SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Exner and
Professor Jahrreiss were good enough to approach the Prosecution on this
matter and put forward certain considerations, including the names of
the witnesses to whom they attached the greatest importance, and over a
considerable part of the field there is no difference between us. On
certain matters there is a difference of principle, which I shall point
out to the Tribunal in a moment, but the effect is, if I might run
through the application, that the Prosecution will not offer any
objections to General Winter, who speaks as to the organization of the
OKW and the respective duties of the Defendants Keitel and Jodl. They
will not offer objections to Major Professor Schramm, although the need
for his evidence is perhaps not so obvious. On the other hand, with
regard to Number 3, the evidence of Major Kipp, that the fettering or
chaining of prisoners took place at Dieppe and as to the cause of the
shooting-of-Commandos order, the Prosecution submit that these matters
are irrelevant. With regard to Major Büchs, Dr. Exner tells me that he
will be satisfied with interrogatories. The Prosecution do not object.
With regard to Number 5, General Von Buttlar, Professor Exner suggests
that he should be a witness, and the Prosecution do not object.
With regard to Number 6, the Prosecution are content that there should
be interrogatories.
With regard to Vice Admiral Bürckner, the Prosecution are prepared to
take no objection.
Then with regard to Number 8, General Buhle, a questionnaire has been
sent off.
With regard to Number 9, it is suggested that there should be
interrogatories.
Number 10, interrogatories.
With reference to Numbers 11 to 21, the Tribunal has allowed an
interrogation in each case, and in many cases a questionnaire has been
sent off, and therefore the Prosecution could not object at this stage
when action has been taken on the Tribunal’s suggestion. That would mean
that the Defendant Jodl would have four oral witnesses, apart from the
interrogatories which have already been largely approved by the
Tribunal. The objection of the Prosecution to Number 3 is maintained.
DR. EXNER: I should like, first of all, to mention Number 3, Kipp. The
Prosecution have its objections to this witness. We need him to give
information as to how the Hitler order of 18 October 1942, that is, the
Hitler order regarding Commandos, originated. This order has been made
the basis of a highly incriminating charge against Jodl and it is of
great importance to hear how this order came to be given. It concerns
the killing of Commandos dropped by planes or landed from boats. As I
understand it, the objection to this witness and this subject generally
is that it appears to concern for the most part the events of Dieppe, in
consequence of which this order was admittedly issued. But we are not
concerned with an exact portrayal of what actually happened at Dieppe.
The witness Kipp is, in any case, unable to do so, since he was in the
OKW and was not a witness of those events. We are concerned with
something else, namely, the fact that certain reports were presented to
the OKW which caused this order to be made. We are furthermore concerned
with the following facts to which Kipp is in a position to testify.
When these reports about the events at Dieppe arrived, the Führer was
enraged and ordered strict measures to be taken against these Commandos.
Jodl refused to issue or draft the order as demanded by the Führer. When
pressed, he said he did not know what reason he could give for that
order.
Jodl then passed the matter to Major Kipp for investigation, as it was
peculiarly complicated from a legal point of view and Kipp, being a
professor of law, should know something about legal matters.
In addition, a kind of poll was held in Jodl’s office in the Wehrmacht
Operations Staff and the opinions of other offices on the matter in
question were collected. Varying opinions were received from the Ausland
Abwehr, the legal department, et cetera. As in the meantime 10 days had
passed, Hitler lost patience, sat down and drew up the entire order
himself, as well as a further decree, establishing the reasons for the
order. Jodl, therefore, was not the author of this order. All that he
did was to express his doubts regarding it. The story of the origin of
the order of 28 October 1942, which, as I have said, has been made the
basis of a grave accusation against Jodl, is of the utmost importance.
Kipp will testify to it. Further, it has already been said that there is
no objection to witness Number 5, Buttlar.
As to Number 4, I am satisfied with an affidavit or an interrogatory,
but I must reserve the right to call him as a witness, should the
interrogatory be inadequate or not clear. I hope, however, that this can
be avoided.
Regarding witness Number 7, Vice Admiral Gottlieb Bürckner, I should
like to point out that he is the same Admiral Bürckner who was the
subject of discussion this morning in connection with the witnesses for
the Defendant Raeder. Perhaps that will clear up the difficulty about
Raeder.
Regarding Number 8, the interrogatory has already been sent out. We
have, however, distinctly, reserved the right to resort to oral
testimony should the interrogatory again prove unsatisfactory.
Otherwise, I have nothing further to say on the subject and the
Prosecution has no grounds for protest.
I have just received a note saying I was relying on the appearance of
Büchs as a witness and therefore why did I not ask for him. This is on
behalf of Göring, is it not? I shall have to leave the decision to the
Tribunal. I had in fact intended to call Büchs as a witness and I only
agreed to forego his personal appearance in the course of the
discussion.
THE PRESIDENT: Which witness were you talking about?
DR. EXNER: Witness Number 4.
THE PRESIDENT: Do you say you are asking for him as an oral witness?
