; that the defendant himself never
arranged for any experiments whatsoever on prisoners, and Field Marshal
Milch—Paragraph A—said that the defendant was not informed of the
letters exchanged between the witness and Wolff concerning the
experiments conducted by Dr. Rascher in Dachau, in which prisoners were
employed, and the witness did not even inform the defendant of this
subject; and that Dr. Rascher, on assuming his activity in Dachau,
withdrew from the Luftwaffe and joined the SS as a surgeon.
Clearly evidence on that point may be relevant. We have no objection to
the witness being called.
It is the position with regard to the first witness, Dr. Von Ondarza,
that he is not located. The Tribunal ordered that he should be alerted
on 26 January. Field Marshal Milch is in the prison. Again I should have
thought that in these circumstances we would make no objection to Field
Marshal Milch being called on this point, and if the surgeon, Von
Ondarza can be located, then I shall agree to interrogatories, but I
don’t feel very. . .
THE PRESIDENT: Would that be agreeable to you, Dr. Stahmer, if we were
to grant the application to call Field Marshal Milch on this point and
were to allow an interrogatory for the other witness when he has been
located?
DR. STAHMER: I have also examined the question whether the evidence
would be cumulative. That is not the case. The evidence to be offered by
Milch is slightly different, and the Defendant Göring considers it
important to have Ondarza as a witness because Dr. Ondarza was his
physician for many years and therefore is well informed, and he is
furthermore to tell us that the Defendant Göring did not know anything
about the experiments which were made with these 500 brains. That is not
yet in my application, but I have just found out about that. There was a
long deposition which was submitted by the Prosecution concerning these
500 brains. I protested against that at the time and I was told that I
should make this objection at a specified time.
THE PRESIDENT: Very well, the Tribunal will consider what you say upon
that. You can turn now to Körner.
DR. STAHMER: State Secretary Paul Körner, who is here in Nuremberg in
the courthouse prison. . .
SIR DAVID MAXWELL-FYFE: There is no objection on the part of the
Prosecution.
THE PRESIDENT: Dr. Stahmer, in our documents it is stated that the
suggested witness Paul Körner is not located, but in the document of
your application you say that he is in the Nuremberg prison.
DR. STAHMER: I did receive that information at one time. At this moment
I cannot say where my information comes from.
SIR DAVID MAXWELL-FYFE: I am afraid I do not know, but I could easily
find out for the Tribunal. I will ask if the matter can be checked.
THE PRESIDENT: If you would, yes.
SIR DAVID MAXWELL-FYFE: Yes, I have just been given a roster of
internees on the 19th of February and he does not appear to be in that
list.
THE PRESIDENT: In the Nuremberg prison?
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: That is the information that I had.
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: Well, will you go on about this evidence, Dr. Stahmer?
DR. STAHMER: Körner was a state secretary since 1933 and he can testify
about the purpose behind the establishment of concentration camps in
1933, about the treatment of the people imprisoned there, and that
Göring was in charge of these camps only until 1934. He can also testify
about the measures and regulations, the purpose and aim of the Four Year
Plan, and also about the attitude of the defendant after he had been
informed in November 1938, about the anti-Jewish incidents.
THE PRESIDENT: Very well, the Tribunal will consider that.
DR. STAHMER: Dr. Lohse, art historian, either in an English or an
American camp.
SIR DAVID MAXWELL-FYFE: My information, My Lord, is that interrogatories
were allowed on the 9th of February. They have not yet been submitted,
and the witness is not yet located. I have no objection to
interrogatories with regard to Dr. Lohse or the next witness, Dr.
Bunjes, who deals with the same point.
THE PRESIDENT: Yes.
DR. STAHMER: Also the testimony of the witness Lohse seems to me
important—considering the weight of the accusations which have been
made here against the defendant—so important that I ask to hear him as
witness here before this Tribunal. The question is a very short one: He
is to testify as to what the defendant’s attitude was toward the
acquisition of art objects in the occupied territories. That is, to be
sure, a very short subject, but for the judgment of the defendant it is
extremely important; and the accusation made by the Prosecution in this
respect is extremely serious.
THE PRESIDENT: You are dealing now with Dr. Bunjes?
DR. STAHMER: No, still with Lohse.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal; the interrogatories
apparently seemed a suitable method to the Tribunal, and the Prosecution
respectfully submits that we should see what Dr. Lohse can say in answer
to the interrogatories, and then Dr. Stahmer can, if necessary, renew
the application.
THE PRESIDENT: Yes, is there anything you want to say about Dr. Bunjes?
DR. STAHMER: The last witness is Dr. Bunjes, the art historian.
SIR DAVID MAXWELL-FYFE: He seems to be, My Lord, in exactly the same
position as Dr. Lohse, and I do not think I need repeat what I said.
THE PRESIDENT: Except that he may be located. I do not know where he is.
SIR DAVID MAXWELL-FYFE: Yes, I think this is the first reference to Dr.
Bunjes, and therefore we have not been able to find out whether he can
be located or not.
THE PRESIDENT: Yes, perhaps Dr. Stahmer knows.
DR. STAHMER: I am told just now that Dr. Lohse is in the camp at
Hersbruck. That is here in the vicinity of Nuremberg.
SIR DAVID MAXWELL-FYFE: Yes, I shall have inquiries made about him.
THE PRESIDENT: Dr. Bunjes—do you know where he can be located?
DR. STAHMER: No; his home is in Trier, but whether he is there I do not
know.
THE PRESIDENT: Yes. Very well, that concludes your witnesses, does it
not?
DR. STAHMER: Yes, Sir.
THE PRESIDENT: Are those all the witnesses that you are applying for?
DR. STAHMER: Yes.
THE PRESIDENT: As far as you know, is that your final list?
DR. STAHMER: I cannot yet foresee how far the Prosecution, which has not
finished the presentation of its case, will make it necessary for me to
make further applications.
THE PRESIDENT: Before we consider your documents the Tribunal will
adjourn.
[_A recess was taken._]
THE PRESIDENT: Perhaps we can deal with the documents more as a whole.
Have you anything to say about them?
DR. STAHMER: Mr. President, may I make a statement concerning the two
witnesses, Koller and Körner? I was just told that Koller was Chief of
Staff of the Air Force, and Körner a lower staff officer. Both were
repeatedly questioned by the occupying forces. This indication may make
it easier and more possible to locate the witnesses.
SIR DAVID MAXWELL-FYFE: I will note that point and, of course, we will
do our best to help in locating them.
THE PRESIDENT: Which two witnesses are those?
SIR DAVID MAXWELL-FYFE: Koller and Körner. They are both witnesses to
whom I made no objection.
THE PRESIDENT: Yes, very well.
SIR DAVID MAXWELL-FYFE: It might be convenient, if the Tribunal please,
if I were to explain the general position of the Prosecution with regard
to the documents, and then Dr. Stahmer could deal with these points
because they fall into certain groups which I can indicate quite
shortly. There are three documents which are not in evidence, but to
which there is no objection: Number 19, the Anglo-German Naval
Agreement. That is a treaty, of course, and the Court can take judicial
cognizance of it.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: And the Constitution of the German Reich, the
Weimar Constitution of 11 August 1919. Again I shall assume the Court
will take judicial cognizance of it.
THE PRESIDENT: Certainly.
SIR DAVID MAXWELL-FYFE: And Number 30, Hitler’s speech of 21 May 1935.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: Then there are a number which are already in
evidence as far as I know:
Number 4, the Rhine Pact of Locarno; Number 5, the Memorandum to the
Locarno Powers of the 25th of May 1935; Number 6, Memorandum to the
Locarno Powers of the 7th of March 1936; Number 9, the Treaty of
Versailles; Number 17, the speech by the Defendant Von Neurath, of 16
October 1933; Number 18, the proclamation by the Reich Government, of
the 16th of March 1935. And then Number 7 was referred to but not read.
That is the speech by the Defendant Von Ribbentrop before the League of
Nations on the 19th of March 1936. All these are in or have been
referred to and, therefore, there is no objection as far as they are
concerned.
Then we come to a series of books. Dr. Stahmer has at the moment
referred to the whole book: Number 1, the late Lord Rothermere’s book,
_Warnings and Prophecies_; Number 2, the late Sir Nevile Henderson’s
_Failure of a Mission_; Number 3, the references to a number of years of
the _Dokumente der Deutschen Politik_.