DR. EXNER: Göring has also asked for him as a witness.
THE PRESIDENT: Has he been allowed to the Defendant Göring?
DR. EXNER: He had counted on my calling him as a witness, on his being
allowed and on being able to question him. He is here in Nuremberg. May
I now turn to the documents?
THE PRESIDENT: Yes.
DR. EXNER: Regarding Points 1 and 4, the Prosecution has no objections.
I take this to mean that I put into my document book an extract of the
part I read. I submit the entire document to the Tribunal without a
translation of anything except the part which I am going to read; and
which deals with an important point which must be clarified. If I am
dealing with a large document and I need to quote only one paragraph, it
is sufficient if I submit the original document to the Tribunal in its
entirety and include in my document book only the particular paragraph
in question and its translation.
THE PRESIDENT: That is right.
DR. EXNER: Regarding Points 5 and 6, the Prosecution objects and I
withdraw these two documents.
Point 7 is a curious one. That is Document Number 532-PS, submitted by
the Prosecution and to which I made objection at the time. The document
was removed from the record, and now I myself apply for this document to
be submitted again. This is for the following reason: The document is an
order that was submitted to Jodl in draft form. Jodl did not approve it,
crossed it out, and sent it back without signing it. This draft was
submitted by the Prosecution, and I objected to its being presented as
if it were actually an order signed by Jodl. I want to submit it now in
order to prove that Jodl, by making it impossible for this order to be
carried out, deprived an illegal order of its effectiveness.
Regarding Points 8 to 15, the Prosecution also has no objection.
SIR DAVID MAXWELL-FYFE: Points 16 and 17 are the subjects of objection
from the Prosecution. Point 16 relates to the English “Close Combat
Regulations” of the year 1942, and 17 is the English order for the
Operation Dieppe of the same year. With regard to the “Close Combat
Regulations,” the only relevance they could seem to have would be in
relation to an objection to this form of training, and in the submission
of the Prosecution it would be irrelevant on the question of the
Commando order.
With regard to the question of shackling, I think the simplest way of
dealing with it is to point out that the Prosecution, as my friend Mr.
Dodd pointed out, have not introduced that matter into their case, and
therefore it would appear that, the English order in question was not
relevant. Apart from the two general objections, neither of these
matters seems connected with points in the case.
I might just indicate Number 20, which is another objection that is on
the same basis as the old document, which I think the Tribunal has had
before—the implication of the German Foreign Office on breaches of
international law, and it is sought for, as the Tribunal will see, as
evidence of the reports that were made to the High Command of the
Wehrmacht, and that gave occasion to take reprisal measures.
Then a similar ground of objection applies to Number 21, a history of
the White Russian partisan war, which is sought for as evidence that the
danger of bandit warfare gave cause for undertaking sweeping
countermeasures.
These objections can be all grouped together. They fall under the
general objection to _tu quoque_ evidence which the Prosecution has
maintained throughout the Trial.
DR. EXNER: May I say something about this? As far as 16 and 17 are
concerned, we just want to see these documents. We want to see them
first in order to judge whether or not we want to submit them in
evidence. I have stated so at the foot of the page.
As to irrelevance, we do not say that we regard these orders as illegal.
But if for instance, in the “Close Combat Regulations,” English soldiers
are ordered to perform actions for which our soldiers are censured, it
would constitute a discrepancy of some importance. For in that case it
would be obvious that the British Government regarded such methods of
warfare as legitimate. If, however, such methods are legitimate for
them, they must also be legitimate in our case, since it is impossible
to have two standards in these matters. In order to establish this, we
wanted to see these “Close Combat Regulations.” That is Number 18.
Number 19 is a similar case, but I can more readily understand that that
was refused, as it may be a secret order. Number 20, the White Book. . .
THE PRESIDENT: Sir David did not deal with 19, did he? He only dealt
with 16, 17, 20, and 21.
DR. EXNER: Yes. 18 and 19 have not been objected to.
THE PRESIDENT: As I understood it, his objection to 16 and 17 was that
there was no complaint against the German forces, either with the
reference to close combat or with reference to shackling, in the
Indictment.
DR. EXNER: If these “Close Combat Regulations” should happen to include
illustrations—there are actually pictures in there—of the shackling of
prisoners and orders for doing so, one would be obliged to say that the
British Government does not consider this kind of treatment illegal and
that if it happens on our side we cannot be censured for it. It is
difficult for me to estimate their importance to us, because I have not
had these “Close Combat Regulations” in my own hands. If I had them, I
could make my application. I should like to know whether I have to
include them in my evidence or whether there is no need.
No objection has been raised to 18 and 19. As to 20, these are the White
Books already approved for Göring. Consequently, I need not ask for them
myself.
Regarding Point 21, I am convinced that this cannot be settled with a
charge of _tu quoque_. It is a Russian book, describing partisan
warfare. The author of this book is a Russian who, himself, participated
in partisan warfare for several years as chief of staff and he writes
from personal experience.
We do not assert that the Russians did the same as we did, which would
be a _tu quoque_ argument; I should like to have this book for another
reason. To understand and appreciate our regulations regarding
partisans, one must know these partisans. One must have knowledge and
experience of their methods, and be able to appreciate the danger which
they represented. This Russian book describes all that, and is therefore
important. The author himself, as stated, played an active part in the
warfare carried on against the partisans.
In the Indictment it is stated, “The war against the partisans was
simply an excuse for the annihilation of Jews, Slavs, and so on.” This
book shows that the war against the partisans was a real war and not an
excuse on our part.
If the book is unobtainable, I ask permission to read the short account
of the contents recently published in The Stars and Stripes. To
conclude, it should be emphasized that the book was written by a Soviet
Russian and for this reason cannot be assumed to have an anti-Russian
bias.
Therewith I have concluded my presentation.
THE PRESIDENT: Sir David, the Tribunal would like to know what your
argument is with reference to 21.
SIR DAVID MAXWELL-FYFE: I was opposing it for the reason that was given.
The book is asked for as evidence that the danger of bandit warfare gave
rise to undertaking sweeping countermeasures.
Now, broadly, the case for the Prosecution is that the countermeasures
against partisans constituted atrocities, and evidence of that kind has
been given. It is, in my submission, no defense to the committing of
atrocities against partisans, of the kind given in evidence, that their
warfare was of a great extent or very fiercely or bravely waged. This is
just the _tu quoque_ argument in its nakedness—because partisans fight
you, therefore you can burn their villages, shoot their women, and kill
their children. That is the argument which we say is irrelevant and is
inadmissible.
My Lord, I should like to say that I have no objection, if any of these
documents can be obtained, to Dr. Exner’s looking at the documents; on
that point to which the Prosecution attached importance, I thought it
right—and I know my colleagues desired it—that I should make our
position clear.
THE PRESIDENT: That concludes your address, Dr. Exner, does it?
DR. EXNER: May I add something concerning the last point. I am, of
course, perfectly aware that those atrocities, as described here, cannot
be justified by the activities of the partisans, but the more violent
the actions of the partisans became, the harsher—of necessity—were the
German military countermeasures, so that there is, after all, a
connection between these matters.
THE PRESIDENT: The Tribunal will consider your argument.
The Tribunal will now adjourn.
[_The Tribunal adjourned until 7 March 1946 at 1000 hours._]
SEVENTY-SIXTH DAY
Thursday, 7 March 1946
_Morning Session_
THE PRESIDENT: I call on counsel for the Defendant Von Papen.
SIR DAVID MAXWELL-FYFE: If the Tribunal approves, I shall indicate the
views of the Prosecution on the witnesses requested by Dr. Kubuschok.
THE PRESIDENT: Very well.
SIR DAVID MAXWELL-FYFE: The first witness is Von Lersner and there is no
objection. This witness is called to cover, among other things, the
period of the coming into power of the Hitler Government, which is a
time of material importance in the case against Von Papen.
If the Tribunal would consider the next three witnesses, there is a
minor point: The witness Tschirschky was, as I understand it, Von
Papen’s private secretary from 1933 to February 1935. That is, he
covered the period of the rise to power of the Nazi Party. And he also
covers some of the Austrian period.
The next witness, Von Kageneck, is also a private secretary. He does not
cover the period of the rise to power, but covers the whole Austrian
period.
The next witness, Erbach, was counsellor at the Embassy in Vienna, that
is, he covers the period 1934 to 1938.
The Prosecution has always been reluctant to oppose the calling of
secretaries who could assist the memory of the defendant, but it did
seem to us that the witness Tschirschky was cumulative both on the
period of the rise to power and the Austrian period and that it would be
sufficient to have interrogatories in that case. Therefore, the
Prosecution, apart from that, would not object to Von Kageneck and
Erbach.
THE PRESIDENT: That is, you suggest interrogatories for 2 and calling 3
and 4?
SIR DAVID MAXWELL-FYFE: Yes, My Lord, interrogatories, and calling of 3
and 4.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: And with regard to Number 5, the witness Kroll,
the Prosecution submits that he is irrelevant. He is called for the
period when the defendant was an ambassador in Turkey and he allegedly
is able to say that Von Papen had no aggressive thoughts with regard to
Russia. The Prosecution would submit that Von Papen is really the person
who can speak on a matter like that, and the Prosecution has had no
evidence as to any subversive activity of the Nazi Party in Turkey;
which is the other point that this witness is said to speak on.
Then the next five witnesses, 6, 7, 8, 9, and 10: The Tribunal granted
interrogatories and, so long as the matter is limited to
interrogatories, the Prosecution will make no objection.
And Number 11, the Baroness De Nothomb: The Prosecution object to
evidence on acts of intercession on behalf of members of the resistance
movement, and individual acts of that kind, in the opinion of the
Prosecution, are not really relevant to the matters before the Court.