THE PRESIDENT: Those appear to be repeated, don’t they, in the ones that
follow or some of them? Six and seven, for instance, are taken from
those volumes, aren’t they, of the _Deutschen Politik_?
SIR DAVID MAXWELL-FYFE: Yes, apparently they are, My Lord. If I might
just give Your Lordship the others so that you have the group together:
Number 8, Mr. Fay’s book on the _Origin of the World War_, the first
World War; Number 20, Mr. Winston Churchill’s book, _Step by Step_;
Number 24, the Defendant Göring’s book, _Building up a Nation_; Number
26, to which I have already referred, is Mr. Dahlerus’ book, _The Last
Attempt_.
With regard to these, there are two points: First of all, it is
mechanically impossible to translate the whole of these books into
Russian and French. I think most of them are in English already;
secondly, the relevancy of the book cannot be decided until we see the
extract which Dr. Stahmer is going to use. So the Prosecution submits
that Dr. Stahmer should at the earliest opportunity let us know what are
the extracts on which he relies so that they can be translated and we
can decide as to whether they are relevant or not.
Now the fourth category of books or documents, where either the issue is
not clear or insofar as it is clear, it is obviously irrelevant. One to
which I have already referred comes into this:
Number 8, Fay on _The Origin of the First World War_. Number 10, speech
by President Wilson, of 8 January 1918—that is the 14-point speech;
Number 11, the note of President Wilson, of 5 November 1918—that is the
Armistice note; Number 12, a speech by M. Paul Boncour, of 8 April 1927;
Number 13, a speech by General Bliss in Philadelphia, which is before
1921, because it is quoted in _What Really Happened at Paris_, published
in 1921; Number 14, a speech by the late Lord Lloyd George of 7 November
1927; Number 15, an article by Lord Cecil, on the 1st of March 1924, and
another on the 18th of November 1926; Number 16, Lord Lloyd George’s
memorandum for the peace conference of 25 March 1919.
May I pause there. As far as the Prosecution can judge, the only
relevancy of these books and documents is to the issue of whether the
Treaty of Versailles accorded with the 14 Points of President Wilson.
The Prosecution submits that that is poles removed from the issues of
this Trial and is just one of the matters against which the whole
intendment of the Charter proceeds and which should not be gone into by
this Court. It may be that I am wrong, or so it seems, difficult, in
view of the collection of documents, to suppose that there is another
issue, but it may be, and I put it in this way, that Dr. Stahmer ought
to indicate quite clearly what is the issue to which these documents are
directed and, where the document is long, to indicate what extract he
refers to. But if the issue be that that I have referred to, then in the
submission of the Prosecution—I speak for all my colleagues—we submit
that it is a completely irrelevant matter.
I am sorry; I should have included in that same category Number 21 and
22, which are two letters of General Smuts in 1919. They ought to be
added.
Then I have already dealt with Number 20, Mr. Churchill’s book. Apart
from the question of extracts, again the Prosecution submits that it
ought to be made clear what is the issue for which that book has been
quoted.
Number 23 is a missive of M. Tchitcherin, stated to be the Foreign
Commissar of the U.S.S.R., to Professor Ludwig Stein. Again the
Prosecution has not the slightest idea as to what is the issue to which
that is directed.
The Defendant Göring’s book, I have already dealt with, and I ask that
we should get extracts. Number 28, General Fuller’s book on _Total War_
or an essay on _Total War_—again the Prosecution does not know the
issue at which it is directed.
Then my fifth category, Number 27, which is the White Books of the
German Foreign Office.
And I draw attention to Number 4, document to the Anglo-France policy of
extending the war; Number 5, further document as to the western policy
of extending the war; Number 6 are secret files of the French General
Staff; Number 29, documentations and reports of the German Foreign
Office regarding breaches of the Hague regulations for land warfare and
Crimes against Humanity committed by the powers at war with the German
Reich. These last documents seem to raise quite clearly the issues of
_tu quoque_: If the Reich committed breaches of the laws and usages of
war, other people did the same thing. The submission of the Prosecution
is that that is entirely irrelevant. The standard is laid down by the
conventions and it is no answer, even if it were true that someone else
had committed breaches. But, of course, there is the additional reason,
that it would be quite impracticable and intolerable if this Tribunal
were to embark on the further task of investigating every allegation,
however tenuously founded, that some one else had not maintained these
conventions.
It is in the submission of the Prosecution—again I speak for all my
colleagues—a matter which is completely irrelevant; and therefore we
object to any evidence, whether oral or documentary, intended on that
point. Of course, we all along have taken the view that we have no
objection to the Defense Counsel having access to these documents in
order to use them for refreshing their memory as to the background, but
we object to their introduction in evidence for the reasons that I have
given.
THE PRESIDENT: Yes, Dr. Stahmer, perhaps you could say in the first
instance whether you agree, that so far as the books are concerned that
you would be willing to provide the extracts upon which you rely? You
cannot expect the Prosecution or the Tribunal to get the whole books
translated.
DR. STAHMER: This was also not my intention, and I believe that I
prefaced my list of documents with a remark in which, under Number 2 I
had pointed out, and had declared myself willing to specify the
quotations. To that extent, of course, the objection in itself is in
order.
THE PRESIDENT: Yes, I see. Very well.
DR. STAHMER: Another topic the Prosecution has attacked is the books
which I have cited, and which refer to the Treaty of Versailles. Here
also I will state specifically to what extent I wish to use quotations
from these books. As a matter of principle, however, the Defense must be
granted the right to present its point of view in this matter, since
after all. . .
THE PRESIDENT: Dr. Stahmer, all these books which Sir David referred to,
of which the Tribunal will take judicial notice, of course, you can make
comment upon them if you wish, as on any document of which the Tribunal
takes judicial notice.
[_There was a pause in the proceedings while the Judges conferred._]
THE PRESIDENT: Oh, I thought you were referring to the Treaty of
Versailles.
DR. STAHMER: No; with the literature concerning the Treaty of
Versailles.
THE PRESIDENT: You are now dealing with the ones which Sir David
itemized as follows: 8, 10, 11, 12, 13, 14, 15, 16, 21, and 22?
DR. STAHMER: Yes.
THE PRESIDENT: Very well.
DR. STAHMER: Since an essential accusation made by the Prosecution is
that the defendants violated the Treaty of Versailles, the Defense
naturally has to take a stand relative to the question as to whether and
to what extent the breach of the treaty took place and whether and to
what extent that treaty was still valid. To that extent, at least, the
books and dissertations which deal with these questions are important. I
believe that an understanding of this question in detail can be reached
only after I have submitted the quotations, and that will take place at
the beginning of the presentation of testimony. I have not been able to
accomplish the work.
THE PRESIDENT: Aren’t you confusing the question of validity with the
question of justice?
DR. STAHMER: No, Sir.
THE PRESIDENT: Go on.
DR. STAHMER: I believe that in this sphere also the Defense is justified
in demanding the presentation of the _White Books_, because the contents
of these _White Books_ will, to a great extent, be of importance in the
question of the war of aggression; and to that extent also a reference
to these books has significance. Here also, I believe, it will only be
possible to make a decision after the individual quotations from these
_White Books_ have been read.
Furthermore, the presentation of the reports concerning the breaches of
the Hague Convention has been demanded. I believe that this motion
cannot be rejected with the remark that it is not concerned with the
question whether such breaches were committed on the other side too.
This fact, in my opinion, is of importance in two ways. First of all, to
reach a just decision one has to make sure whether the conduct on the
other side was really correct and beyond reproach and it is furthermore
of importance because it involves the question of whether the defendants
were not resorting to retaliatory measures.
THE PRESIDENT: I think you have dealt with each topic with the exception
of Numbers 20, 23, and 28. Number 20 is Mr. Winston Churchill’s book; 23
is Tchitcherin’s, and 28 is General Fuller’s book. We will take those.
DR. STAHMER: Book Number 20, Churchill’s _Step by Step_—here we are
concerned with statements in which Churchill at one point expresses his
opinion as to whether England, by the Naval Treaty of 1935, had not
sanctioned Germany’s renunciation of the Versailles Treaty.
Furthermore, this book is of importance as far as I can see it now, in
evaluating the extent to which England rearmed, and finally at various
points in that book there are references to Hitler’s personality.