With regard to Archbishop Gröber, if the Tribunal would not mind looking
at Number 12 in the application, in the opinion of the Prosecution the
matters raised by the questions are not relevant. The first is, “Were
the Concordat negotiations between Germany and the Holy See brought
about by Defendant Von Papen’s own initiative?” The second part of this
question is, in short, “Did Von Papen make efforts with Hitler regarding
the conclusion of the Concordat?” Well, the Concordat was made, and what
the Tribunal are really concerned with is the breaches of the Concordat,
of which the Prosecution has given written evidence.
The second question—I am afraid that I do not understand that, and in
its present form I submit that it is irrelevant, in addition to being
vague—“Were the activities of the defendant directed by his positive
religious attitude after the conclusion of the Concordat also?”
Then the third question: “Was the conclusion of the Concordat welcomed
by the German Episcopate?” I don’t think that really helps.
And fourth: “Did the Concordat give legal backing to the Church during
the latter’s religious struggles?” And, “Could the Church, in the end,
fall back on the Concordat?”
The Concordat is there and speaks for itself, and, as I say, the issue
in this case is the breaches of the Concordat, not its contents. So we
object to Number 12.
Number 13, the witness Von Beaulieu—that is very short, if the Tribunal
would be good enough to look at it:
“I shall submit an affidavit of the witness, which deals with
the intervention of the defendant as President of the Union Club
on behalf of Jews.”
The Prosecution submit that the intervention in a racing club on behalf
of some Jewish members is not really a relevant matter, even on the
Jewish issue.
Number 14, the witness Josten—Dr. Kubuschok asks for the use of a
statement which has been sent to the Tribunal. The Prosecution would
prefer that to be in the form of an affidavit or interrogatory, if this
is possible.
THE PRESIDENT: That is 14, is it?
SIR DAVID MAXWELL-FYFE: 14, My Lord, yes.
Then 15 is His Majesty, the King of Sweden. That is a new application
and general in its scope. It is difficult to judge how much King Gustav
could contribute, and, therefore, the Prosecution do not object to
interrogatories.
THE PRESIDENT: Sir David, in 14 Dr. Kubuschok says that he requested
that the statement made by the witness to the legal department of the
Military Government headquarters, Düsseldorf, be furnished him. Are you
objecting to that being furnished him?
SIR DAVID MAXWELL-FYFE: No, I thought that he had got it.
DR. KUBUSCHOK: I got it this morning.
SIR DAVID MAXWELL-FYFE: Dr. Kubuschok says that he received it today,
this morning.
THE PRESIDENT: Are you objecting to his offering it as evidence?
SIR DAVID MAXWELL-FYFE: No, I only say that we should prefer it in the
form of an affidavit or interrogatory, if that can be done. I do not
make any great objection.
DR. KUBUSCHOK: In regard to the witnesses I should like to say the
following: Witness Number 1, Baron Lersner—the Tribunal granted only an
interrogatory at first. The prosecutor has today agreed to have the
witness called before this Tribunal. I also ask very urgently that this
witness be questioned before the Tribunal.
The witness was the president of the German peace delegation at
Versailles. He is a very well known German diplomat, who since 1932 has
worked very closely with the Defendant Von Papen. A man like Lersner
had, of course, a particularly fine understanding for every policy of
aggression. Therefore, it is very important that this co-worker of the
Defendant Von Papen be heard and be allowed to tell us how he has
observed the defendant in his activities up to 1944. It is particularly
important that Lersner, at the instigation of Defendant Von Papen, could
go to Turkey.
THE PRESIDENT: Dr. Kubuschok, Sir David agreed, I think, with reference
to Number 1.
DR. KUBUSCHOK: Yes, if the Tribunal also agrees, then the matter is
taken care of.
The second witness, Tschirschky—Tschirschky was the private secretary
of the defendant from 1933 to 1935, the first private secretary during
the time that the defendant was Vice Chancellor. He is a man who was
himself persecuted by the Gestapo and had to go into exile in 1935,
where he still is. He is a man who can give exhaustive information on
the whole period from 1933 to 1935 in regard to the external activity of
the defendant and his personal attitude.
I believe that, especially for the time from the beginning of 1933, we
shall not get a thorough picture if we do not hear this closest
co-worker of the defendant personally. The other witnesses concern
mostly different periods. Only in some cases do they overlap with the
activity of this witness.
Number 5, Kroll. . .
THE PRESIDENT: Supposing that the Tribunal thought it right to grant you
Number 2 as an oral witness, would it not be possible to dispense with
one of 3 or 4 and have interrogatories from one of them and call the
other one? They deal with somewhat the same period.
DR. KUBUSCHOK: We definitely need 3 for the following reasons:
Witness Kageneck was present when Hitler entrusted Papen with the
Austrian mission. This is a very important point, since the Prosecution
alleges that he was entrusted with this mission for those purposes of
which he was accused. The witness will testify that Papen accepted the
mission only after a clear guarantee concerning the purpose of the
mission. Furthermore, Count Kageneck was also in Vienna after 1935, that
is to say, from 1935 until the Anschluss, and for this period we should
not have any other witness. Kageneck can also confirm a very important
point, that is, that he was entrusted with taking diplomatic documents
to Switzerland and safeguarding them there, since from these documents
the documentary proof for the activity of the defendant in Vienna could
be deduced. Therefore, in my opinion, the witness Kageneck also cannot
be dispensed with.