SIR DAVID MAXWELL-FYFE: I say with the greatest respect to Dr. Stahmer
that he has reinforced my point, that if Dr. Stahmer is putting forward
the thesis that in order to reach a proper decision on the matters
before the Tribunal it is necessary to investigate whether other
belligerents have committed breaches of conventions, then, as I say, I
join issue with him _in toto_. I cannot add to the matter. But with
regard to Mr. Churchill, Dr. Stahmer makes three points; one, that some
passages in the book give color to the idea that by the naval agreement
the validity of the Versailles Treaty was affected. That is a point to
which there are obviously many answers, including the facts that France
was a party to the treaty and the United States was a party to a treaty
in the same terms. But clearly Mr. Churchill’s view expressed in a book,
as to the legal effect of one treaty or another, is in my submission
irrelevant.
Equally irrelevant is the British rearmament and the personality of Mr.
Churchill himself. And I respectfully submit, without going into detail,
that Dr. Stahmer has, by his examples, confirmed the argument that these
matters are irrelevant to the issues before the Court. I do not wish to
say more.
THE PRESIDENT: Dr. Stahmer, the Tribunal would like to know if you would
go back from this question, or if you like, deal with anything you have
to say about Sir David Maxwell-Fyfe’s observations about Mr. Churchill’s
book. If you prefer to do that, do that now.
But afterwards, and before you finish your argument upon these
documents, the Tribunal would like to hear you somewhat further about
Document 8 and following up to 22, in order that you should develop your
argument as to how those documents can be relevant. For instance,
Document 10 and Document 11, the speeches and notes of President Wilson.
How can such documents as that have any bearing upon this Trial or
indeed upon the validity of the Treaty of Versailles? But take it in
your own order.
DR. STAHMER: These speeches form the foundation of the Versailles Treaty
and they are significant therefore for the interpretation of the treaty.
Consequently it is important to refer to the speeches, in order to judge
the contents of the treaty and the question whether Germany rightfully
or wrongly renounced the treaty, that is, whether thereby a breach of
the treaty took place, or whether the treaty actually gave Germany the
right to withdraw.
THE PRESIDENT: Is that all you wish to say about that?
DR. STAHMER: Yes.
THE PRESIDENT: Very well. Do you wish to say anything further about
Number 20, 23, or 28?
DR. STAHMER: I have spoken about 20. Number 23 refers to the same
questions regarding the interpretation and the contents of the treaty.
THE PRESIDENT: The statement by the Foreign Commissar of the U.S.S.R. in
1924. . . . Very well, you say that it is relevant on the interpretation
of the Treaty of Versailles. And General Fuller’s book. . .
DR. STAHMER: General Fuller also refers in this speech to the
personality of Hitler and to the question of rearmament.
THE PRESIDENT: Yes, that concludes them.
[_There was a pause in the proceedings while the Judges conferred._]
The Tribunal will consider their decision upon your witnesses and upon
your documents. Have you anything further to say upon it?
DR. STAHMER: No.
[_Professor Dr. Franz Exner approached the lectern._]
THE PRESIDENT: Yes, Dr. Exner?
PROFESSOR DR. FRANZ EXNER (Counsel for Defendant Jodl): May it please
the Court, I take the liberty of adding something for the specific
reason that there is danger that evidence may be refused which is of
crucial importance for my client also. It concerns evidence which will
show that War Crimes and violations of international law were committed
by the other side too. The Prosecutor has said that this is irrelevant
as far as we are concerned here in this Trial. The Defense certainly
does not think of making defendants of the prosecutors, but this point
is certainly not irrelevant, specifically because:
First, it has to do with the concept of retaliation in international
law. Retaliation justifies an action, which under normal circumstances
would be illegal. That is to say, retaliation then has this significance
when the individual action is the answer to a violation of international
law committed by the other side. If, therefore one wants to justify
one’s own action from the point of view of retaliation—one can only do
so by proving that violations of law have preceded it on the other side.
Secondly, I want to add an important point. It is well known that this
war in the beginning was conducted relatively humanely and. . .
THE PRESIDENT: Dr. Exner, you will forgive me, the argument which you
are presenting to us was fully developed by Dr. Stahmer and will, of
course, be fully considered by the Tribunal.
[_There was a pause in the proceedings while the Judges conferred._]
THE PRESIDENT: Would you continue then, Dr. Exner?
DR. EXNER: The second point is the following: It is well known that at
the beginning of this war international law was respected on both sides
and that the war was conducted humanely. It was only in the second phase
of the war that a terrible bitterness among the fighting powers
developed and on both sides things occurred which international law
cannot sanction. In my opinion, it is entirely important in the judgment
of a crime, whatever crime that may be, to consider the motive. If one
does not know the motive of the action, one cannot judge the action
itself. And the bitterness which was started, purely psychologically, by
the manner in which the war was conducted on one side and on the other,
was the motive for actions which normally cannot be justified.
I therefore ask the Tribunal to consider carefully before this evidence
is declared irrelevant.
[_There was a pause in the proceedings while the Judges conferred._]
DR. SIEMERS: I should like to mention a matter of principle with
reference to the manner in which the relevancy of evidence is being
discussed. If I understand the Tribunal correctly, then we should talk
today about the relevancy of those witnesses and documents which are
still to be brought here. That was exactly what was stated in the
Tribunal’s decision of 18 February.
Now, however, the Prosecution has brought the discussion round to
documents which we already have in our hands. I ask the Tribunal to
understand me correctly if I protest unequivocally to this. In no case
was it possible to discuss the relevancy of the Prosecution’s documents
weeks before they were presented. If I have documents in my possession,
as is the case with most of the documents about which we have spoken,
then, as defendant’s counsel, I must be able to submit these documents
without the consent of the Prosecution.
Sir David has said that the relevancy of books which are here in the
building is to be examined after we have presented the extracts, and
then the Prosecution will decide whether they are relevant. Sir David
has also said that numerous books which are here are not relevant. If
this motion by the Prosecution is granted, then that is an extraordinary
limitation of the Defense which I cannot accept without protest.
The Prosecution was permitted to submit documents. The Court has
declared that each letter and each document could be presented and
therefore I do not understand why we are now arguing about the relevancy
of documents which are at hand, since, in my opinion, the Court has
already said that we will argue only about the relevancy of documents
which are still missing.
THE PRESIDENT: I thought that on behalf of the Tribunal I had explained
this morning—in answer to the argument of Dr. Horn on behalf of the
Defendant Ribbentrop—what the Tribunal was seeking to do today, was to
follow the provision of Article 24(d), which provides that the Tribunal
shall ask the Prosecution and Defense what evidence, if any, they wish
to submit to the Tribunal, and the Tribunal shall rule on the
admissibility of any such evidence, and I pointed out that the reason
why the Defense had been to some extent treated in a different way from
the Prosecution was because in the case of the Defense the Tribunal has
got to find all the witnesses and bring them here, and the Tribunal has
got, in many instances, to find the documents or supply the documents;
and therefore it isn’t reasonable that the Tribunal should be asked to
bring witnesses or documents here and it also is not in accordance with
the Charter, until the Tribunal has heard argument upon the
admissibility of the witness or the document. And that is what it is
doing. I thought that I had fully explained that in answer to Dr. Horn’s
argument.
It is perfectly true that you cannot rule finally on the admissibility
of a document or the admissibility of a witness until you have actually
heard the passage in the document which is relied upon or the questions
put to the witness which are said to be relevant or irrelevant.
Therefore, the final determination upon the question of admissibility
will be when the witness is put in the witness-box and asked questions
or the document or the passage from the document is actually produced.
DR. SIEMERS: Yes. Excuse me, but I believe that this still does not
answer one point. It is undoubtedly true that we are arguing here about
documents and witnesses which are not at our disposal. But it is a
different thing in the case of those documents which are already here in
this building and which are at our disposal as Defense Counsel. To give
an example:
The _White Books_ which Sir David has mentioned are here; why should we
argue now about the relevance of this evidence? This question has
nothing to do with the delay of the Trial, nor with the procurement of
documents.
THE PRESIDENT: Do you wish to say anything, General Rudenko?
GEN. RUDENKO: Yes, Mr. President. Sir David has already expressed the
point of view of the Prosecution on the question raised by the Defense
Counsel. I should like to add to what has already been said by Sir David
regarding the statements made here by the Defense Counsel.
The position of Defense Counsel Exner is that the Defense would not
intentionally turn the prosecutor into a defendant and that the Defense
will resort to a method of analysis and explanation of events which will
establish the motives, for in its opinion, the motive is unknown, and in
order to determine this motive it is necessary to examine the question:
Were the Geneva and Hague Conventions at least violated by other powers
at war with Germany? It stands to reason in my opinion—and I believe
that I am also expressing the point of view of all the Prosecution—it
is really strange to hear such a statement on the part of a lawyer after
a 3-months’ trial and after the presentation of a mass of evidence by
the Prosecution.
The Defense unquestionably has full right to submit proof—documents and
witnesses—on all counts of the charges lodged against the defendants;
and, as is evident from this morning’s session, when the Prosecution
examined the request on behalf of the Defendant Göring, as is known to
the esteemed Tribunal, the Prosecution, in its opinion, gave its
consent, in major part, to the calling of witnesses. But in the question
raised by Dr. Exner we have here positive divergences of opinions and
divergences of principle.
The Prosecution considers it impossible to diverge from the one
fundamental and decisive factor, that this is a trial of the major
German war criminals. The Tribunal is investigating atrocities
perpetrated by the Hitlerite fascists and as a result of this position,
and not losing sight of this fact, the Defense certainly could submit,
after examining and analyzing the evidence already presented by the
Prosecution, this or that evidence which in some manner could change
individual details. But it is, not admissible and it would indeed be a
grave violation of the Charter to transform examination of these charges
into a digression on questions having no relation whatever to this
particular Trial.
The Prosecution therefore so energetically objects to the requests for
and incorporation of such documents as have absolutely no relevancy to
this Trial and the examination of which, without a doubt, would lead to
a digression from the basic fact. This is what I wanted to add to what
Sir David has said on behalf of the Prosecution.
THE PRESIDENT: Before the Tribunal adjourns, as it will do now, I want
to say that the next four defendants on the Indictment are required to
name their witnesses and the subject matter of their evidence, and the
documents and the relevance of the documents, by Wednesday next at 5 p.
m. The Tribunal will hold a similar session to the session it has been
holding this morning with reference to the defense of those defendants
on Saturday next at 10 o’clock.
The Tribunal will now adjourn until a quarter past 2.
[_The Tribunal recessed until 1415 hours._]
_Afternoon Session_
THE PRESIDENT: I have an announcement to make. With reference to the
announcement that I made this morning, the Tribunal may hear the
applications for witnesses and documents of the Defendants
Kaltenbrunner, Rosenberg, Frank, and Frick before Saturday. That will
depend upon the progress of the case. I have already stated that those
applications must be deposited with the General Secretary by 5 o’clock
p. m. on Wednesday.
Secondly, all the defendants, other than the first eight named in the
Indictment, must make application naming their witnesses and the
relevancy of their evidence, and the documents and the relevancy of the
documents, by Friday next at 5 p. m.
Thirdly, the Tribunal will sit in closed session on Monday next at 4 p.
m.
Perhaps I also ought to say that this does not affect—it does not refer
directly to defendants’ counsel who represent the criminal
organizations. Those counsel will be heard after the close of the
Prosecution’s case, as has already been announced.
Next would be Hess.
SIR DAVID MAXWELL-FYFE: I only want to say that if the Tribunal did
desire to hear anything on the question of reprisals, which was raised
by Dr. Exner, Mr. Dodd is prepared, if the Tribunal would care to hear
further matter on it.
THE PRESIDENT: Yes. The Tribunal would like to hear that now.
MR. THOMAS J. DODD (Executive Trial Counsel for the United States): May
it please the Tribunal, I wish to say at the very outset, that I have
made a rather hurried preparation during the noon recess of the few
notes on this subject based on some work which we had done a little
earlier. I am not altogether prepared to go into the matter to any great
extent at this time, but I did want to call to the attention of the
Tribunal a few of these notes that we have prepared, and to say that, in
view of Dr. Exner’s contention that some of the documents which are
offered by the Defense, or which they intend or hope to offer, are
admissible on the theory or under the doctrine of reprisal.
We would like to say to the Tribunal that the Convention of 1929
concerning the treatment of prisoners of war expressly prohibits
altogether the use of reprisals against prisoners of war.
Parenthetically, I might say that the United States prohibited in its
Army instructions reprisals against prisoners of war as early as 1862 or
1863.
Secondly, I should like to point out that the Hague regulations do not
mention at all, insofar as we are able to ascertain, the use of
so-called “reprisal action” against civilians.
It appears that the Brussels conference of 1874, which accepted the
unratified Brussels Declaration, so-called in international law—that
conference rejected or struck out several sections which were proposed
by the Russians at that time, having to do with the use of reprisal
action against civilians. I cite that because it is interesting and
indicates that the powers were certainly thinking about the matter of
reprisals against civilians as early as then.
Thirdly, I should like to point out to the Tribunal that it is commonly
said by the writers on this subject that before reprisal action may be
taken a notice of some character is usually required, and this reprisal
action is directed against some specific instance which the first power
believes to be offensive and which it believes may call for or justify
the use of reprisal action. So that some notice of some kind seems to be
required by the power which feels it has been offended to the offending
power.
I might say that in the Prosecution’s case-in-chief we specifically
avoided any reference to the well-known incident during this war of the
shackling of prisoners of war, because there, there was some color of
notice, and the matter was resolved by the powers concerned.
These are the points that we have had in mind during this brief recess
this noontime, and if the Tribunal would like to have us do it, we shall
be glad to prepare ourselves further, and to be heard further on this
subject at a later date.
THE PRESIDENT: Thank you.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the position with
regard to the Defendant Hess is set out in Dr. Seidl’s communication to
the Tribunal; and I have one or two comments to make on that on behalf
of the Prosecution.
THE PRESIDENT: Will you comment upon that, Dr. Seidl? Would it be
convenient to follow the same course as we followed with Dr. Stahmer,
and perhaps Sir David may say if he has any objection, first of all to
the witnesses, one by one, that you are asking for?
DR. ALFRED SEIDL: I should like, however, to request the Court to permit
me a short preparatory remark and to make a motion.
THE PRESIDENT: Yes.
DR. SEIDL: My Lords, from what happened in this morning’s session I
gained the conviction that now the Trial has entered into a decisive
phase, at any rate as far as concerns the Defense. I consequently feel
myself obliged to make the following application.
I should like to ask that the Court, at this point in the Trial, should,
when examining the relevancy of the evidence submitted by the Defense,
limit itself to the witnesses, and postpone examination of the relevancy
of documents until a later time. To establish reason for this I permit
myself to point out the following:
The Court issued a ruling regarding the submission of evidence by the
Defense for the first time on 17 December 1945. In this ruling only
witnesses and not documents were discussed. A second decision is that of
18 February in which the following introductory remark is made, “In
order to avoid delay in the securing of witnesses and documents, Defense
Counsel shall . . .” and then follow the remaining contents of the
ruling.
I am of the opinion, My Lords, that the question as to whether a
document has relevancy or not can only be decided when I have this
document in my own hands; in other words, when I am familiar with the
precise contents of that document. It is impossible in a summary
proceeding such as is now being attempted, in which the admissibility of
whole books is supposed to be decided on, to pass appropriate judgment
as to whether a particular passage in a document has relevancy or not.
This question can be decided clearly and definitely only if the
Prosecution and the Court as well have the document in their hands in
the form in which the Defense wishes to submit it. I am convinced . . .
THE PRESIDENT: But, Dr. Seidl, I have stated twice this morning that the
question of the final admissibility, whether of witnesses as evidence,
or documentary evidence, can only be finally decided when the document
is actually put in or when the witness is actually asked a question.
What we are now considering is whether the document has any possibility
of relevance and must, therefore, be searched for, if necessary, or sent
for.
DR. SEIDL: Yes. If I understand you correctly, Mr. President, it is not
necessary . . .
THE PRESIDENT: Dr. Seidl, the Tribunal thinks that you had better deal
with your witnesses and documents now, and we do not desire to hear any
further general arguments on the subject. We desire to hear you upon the
documents and the witnesses which you wish to call and produce.
DR. SEIDL: It is, then, a question of the documents I already have in my
possession and not of the documents which I wish to obtain.
THE PRESIDENT: Yes, the documents which you are about to mention.
DR. SEIDL: It is a question of all the documents, and not simply the
documents that must first be procured.
THE PRESIDENT: Well, we have before us your application for certain
witnesses and certain documents, and we wish to hear you upon that
application.
DR. SEIDL: Very well, but I must draw up a list by next Wednesday for
the Defendant Frank, and I should like to know whether those documents
should be brought up which I already have in my hands.