If we can dispense with any witness, it would be witness Number 4,
Erbach, in regard to whom I might then ask for permission to use an
interrogatory, because here, too, questions are to be asked which the
other witnesses cannot answer.
Witness Number 5, Minister Kroll—Papen is accused of a conspiracy for
aggressive war. The Indictment is not limited in respect to time. For
the largest part of the time in question, namely 1938 to 1944, Papen was
in a position which would have been particularly designed for an
activity directed at undermining the peace. Turkey was for a long time
an important pillar in military and, therefore, political
considerations. It is, therefore, of the greatest interest whether Papen
used his position for any activity in the nature of such a conspiracy.
Moreover, I should like to bring proof of the opposite. The fact was
that his activity was directed at preserving the peace and that he was,
in particular, against any extension of the war by means of military
measures against Russia, and was against every political measure for the
destruction of the relations between Turkey and the Allied Powers.
The witness was, during the Turkish period, the closest co-worker of the
defendant. He is, therefore, in a position to give us information about
the entire period.
Baroness De Nothomb—I have asked in this case to be permitted to
present an affidavit or interrogatory. I want. . .
THE PRESIDENT: Which number are you dealing with?
DR. KUBUSCHOK: Number 11.
THE PRESIDENT: You are not dealing with 6 to 10?
DR. KUBUSCHOK: No, we are in agreement about 6 to 10.
THE PRESIDENT: Very well, 11.
DR. KUBUSCHOK: Number 11, Baroness De Nothomb—in this case I asked for
an interrogatory or for permission to submit an affidavit. The subject
of the evidence is:
During the years 1940 to 1944 the defendant continuously supported the
witness in her intervention on behalf of persecuted members of the
French resistance movement. I want thereby to prove that the Defendant
Von Papen shows again, in this case, that he was greatly interested in a
peaceful shaping of German-French relations, and that during the war he
always had in mind the postwar time, when the poison should be removed
from these relations. The intervention on the part of the defendant was
also a result of general humanitarian considerations. This is not
without considerable importance in connection with the charge of
conspiratorial activity.
Number 12, Archbishop Gröber—the Indictment asserts that the Defendant
Von Papen used his position as a prominent German Catholic for a dirty
business of deception, and that the conclusion of the Concordat, as
such, was effected in the course of a policy directed against the
Church; that the conclusion of the Concordat was not intended seriously,
as one could see from the later violations of the Concordat. Archbishop
Gröber was, at the time of negotiations concerning the Concordat, at the
Holy See. He was present during all the negotiations. He knows that the
initiative for starting negotiations came from Von Papen himself, who
did not get Hitler’s approval until later. He knows that the draft which
had been made by Von Papen for the Concordat was strongly disapproved by
Hitler and that Papen was able to advance this draft only after long
struggles. The witness knows the Defendant Von Papen very well. He also
knows from what inner stand toward the Catholic question the defendant
approached the matter of the conclusion of the Concordat. As an
influential dignitary of the Church he can also judge the consequences
of the Concordat. He is in a position to judge that the contents of the
Concordat at a later time also were still a protection for Church
interests; and from his knowledge of the personal relations of the
defendant and all the relations of the Church in Germany, he can testify
as to whether the defendant had anything at all to do with the
violations of the Concordat.
THE PRESIDENT: Dr. Kubuschok, does witness Number 2 deal with the same
subject? Where you say in your discussion of the subject of the
evidence, that witness Number 2 accompanied the defendant to Rome to
conclude the Concordat—can he testify that against Hitler’s strong
opposition he succeeded, at the last minute, in concluding the
Concordat? At that time was the witness present at all the speeches?
DR. KUBUSCHOK: The witness Tschirschky was introduced into the
negotiations concerning the Concordat by the defendant. It is very
important, in my opinion, to examine also a witness who was present at
the negotiations as representing the other side. In particular, this
witness, Archbishop Gröber, could also express an opinion in regard to
the later period, the violations of the Concordat. He can judge the
entire situation from the point of the Church better than can the
private secretary Tschirschky. He can also give an essentially more
reliable picture of Von Papen’s personality, which in this matter is
very closely connected with his political activity. I have been very
modest in my requests; but I should like to ask urgently, in this case,
that an interrogatory or an affidavit by Archbishop Gröber be granted,
for it is indeed clear that the accusation that a prominent German
Catholic uses his position for evil purposes of deception is a very
serious one, and the defendant also is very greatly interested in having
this question clarified, within the framework of the Indictment and also
beyond that.