THE PRESIDENT: Well, first of all you had better deal with your
witnesses in the same way that Dr. Stahmer did.
DR. SEIDL: The first witness that I intend to hear is Fräulein Ingeborg
Berg, a former secretary to the Defendant Rudolf Hess.
SIR DAVID MAXWELL-FYFE: My Lord, I have not seen this list until a
moment ago.
THE PRESIDENT: The witness he wants to call is Ingeborg Berg; is that
right?
SIR DAVID MAXWELL-FYFE: If Dr. Seidl tells me that this lady was a
private secretary to Hess, it seems to me, _prime facie_, reasonable
that there was a chance of discussing the matter. As a general rule it
seems to me reasonable that a private secretary should be called who can
corroborate the matters with which the defendant was dealing. I do not
think any of my colleagues will disagree with that point.
DR. SEIDL: My second witness is the previous Gauleiter and head of the
Auslands-Organisation of the NSDAP, Ernst Bohle, who is imprisoned here
on remand.
THE PRESIDENT: Dr. Seidl, you have not really adopted the procedure
which the Tribunal asked you to adopt. You have not specified the
relevance of the evidence which you wish to produce. You have referred
to some previous application. The Tribunal has not got all these
applications before it at the moment, and therefore we wish to know in
what respect the evidence of Ingeborg Berg is relevant.
DR. SEIDL: The witness Ingeborg Berg was the secretary of the Defendant
Hess at his liaison offices in Berlin. She is to make statements
regarding the time Hess began making preparations for his flight to
England, and what sort of preparations they were.
She is further to testify as to what Hess’s attitude was toward the
Jewish question in a particular case, namely, in connection with the
Jewish pogrom of 8 November 1938.
THE PRESIDENT: Is she in Nuremberg?
DR. SEIDL: She is here, in Nuremberg.
THE PRESIDENT: You may deal with the second witness now, if you like.
DR. SEIDL: The second witness is the previous Gauleiter of the
Auslands-Organisation of the NSDAP, Ernst Bohle. He is imprisoned on
remand in Nuremberg. He is to testify whether the Auslands-Organisation
developed any activity which might make it appear to be a Fifth Column.
SIR DAVID MAXWELL-FYFE: On the second witness, that is one of our
allegations against the Auslands-Organisation, and therefore it does
seem relevant. I make no objection.
DR. SEIDL: Walter Schellenberg is the third witness I mention. Whether I
shall be able to uphold his application I can only judge after the Court
has given me the opportunity to speak to this witness who is here in
Nuremberg. I do not know whether the witness can give pertinent evidence
concerning the time in question, prior to 10 May 1941. I should like to
avoid occupying the time of the Tribunal with the hearing of a witness
whose hearing proves that he cannot offer pertinent evidence. I
consequently ask the Tribunal first of all for permission to speak to
this witness for the purpose of getting information.
THE PRESIDENT: Do you have anything to say about that, Sir David?
SIR DAVID MAXWELL-FYFE: I understand that this is the witness
Schellenberg who was called for the Prosecution.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: I submit that it would be very undesirable to
have private conversations with witnesses before cross-examination. If
Dr. Seidl wishes to cross-examine the witness Schellenberg further, then
he ought to apply to the Court to cross-examine him in open court.
THE PRESIDENT: Well, I think I remember that some of the defendants’
counsel asked to postpone the further cross-examination of Dr.
Schellenberg.
SIR DAVID MAXWELL-FYFE: My Lord, my objection is not to the further
cross-examination; that is a matter, of course, which is entirely for
the Court once a witness is in its hands. But my recollection is that
Dr. Merkel and Dr. Kauffmann also wanted to cross-examine the witness
further, and therefore I submit that, both generally and on this
particular occasion, it would be very undesirable for any counsel who is
going to cross-examine to have a private conversation with the witness
before he cross-examines. That is the matter to which I object.
THE PRESIDENT: Yes, but if the defendants’ counsel finally decide that
they are not going to cross-examine the witness, I suppose then they
would be able to examine him in chief if they wanted to do so, to call
him.
SIR DAVID MAXWELL-FYFE: Well, I have never heard, My Lord, of that
procedure being adopted. If a witness is called by one side, then the
other side must, in my respectful submission, do what they can by way of
cross-examination. The witness is before the Court and, as the
Prosecution have called the witness, then I submit that the Defense
should deal with the witness by way of cross-examination. They have the
additional rights which cross-examination gives, which is a compensation
for the other rights which they would have if he were their own witness.
DR. SEIDL: Perhaps we might find a solution whereby I would renounce the
right to cross-examination, and if the witness could actually say
something pertinent, I could let him give me an affidavit. I do not
believe that the Prosecution would object to that.
THE PRESIDENT: Sir David, as there are no technical rules of evidence
applicable to this Trial, would it be objectionable, would you say, if
the Defense were permitted to see Schellenberg in the presence of a
representative of the Prosecution, if that is satisfactory to them?
SIR DAVID MAXWELL-FYFE: I am sure the Prosecution all desire that only
the interest of justice should be furthered, and if the Tribunal
consider that that would be a suitable method of dealing with it, the
Prosecution would raise no objection.
THE PRESIDENT: Unless you wish to say something further about
Schellenberg, the Tribunal will consider your application.
DR. SEIDL: Very well.
THE PRESIDENT: Have you any other witnesses that you wish to refer to?
DR. SEIDL: For the time being, no. However, according to the resolution
of 18 February, every Defense Counsel has the right, until the
conclusion of the Trial, to ask permission to call further witnesses.
THE PRESIDENT: I think now is the time for you to apply; in accordance
with the order of the Tribunal to which you are referring, this is the
time at which you are to apply for any witnesses you want. The Tribunal
always has the discretion, which it would exercise, if you prefer to
make any further applications. If later you want to ask for further
witnesses, the Tribunal will always consider your application.
Did you get that?
DR. SEIDL: Yes, Mr. President.
As to the question of whether the Auslands-Organisation, the Volksbund
für das Deutschtum im Ausland, and the Bund Deutscher Osten had anything
to do with the activities of a Fifth Column, a further witness who would
come into question is the brother of the Defendant Rudolf Hess, Alfred
Hess, who was formerly a deputy Gauleiter of the Auslands-Organisation,
and is at present in Mergentheim in an internment camp.
THE PRESIDENT: Well, we have not got your application in front of us
with reference to that. If you want to make any further application you
may do so.
DR. SEIDL: I have made the application.
THE PRESIDENT: You say you want to make it now?
DR. SEIDL: If it is possible I should like to make the application now,
since the Tribunal has asked me to speak. I am, of course, prepared to
submit that application in writing later.
THE PRESIDENT: The Tribunal will hear you now, then, upon this
application, and you can put the application in writing afterwards as a
matter of record.
DR. SEIDL: Very well.
THE PRESIDENT: What was the name?
DR. SEIDL: Hess, Alfred. His last official position was Deputy Gauleiter
of the Auslands-Organisation of the NSDAP. At present he is in the
internment camp in Mergentheim.
THE PRESIDENT: Yes? For what purpose? You said because he was going to
speak as to Fifth Column activities; was that it?
DR. SEIDL: Regarding the Fifth Column and regarding the question of
whether the Auslands-Organisation of the NSDAP and the Volksbund für das
Deutschtum im Ausland and the Bund Deutscher Osten have anything to do
with a Fifth Column or not.
THE PRESIDENT: Sir David?
SIR DAVID MAXWELL-FYFE: My Lord, I have already conceded that this is a
relevant issue, and therefore the only question is cumulation. The
Defendant Hess will himself be able to speak on this point, and the
witness further if the Tribunal allows it.
The Tribunal might well consider, in my submission, that an affidavit or
interrogatories from a third witness on the point would be sufficient at
the moment, unless any further issue is disclosed, in which case Dr.
Seidl could summon the witness.
THE PRESIDENT: Well, now, you can pass on to your documents.
DR. SEIDL: Very well. It is my intention first to read further passages
from individual documents in Rudolf Hess’s document book which was
submitted by the Prosecution in order to establish the connection. A
further justification of the relevance of these documents would be
superfluous, since it is entirely a question of documents submitted by
the Prosecution which have already been accepted in evidence by the
Court.
SIR DAVID MAXWELL-FYFE: My Lord, the application is in this form:
“I intend to read pages from the following books: _Rudolf Hess’s
Speeches_; _Directives of the Deputy of the Führer_. The
relevancy of these documents can be inferred simply from the
fact that both have already been introduced in evidence by the
Prosecution.”
Insofar as the documents are documents already before the Tribunal, of
course, Dr. Seidl may, within the usual limits, comment on them as much
as he likes. If he intends to put in other speeches and directives,
documents of the same class, then the Prosecution asks that he indicate
which speeches and which directives he is going to put in.
DR. SEIDL: What Sir David Maxwell-Fyfe just read was the second point of
my application. It is true that I also intend to read certain passages
from the book, _Rudolf Hess’s Speeches_, and also from the book
_Directives of the Deputy of the Führer_. But since the Prosecution has
already submitted passages from both these books in evidence, which were
likewise already accepted as evidence, I believe I may say that there
are at least passages in these books—and that it is here a question of
documents—that are most certainly relevant. Whether those passages that
I intend to read are relevant or not can be decided only when I submit
these documents and this is exactly what I meant at the beginning of my
remarks, that it is possible to decide on the relevancy of a document
only when one has that document before one and knows its precise
contents.
SIR DAVID MAXWELL-FYFE: I hope Dr. Seidl will realize that this is
largely a matter of mechanics. If he is going to introduce new speeches
and new directives, they have got to be translated into English,
Russian, and French; and therefore it will be necessary, for the general
progress of the Trial, that he should indicate which passages he is
going to put in so that they can be translated as well as considered.
I am sure that Dr. Seidl will desire to use only relevant passages.
Naturally, every politician makes many speeches on many subjects, and
some of Hess’s speeches may well not be relevant.
I suggest that it is not unreasonable; we are only trying to help along
the general progress of the Trial by the request that I have made.
DR. SEIDL: Of course, Mr. President, I shall read only those passages
from the speeches, and few of them at that, which are relevant. I have
no intention of having whole sections of the book translated if it is
not necessary. I declare formally to the Tribunal that neither as
counsel for the Defendant Hess nor as counsel for the Defendant Frank
shall I submit one single document that could not be considered as
relevant.
THE PRESIDENT: Yes, but what Sir David was saying was that for the
mechanics of the Trial, owing to the unfortunate fact that we do not all
understand German, it is necessary that these documents which are in
German should be translated. Therefore, it is necessary for you to
specify which speech and which part of the speech you propose to rely
upon, and then it will be translated.
DR. SEIDL: Mr. President, I shall incorporate every single passage that
I intend to read in a document book, and I shall, in good time, submit
to the Court and to the Prosecution every passage from a speech which I
intend to read, in a document book. It is not the task of the
Prosecution, nor of the General Secretary, to do work which, of course,
I shall attend to.
SIR DAVID MAXWELL-FYFE: My Lord, that is quite all right. That is
exactly the point that I was seeking to make.
THE PRESIDENT: Very well, now you are coming to Paragraph 3.
DR. SEIDL: Yes. Thirdly, I shall read passages from the report of the
conference between the Defendant Rudolf Hess and Lord Byron, who at that
time, as I recall, was Lord Privy Seal, and which took place on 9 June
1941. In this way the motives and aims which caused the Defendant Hess’s
flight to England are to be clarified. The relevancy is derived directly
from the fact that the Prosecution has, for its part, submitted as
evidence the reports of Mr. Kirkpatrick concerning his conference with
Hess.
SIR DAVID MAXWELL-FYFE: If Dr. Seidl thinks that that conversation adds
anything to the conversations with the Duke of Hamilton and Mr.
Kirkpatrick, I shall not object to his reading the report.
THE PRESIDENT: Where is the document?
DR. SEIDL: It is in my possession.
THE PRESIDENT: What is the nature of the document? I mean, what
authenticity has it? Who made it? Who wrote it?
DR. SEIDL: The document was found among the papers of the Defendant Hess
which were given to him when he was brought from England to Germany. It
is a copy of the original, that is to say a carbon copy, and a series of
official stamps prove beyond doubt that it is the carbon copy of an
original.
THE PRESIDENT: The Tribunal would like to see the document.
DR. SEIDL: Very well.
THE PRESIDENT: If you would let us have the document, we will consider
it.
DR. SEIDL: Very well.
THE PRESIDENT: Have you finished your presentation?
DR. SEIDL: Yes.
THE PRESIDENT: Then there is a letter, isn’t there? There are two other
documents referred to, but you are not asking us for those? A document
of a letter to Hitler on the Reich Cabinet, dated 10 May 1941?
DR. SEIDL: This application appears to have been made by my predecessor,
by the lawyer Dr. Rohrscheidt. I should like to have an opportunity of
examining the relevancy of this point.
THE PRESIDENT: Very well. Do you wish to say anything, Sir David, about
them?
SIR DAVID MAXWELL-FYFE: We have not got that document. The Prosecution
have not got the letter that the Defendant Hess sent to Hitler, and we
just simply cannot help on that point.
THE PRESIDENT: Very well. If that document can be located, it shall be
submitted to you.
DR. SEIDL: Very well.
THE PRESIDENT: Now, Dr. Horn.
DR. HORN: It is my intention to call as the first witness for the
Defendant Ribbentrop the former Ambassador Friedrich Gaus, at present in
a camp at Minden near Hanover. Ambassador Gaus was for more than three
decades the head of the legal department of the German Foreign Office. I
believe that this witness is necessary in view of this function alone.
SIR DAVID MAXWELL-FYFE: If Dr. Horn would carry out the same procedure
as Dr. Stahmer and pause for a moment when he has introduced the
witness, I shall then be able to indicate in the same way whether there
is any objection.
Dr. HORN: Certainly.
SIR DAVID MAXWELL-FYFE: As far as Herr Gaus is concerned, there is no
objection, subject to one point on what I may call the Foreign Office
group of witnesses; and I think it will be convenient if I develop it
now, and then Dr. Horn would deal with the point in one moment.
Dr. Horn is asking for Herr Gaus, Miss Blank, who was the defendant’s
private secretary, and then witnesses 3 to 7, five Foreign Office
officials, Herr Von Sonnleitner, Herr Von Rintelen, Gottfriedsen,
Hilger, and Bruns.
The position at the moment is that there is some doubt as to whether
Miss Blank was allowed or not by the Tribunal, and two of the witnesses,
Von Sonnleitner and Bruns were granted on 5 December. Von Sonnleitner
was granted as one of two and Herr Bruns was granted _simpliciter_.
The Prosecution draws the attention of the Tribunal to the fact that no
special facts are stated as to which of these witnesses will speak, and
at the present moment, the applications are not within the Rule of
Procedure 4 (a), but what the Prosecution suggests is this:
That it is reasonable that the defendant should have certain witnesses
who will speak as to Foreign Office business and activities, but they
suggest that if he has Herr Gaus and his private secretary, Miss Blank,
that one other Foreign Office official to speak as to general methods
would be sufficient, and Von Sonnleitner is obviously the sort of person
who could help the defendant on general Foreign Office matters. They
suggest that to call seven witnesses to deal with his general position
in the business would be unduly cumulative, and they suggest that three
is sufficient.
I hope the Tribunal will not mind my dealing with the seven witnesses,
but really my point involves the number of them.
DR. HORN: May I say something in reply to that? Dr. Gaus, in all
probability, will be my main witness for the Defense. Therefore, since
10 November 1945, I and my predecessor have done everything to find this
witness, and after that had been accomplished, to bring him here. I know
that the witness, although he has now been located, is not here.
Consequently, I do not know on what matters he can give us rebutting
evidence. For this reason I would also prefer not to commit myself yet
as to the other witnesses from the Foreign Office. I would like to demur
only to the following extent: The witnesses who have been listed in
addition, these additional witnesses of the Foreign Office, are not
witnesses who are to give testimony on routine questions, as Sir David
expressed himself, about general affairs of the Foreign Office; but they
are witnesses who can offer rebutting evidence concerning special topics
which the Prosecution has brought up.
I consequently suggest that a final decision should be reached as to the
calling of these other witnesses only after Ambassador Von Gaus is here.
In connection with this statement, I should like to ask the Court again
personally to assist me in the securing of this extraordinarily valuable
witness because I can submit my rebutting evidence in writing to the
General Secretary in time only if I have him here soon.
THE PRESIDENT: Yes. Well, we will consider that. That deals with 1 to 7,
does it not?
DR. HORN: Mr. President, may I remark that I should like to omit Witness
Number 2, Fräulein Margarete Blank. Consequently not 2 to 7, but 3 to 7.