Witness Number 13—an affidavit of Herr Von Beaulieu, who shall testify
that the defendant, in his position as president of a very large and
prominent German organization, intervened until the very end for the
non-Aryan members, as this term was used at that time. Everything which
is of importance in judging the Papen case lies, for the most part, in
the sphere of the subjective. We will see very few actual actions in the
Papen case. The accusations are, for the most part, based on the fact
that he was present. It is, therefore, relatively difficult to bring
proof and therefore the counterevidence must to a large extent be
subjective in nature. To judge a person’s character in its entirety, it
is not unimportant to know what, for instance, his attitude was in 1938
toward the question of the treatment of Jews, for, if Papen here
definitely deviated from a general line followed by Hitler and the
Nazis, one will certainly be able to draw a conclusion as to whether he
was really the faithful follower of Hitler which the Indictment tries to
picture him.
Witness Number 14—I received the statement today. I have not yet had
time to look through it. I shall submit either the statement or an
affidavit which I shall try to get.
Number 15—a questioning of His Majesty King Gustav of Sweden, to be
conducted in every way possible. This is a very important question. It
touches a major point of the Defense, namely, in how far it was possible
for a person not entangled in the ideas of Nazism to collaborate to a
certain extent. To what extent could he hope, by his personal activity,
to change things or at least to modify them? If, on the basis of the
evidence submitted, we prove that Von Papen not only exhausted his means
to serve this end within Germany, but also, beyond this, used his
foreign political connections for this purpose, then this should, I
believe, round out the picture of the character of the defendant in an
important way. This strong activity in the interest of peace is such
that, in my opinion, simply on the basis of such activities, the
absolute falsehood and untenability of that charge of the Indictment
that the defendant at any time could have approved of the aims of an
aggressive policy within the framework of a conspiracy becomes apparent.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the
documents, Numbers 1 to 8, the Prosecution asks Dr. Kubuschok to submit
the extracts, and then we can consider the relevancy at that time. I
think that Dr. Kubuschok has Number 9.
DR. KUBUSCHOK: I have in my possession only the photostat which I
received from the Prosecution.
SIR DAVID MAXWELL-FYFE: I am sorry. I should have said he had a
photostatic copy, but the Prosecution have certified the photostat. The
original is not obtainable at present. If it comes into our possession
we shall let Dr. Kubuschok see it.
The third point is that Dr. Kubuschok says that he may have to make a
supplementary application after Herr Von Papen, Jr. returns. That is, of
course, a matter for him and the Tribunal. The Prosecution make no
objection.
THE PRESIDENT: With reference to 1 to 8, has Dr. Kubuschok got the
books?
DR. KUBUSCHOK: Yes.
THE PRESIDENT: Very well. Then he will be prepared to specify what parts
of them. . .
DR. KUBUSCHOK: Yes, Sir; yes, indeed. I should merely like to add one
point to the list. Yesterday I received from the Prosecution a further
report to Hitler by Von Papen at the time of his activity in
Vienna—Number 9, also a report to Hitler. I have also received it in
the form of a photostat. I shall also submit this report for purposes of
evidence.
THE PRESIDENT: I call on counsel for the Defendant Seyss-Inquart.
SIR DAVID MAXWELL-FYFE: May we state our position?
May it please the Tribunal, with regard to this defendant, the position
as to the first four witnesses is that they deal with the Austrian part
of the case. On the 2d of December the Tribunal allowed this defendant a
choice of four out of nine. He has chosen Glaise-Horstenau, who was a
minister in the Austrian Government; Guido Schmidt, who was the Foreign
Minister at the time of the Schuschnigg-Hitler-Ribbentrop interview;
Skubl, who was the Police President and State Secretary for Security in
Vienna; and Rainer, who is a well-known Nazi and who was afterwards
Gauleiter of Carinthia.
The Prosecution have no objection to these witnesses.
Then we come to the Holland period, and the Prosecution have no
objection to Wimmer and Schwebel, but they do object to Bolle’s being
called as an oral witness. The position is that he was refused by the
Tribunal on the 26th of January. After the refusal interrogatories were
submitted, but these seem to be almost entirely covered by the
interrogatories administered to the witness Von der Wense, who is the
second under the heading of affidavits. I think out of the 20 questions
suggested for Bolle, there are only two that are not covered by Von der
Wense, which are Numbers 17 and 18, and two others which seem to deal
with very obvious points. So that is the objection with regard to Bolle,
and the Prosecution submit that he would really be cumulative and is
unnecessary. They make no objection to Fischböck, who speaks on the
Jews, financial administration, art treasures, and forced labor. They
make no objection to Hirschfeld, who speaks about confiscations and
destruction of factories and the food situation. So, on the oral
witnesses, the only objection is regarding Bolle.
With regard to the affidavits there is no objection—or rather, they
should be interrogatories. They were all granted by the Tribunal on the
26th of January, and under these circumstances the Prosecution make no
objection to them.
THE PRESIDENT: Yes, Dr. Steinbauer.
DR. GUSTAV STEINBAUER (Counsel for Defendant Seyss-Inquart): Mr.