May I make the following explanation: Fräulein Blank was for many years
secretary to the former Minister of Foreign Affairs, Von Ribbentrop,
specifically since 1933. The witness Blank drew up a whole series of
decisive sketches and memoranda and also discussed decisive points with
Ribbentrop in connection with these manuscripts. Thereby I mean
memoranda which expressly relate to the charges, and I therefore ask
that the Tribunal’s original decision, which granted us this witness, be
upheld.
THE PRESIDENT: Then you are asking, are you, that Ambassador Gaus and
Fräulein Blank should be brought here as soon as possible, and that the
consideration of the other witnesses 3 to 7, should be deferred until
you have had an opportunity of seeing Gaus and Blank?
DR. HORN: Yes, Mr. President. As regards Fräulein Blank, I can say that
she is in an internment camp near Nuremberg, in Hersbruck.
THE PRESIDENT: Did you mean that Fräulein Blank was in a camp so near
Nuremberg that you could go and visit her and speak to her there?
DR. HORN: Yes, Mr. President, that is possible.
THE PRESIDENT: Very well.
DR. HORN: May I interpret this as an authorization to visit Fräulein
Blank in order to interrogate her?
THE PRESIDENT: We understand that that is your application, and we will
consider it.
DR. HORN: Thank you, Mr. President.
As my next witness I name the former SS Gruppenführer and personal
adjutant to Hitler, at present in Nuremberg in solitary confinement.
THE PRESIDENT: Yes, Sir David?
SIR DAVID MAXWELL-FYFE: With regard to this witness, the application
says that there was a decisive conference between Hitler and the
Defendant Von Ribbentrop, and that he can speak as to certain things
that occurred. If that is so, if he can speak as one attending the
conference, the Prosecution have no objections.
They object—and this point will arise in regard to a number of
witnesses—to what I call self-created evidence. That is, if a witness
is merely coming to say that the defendant said that he had certain
views, that, in the submission of the Prosecution, does not carry the
thing any further. If I understand, this witness is speaking as an
observer of the conference, and, as such, we take no objection.
DR. HORN: I should like to give Sir David my assurance that this is a
witness who has first-hand knowledge of decisive events and can give
such testimony.
My next witness is Adolph Von Steengracht, since 1943 Secretary of the
German Foreign Office. This witness is now in Nuremberg in solitary
confinement.
SIR DAVID MAXWELL-FYFE: If the Tribunal would be good enough to look at
the seventh line from the foot of this application, it says that
Steengracht will further testify that, contrary to the assertions of the
Chief Prosecutor of the United States, the protests of the churches and
of the Vatican were always processed, thus obviating even worse
excesses.
If it is meant by that—and the English is a little obscure—that the
Defendant Ribbentrop sent forward the protests of the churches to
Hitler, then the Prosecution would feel that they ought not to object to
the witness.
DR. HORN: I can say in regard to this, Mr. President, that these
protests were submitted not only to Hitler, but that furthermore, on the
initiative and orders of the defendant, other German offices involved in
these breaches of international law were approached for the purpose of
settling the difficulties arising from the protests of the churches and
the Vatican.
THE PRESIDENT: Very well. Can we go on to 10?
DR. HORN: My witness Number 10 is Dahlerus. Mr. Dahlerus has already
been discussed at length today, and I should like to know whether
further discussion as to procurement of this witness is necessary.
SIR DAVID MAXWELL-FYFE: I have already put my general position with
regard to Dahlerus. Apparently this defendant wants him on one
particular point, namely, an order from Hitler; and I submit that the
appropriate way would be if Dr. Horn added an interrogatory on that
point.
_Prima facie_, it seems highly improbable that Hitler communicated his
private order to a Swedish engineer, but in view of the fact that
interrogatories have been ordered, I suggest that Dr. Horn can send a
further interrogatory on that point.
DR. HORN: Mr. President, may I make a remark in this connection? It is
not, as was translated, a question in this case of a command of Hitler,
but a question of the decisive note that was the beginning of the second
World War.
SIR DAVID MAXWELL-FYFE: My position goes into a great deal of these
requests. This is only evidence if Herr Dahlerus can say what Hitler
said, what Hitler told him. It is not evidence if Herr Dahlerus can say,
“Herr Ribbentrop told me that Hitler had so ordered.” That does not add
to the evidence of the defendant himself.
Therefore, I think it is essential that before one can judge of the
evidential value at all, the matter should be submitted, as I suggest,
by way of interrogatory.
THE PRESIDENT: Dr. Horn, unless you have anything further to add with
reference to this witness, we will stop at this point, because we think
it is impossible to go further today, and apparently it is impossible to
finish the whole of your application this afternoon, so do you wish to
add anything more about Dahlerus?
DR. HORN: Yes, I should like to make another short statement in answer
to what Sir David considers as decisive for the evidence. Mr. Dahlerus
will not say here what he heard from Ribbentrop; he will testify to what
he heard about Ribbentrop from an important person and from Hitler
himself, and that is why I consider him as particularly decisive.
SIR DAVID MAXWELL-FYFE: A general point, My Lord, in the case of the
witnesses who are asked for by Dr. Horn; I had prepared the comments of
the Prosecution, and they have been typed out in English. The Tribunal
will realize that we received this application only yesterday, and it
had to be translated and is not ready by today.
I have not been able to get this translation, but I have given Dr. Horn
a copy quite informally so that he would be informed; and it might be
useful if I handed it in because it might shorten the proceedings and
also act as a record when the Tribunal resumes the consideration of
these points. I do not know if that appeals to the Tribunal.
THE PRESIDENT: Yes, very well. Then we will adjourn now.
I want to ask the Soviet Chief Prosecutor whether it would be convenient
to the Soviet Prosecution that we should continue on Monday morning with
this examination of witnesses and evidence. I think it will probably
take the whole of the morning if we deal with the Defendant Ribbentrop’s
applications and then the Defendant Keitel’s, so that the Soviet
Prosecution, if that course were adopted, would come on at 2 o’clock.
Would that be convenient for them?
GEN. RUDENKO: If it is convenient for the Tribunal it will be so for us,
Mr. President.
THE PRESIDENT: There is just one other point I should like to ask you. I
think the Tribunal were notified that there were two witnesses the
Soviet Prosecution proposed to call. I think that we said that the
General Warlimont and, I think, General Halder, ought to be called so as
to give the Defense Counsel the opportunity of cross-examining them.
GEN. RUDENKO: If the Tribunal so wishes I shall report on this question.
I became acquainted with the transcript of the reports made by General
Zorya and Colonel Pokrovsky when the question concerning witnesses
Halder and Warlimont was discussed. The Soviet Delegation consider there
to be no basis for objections to the Court examining the witnesses
Generals Warlimont and Halder, at the request of the Defense. But the
Soviet Prosecution intended to request that the Tribunal submit these
witnesses as witnesses on behalf of the Soviet Prosecution.
I should like once again to report about the plan which the Soviet
Prosecution has in mind regarding the conclusion of the presentation of
evidence. There remains for us to present to the Tribunal the last
section, “Crimes against Humanity.” The presentation of this will take
approximately 3 to 4 hours.
In addition, we shall ask the Tribunal to permit us to interrogate,
episode by episode, four witnesses, Soviet citizens who have been
specially brought and now are in Nuremberg. In such a way we consider
that if we start our presentation tomorrow at 2 o’clock, then on Tuesday
we will finish our presentation on all counts.
THE PRESIDENT: The Tribunal will expect to have General Warlimont and
Halder presented here before the Soviet case finishes, not for the
Soviet Prosecution to ask them questions but for them to be
cross-examined by the Defense if the Defense want to, but that may take
place at any time that is convenient to you. If you wish, they could be
called at 2 o’clock on Monday; if you prefer, at the end of the Soviet
presentation, either on Tuesday afternoon or on Wednesday morning,
whichever is convenient to you.
GEN. RUDENKO: As I already stated, the Soviet Prosecution did not think
of introducing either Halder or Warlimont. The Soviet Prosecution did
not object that, on the request of the Defense Counsel, Halder and
Warlimont be subjected to cross-examination. As far as I know, as far
back as last December, the Tribunal granted the application of the
Defense to call Halder into court as a witness.
Therefore it seems to me, and in order to expedite the exposition of
material of the Soviet Prosecution, this really will not influence the
examination of essential questions, that the examination of the
witnesses Warlimont and Halder be made in the Trial during the
presentation of evidence by Defense Counsel.
As far as I know, in the application of the Defendant Keitel, which was
presented to the Tribunal, Halder and Warlimont are indicated as
witnesses, and the Defendant Keitel and his attorney applied for
examination of them as witnesses on behalf of the Defense.
On the basis of this, I consider that the examination of these witnesses
should be made during the presentation of evidence by the Defense
Counsel.
THE PRESIDENT: The Tribunal understands that both General Warlimont and
General Halder are here in Nuremberg. Is that so?
GEN. RUDENKO: Yes.
THE PRESIDENT: Probably the most convenient course would be for the
Tribunal to see exactly what order the Tribunal made with reference to
their being called. We will look up the shorthand notes and see exactly
what order we made and deal with the matter on Monday morning.
In the meantime, on Monday morning we will continue, as you said is
convenient to you, the applications by Dr. Horn for the Defendant
Ribbentrop and the applications by Dr. Nelte on behalf of the Defendant
Keitel; and we shall sit from 2 until 4 o’clock only on Monday
afternoon.
[_The Tribunal adjourned until 25 February 1946 at 1000 hours._]
SIXTY-SEVENTH DAY
Monday, 25 February 1946
_Morning Session_
THE PRESIDENT: Dr. Horn, you dealt with Dahlerus last, I believe.
DR. HORN: That is right, Mr. President.
As the next witness, I ask the Tribunal to call General Koestring,
former military attaché at Moscow, and at present in prison in
Nuremberg. In this case I am willing to forego the personal appearance
of the witness if the submission of affidavit will be permitted.
SIR DAVID MAXWELL-FYFE: My Lord, we object to this witness and so Dr.
Horn can develop it as far as he desires.
THE PRESIDENT: You object to him?
SIR DAVID MAXWELL-FYFE: We object.
THE PRESIDENT: Go on.
DR. HORN: I wish nevertheless, to ask the Tribunal to call the witness
in this case.
Originally, there was a possibility, as I was told, that the witness
might be called by the Prosecution. Since this has not taken place, I
ask that this witness be approved because he took part in the
German-Russian negotiations from August to September 1939 at Moscow and,
until the beginning of hostilities against the Soviet Union, remained at
that post. The witness, therefore, can tell us about the attitude of
authoritative German circles and personalities toward the German-Russian
pact. For these reasons I ask the Tribunal to call the witness.
GEN. RUDENKO: As it has already been stated by Sir David Maxwell-Fyfe,
the Prosecution objects to the summoning of this witness. I merely wish
to define the position of the Prosecution in this case. The fact that
the witness participated or was present at the August-September 1939
negotiations is scarcely of interest to the Tribunal. The Tribunal
primarily proceeds from the fact of the existence of this agreement and
its treacherous violation by Germany. Consequently, the summoning of
this witness to describe these negotiations would merely delay the
course of the Trial.
DR. HORN: Mr. President, I am sorry, I was not able to understand the
answer and the reasoning of the General.
THE PRESIDENT: Would you repeat, General?
GEN. RUDENKO: Very well. I was saying, with reference to Sir David’s
protest, on behalf of the Prosecution, against the summoning of this
witness, that I wished to explain that the summoning of this witness in
regard to his presence at the 1939 negotiations at Moscow was of no
interest whatsoever to the Tribunal. The Tribunal proceeds from the
facts that this agreement had been concluded in 1939 and had been
treacherously violated by Germany.
I consider that the summoning of this witness before the Tribunal is
superfluous since the witness in question has no connection whatsoever
with the present case.
DR. HORN: I ask the Tribunal’s permission to point out that for weeks
General Koestring was in prison in Nuremberg at the disposal of the
Prosecution. Therefore, I ask the Tribunal to grant him a hearing as a
witness for the reasons which I have mentioned.
THE PRESIDENT: The Tribunal will consider the matter. Dr. Horn, the
Tribunal does not understand the fact that General Koestring is in
prison at Nuremberg is any answer to the objection which is made on
behalf of the Prosecution, namely, that the Tribunal is not interested
in negotiations which took place in September 1939, but in the violation
of the treaty. The Tribunal would like to know whether you have any
answer to make to that objection? The only answer you have made up to
date is that General Koestring is here in Nuremberg.
DR. HORN: Mr. President, General Koestring is to testify that the pact
with Russia was drawn up with full intention of its being kept on the
part of Germany and on the part of my client.
I would not like to say anything further on this point at the moment and
I ask the Court to call the witness on the basis of this reason.
THE PRESIDENT: Very well, the Tribunal will consider your request.
DR. HORN: The next witness is legation councillor for reports, Dr.
Hesse, who was formerly in the Foreign Office in Berlin and now
presumably is in the camp at Augsburg.
SIR DAVID MAXWELL-FYFE: My Lord, there is no objection to this witness.
I do not know if Dr. Horn wants him in person or if an affidavit would
do. The Prosecution do not feel strongly on the matter but they ask Dr.
Horn whenever possible to accept an affidavit and they suggest that he
might consider it in this case.
DR. HORN: In this case I will be satisfied with an affidavit.
The next witness is the former ambassador in Bucharest, Fabricius,
presumably in Allied custody in the American zone of occupation or
possibly already discharged from custody.
SIR DAVID MAXWELL-FYFE: There is no objection in this case. Apparently
this witness will speak as to an interview which is already in evidence
before the Court and will give a different account of it. Prosecution
makes no objection under the circumstances.
THE PRESIDENT: The Tribunal will consider that.
DR. HORN: The next witness is Professor Karl Burckhardt, President of
the International Red Cross in Geneva and formerly League of Nations
Commissioner at Danzig.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Burckhardt is
obviously in a very special position. As President of the International
Red Cross he is a person to whom all belligerents, irrespective of
country, are indebted; and the point that the Prosecution makes is that
if he can speak of evidence coming from Hitler himself, that is if he
can prove either by saying that he was informed by Hitler that the
Defendant Ribbentrop had interceded; or if he can say he saw letters
received by Hitler from Ribbentrop, the Prosecution would have no
objection. If he is merely going to say that Ribbentrop told him so, the
Prosecution would object.
Therefore, we submit that the reasonable course would be that he should
make an affidavit as to his means of knowledge, and if that is done and
if the means of knowledge are satisfactory, I should not think for a
moment that the Prosecution would do anything but accept the evidence of
Dr. Burckhardt.
The second point, we submit, is irrelevant: the question of the results
of the English promises of guarantee to Poland on the position in
Danzig.
DR. HORN: Aside from the reasons which I have already submitted in my
application, I can also say that Professor Burckhardt visited Ribbentrop
and Hitler in the year 1943 and therefore can make detailed statements
with reference to the reasons which I have mentioned for calling him.
That answers the first question by Sir David.
I also agree, however, in this case that Professor Burckhardt submit the
necessary affidavit and thus be spared a personal examination.
The next witness is the Swiss Ambassador Feldscher, who was finally, to
our knowledge, Ambassador at Berlin.
SIR DAVID MAXWELL-FYFE: I suggest, My Lord, that he comes into the same
position as Dr. Burckhardt. He should be dealt with in the same way.
DR. HORN: I agree, Mr. President. The next witness is the former Prime
Minister of Great Britain, Mr. Winston Churchill.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Prosecution
objects to this application and, with the greatest respect to Dr. Horn,
submits that there are no relevant reasons disclosed in the application
now before the Tribunal. The first part of it is apparently an account
of a conversation which does not touch the facts of this case, and the
second part is also a discussion of a conversation which apparently took
place some years before the war, between the German Ambassador and a
gentleman who at that time was in no official position in England. But
what relevancy the conversation has to any of the issues in this case
the Prosecution respectfully submits is not only nonapparent but
nonexistent.
DR. HORN: Against this statement of Sir David, I want first to point out
the following:
Prime Minister Winston Churchill was at that time Leader of His
Majesty’s Opposition in Parliament. In this capacity we may attribute to
him a sort of official position, particularly since he, to my knowledge,
as Leader of the Opposition is even paid a salary.
SIR DAVID MAXWELL-FYFE: I am sure that Dr. Horn would be the last person
to rely on a point on which he has been misinformed.
Mr. Churchill was not Leader of His Majesty’s Opposition at any period
and was certainly not from 1936 to 1938, when the Defendant Ribbentrop
was ambassador. Mr. Attlee was the Leader of the Opposition. Mr.
Churchill was not in office; was a back-bench member of the Conservative
Party, independent member of the Conservative Party at that time.