President, Your Honors, my client, Dr. Seyss-Inquart, had at first asked
for a large number of witnesses and then, at my advice, and according to
the desire of the Tribunal, reduced this number considerably.
I ask that the witness, construction supervisor Bolle, be admitted
before the Tribunal because in my opinion the objection made by the
Prosecution, that this is a cumulative witness, is not quite correct.
Bolle was, before the occupation, Director of the Port of Hamburg, and
then during all the years of the occupation he was director of the
transportation department in Holland.
In particular he can testify about the railroad and shipping strike in
October 1944. This chapter of the history of the occupation is
extraordinarily important, because this strike resulted in a blocking of
traffic which led to an embargo. The Indictment asserts, moreover, that
the causes of the later famine catastrophe in Holland, as we may call
it, can in part be traced back to measures which the Defendant
Seyss-Inquart took in October 1944. Quite understandably, the Armed
Forces wanted to use the few means of transportation which were still
functioning, for their own purposes. The very examination of the witness
Bolle should prove, however, that Seyss-Inquart endeavored, insofar as
possible, to mitigate the effects of the measures taken by the Wehrmacht
in this matter. In an interrogatory this complex of questions could not
be treated exhaustively.
I ask you, Gentlemen, to realize that we are dealing here with the
examination of the administration of a kingdom of 9 million within a
period of 5 years. If we read through the report submitted by the Dutch
Delegation we see, in regard to the financial consequences, alone, that
it is alleged that the damage, which had been brought about by the
administration on the one hand and by the events of war on the other
hand, in short, by the occupation of Holland by Germany, reaches a
figure of 25,725,000,000 Dutch guilders, to which, considering the
difference in prices between 1938 and now, we have to add a margin of
175 percent.
I wish to point out that we are dealing here with the examination of
administrative, legal, financial, and economic measures over a period of
5 years. I therefore believe that the request of the defendant that this
witness be admitted is quite justified.
Concerning the affidavits, I took the liberty of making two more
applications which have not yet been granted. This is on the last page,
a very short affidavit by Baron Lindhorst-Hormann. He was formerly
Commissioner of the Province of Groningen and should in particular be
examined in regard to one point, in regard to the treatment of the
so-called hostages in the hostage camp, and also in regard to the fact
that none of these hostages was shot.
In addition to getting this affidavit, I have also asked that some
official announcements be obtained, announcements by the Higher Police
and SS Leader Rauter regarding the executions in order to prove who had
done these things, that is, that the point of view of the defendant is
that these regrettable measures were taken by the police and not by the
civil administration.
I also intend to submit two affidavits which are already in my
possession. One of them is an affidavit by a German judge,
Kammergerichtsrat Rudolf Fritsch. In Seyss-Inquart’s administration in
Holland he was in charge of appeals. He can tell us how Seyss-Inquart
handled this important chapter of jurisdiction.
Another affidavit which I have in my possession comes from a Dr. Walter
Stricker. It is cited as Document Number 30. Dr. Walter Stricker was a
lawyer in Vienna and emigrated in 1938 to Australia. He served in the
Australian Army and, without my asking, he sent me an affidavit,
notarized by an Australian notary public, in which he testifies about
conditions in Vienna in the critical days of October and November 1938.
I ask also that this affidavit be admitted. As to the documents, as I
have already told Sir David, I shall submit an exact list.
THE PRESIDENT: One moment, before you deal with that. Sir David said
that with reference to the affidavits, which are mentioned on Page 2,
that these ought to be called interrogatories. I do not know whether you
wish to ask particularly for affidavits, which are different from
interrogatories.
DR. STEINBAUER: Yes, Sir.
THE PRESIDENT: You want affidavits?
DR. STEINBAUER: Interrogatories, Sir.
THE PRESIDENT: Would there be any objection to the affidavit from the
lawyer in Australia being shown to the Prosecution, so that they may see
whether they wish to put cross-interrogatories to that witness?
Australia is too far away from here for him to be brought here for
cross-examination.
DR. STEINBAUER: Certainly.
SIR DAVID MAXWELL-FYFE: I have just been handed that affidavit from the
witness Stricker and also Number 6, on the Dutch questions, from Judge
Fritsch; and if the same course could be taken with regard to that from
Baron Lindhorst-Hormann, I shall be ready then to consider that, too.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: With regard to the rest of the documents in the
usual course, I ask that the Defense make extracts and show them to us.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: There is one point I call to the attention of
the Tribunal. It may be helpful that Number 28, Document Number D-571,
is already in as Exhibit Number USA-112. I do not know if the Defense
really wants Number 3. I shall not deal with it now, but the Prosecution
will submit that it is really unnecessary and irrelevant, but I think
that is a matter that we can more conveniently discuss when it comes up.
THE PRESIDENT: Yes. Then with reference to Number 2, under the heading
concerning the Dutch question, will it be satisfactory if that is in the
form of an affidavit and is submitted to you, so that you can put
cross-interrogatories if you want to?
SIR DAVID MAXWELL-FYFE: That would be very satisfactory.
THE PRESIDENT: Dr. Steinbauer, have you got the affidavit mentioned in
Paragraph 2 of the last heading?
DR. STEINBAUER: No, Sir; I have not received it yet. But I have
requested that the Tribunal question the witness.
THE PRESIDENT: Could the interrogatories be in a more convenient form?
DR. STEINBAUER: Yes, Sir.
THE PRESIDENT: Then we need not trouble you further about the documents.
DR. STEINBAUER: I have only the request that, if possible, two books,
which are not in my possession, be obtained: Document Number 8, Guido
Zernatto, _The Truth about Austria_, and Number 9, the book _A Pact with
Hitler—The Austria Drama_ by Martin Fuchs. I was told by Austrian
people that both these books contain worthwhile information on
clarifying the events in 1937 and 1938. Both books were, of course,
prohibited in Austria during the Nazi regime and therefore I cannot get
them.
The second book is also on the list presented by the French Prosecution,
and from this I have learned that the book appeared in the publishing
firm of Plon in Paris. Perhaps it is possible, with the assistance of
the Prosecution, to get these books in time. All other documents I have
in my possession.
THE PRESIDENT: Did you say Number 2? You said 8 and 9, but did you also
say Number 2?
DR. STEINBAUER: Number 2, _Three Times Austria_, by Schuschnigg.
THE PRESIDENT: I thought you mentioned the third book. You said you have
not got Numbers 8 and 9 and I thought you went on to mention a third
one.
DR. STEINBAUER: No, Sir; only these two books.
THE PRESIDENT: Very well. Then, no doubt, the Prosecution will help you
to get them.
SIR DAVID MAXWELL-FYFE: We will make inquiries, My Lord, and we will
communicate with them.
THE PRESIDENT: Yes. I call on counsel for the Defendant Speer.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Defendant Speer
has asked for 22 witnesses, who are all to answer in writing. There are
no oral witnesses. And he asked for 41 documents. He has also asked that
the Court appoint a panel of experts to interrogate a number of
witnesses on what are termed “economic questions.” Now, I think it would
be convenient if I summarize in four sentences the points of defense
that appear on Page 26 and the following pages of the application,
because if the Tribunal have these in mind it will make consideration of
the witnesses easier.
There are four points. Number 1 is to show the responsibility of Speer.
The Defendant Speer says that he was not responsible for the
mobilization, allocation, or treatment of labor. The second point is to
prove that his functions were merely technical and not political. The
third point, to prove his actions to stop the importing of foreign labor
and the treatment of concentration camp labor in the armament factories,
which were his concern. The fourth point is his efforts, at the end of
the war, to stop destruction in Germany and so to benefit the Allies and
Germany after the war.
Now, of the witnesses, the following are from his own ministry, Numbers
1 to 6, 8, 10, and 12. The Prosecution submit that nine is rather a
large number dealing with the position of the ministry. They are
cumulative on many points and we should suggest that, if counsel would
pick three, that that would cover that part of the case.
Now, the following witnesses, Numbers 15 to 21, are designed to show the
attitude of the defendant at the end of war. There are a number of
documents on this point, and again the Prosecution submit that that
number of witnesses could be cut down to two or three.
Now, dealing with the remaining witnesses, Number 7, Field Marshal
Milch, has already been allowed to Defendant Göring, so that point does
not arise.
And Number 9, Dr. Malzacher, although not a member of the defendant’s
ministry, was in charge of armaments in the southeast, and would appear
to be cumulative as to the members of the ministry.
Number 11 is the liaison officer between the ministry and the OKW and
also appears cumulative, unless counsel could indicate any special point
that escaped the Prosecution.
Number 13 is really cumulative of Number 12, speaking on a point on
which Frau Kempf can speak.
Number 14 is the defendant’s doctor, to speak on a period of illness.
Again, unless there is some point that the Prosecution have not
appreciated, they would have thought that the defendant and his
secretary could speak on a period of illness.
Finally, Number 22, Gottlob Berger, is designated to inform the Tribunal
of Hitler’s general views on the situation at the end of April 1945, and
would appear to be irrelevant. I think the only point that is made is to
show that this had some effect on the radio speech which this defendant
wanted to make. These are the views of the Prosecution as to the
witnesses. With regard to the panel of experts, the Prosecution
respectfully say that these matters of supply labor and armaments are
matters which are very generally familiar now and on which a great deal
of evidence has been given, and that they are essentially matters which
can be dealt with by the Tribunal which will decide other questions of
fact. They are not really sufficiently specialist matters to merit the
Tribunal’s setting up a special panel to deal with them. These are the
views of the Prosecution on the question of witnesses.
THE PRESIDENT: Yes, Dr. Flächsner.
DR. HANS FLÄCHSNER (Counsel for Defendant Speer): May I start, Mr.
President, with the last point which the prosecutor has mentioned,
namely, the question of whether the case of the Defendant Speer might
justify having his sphere of activity explained and interpreted to the
Court by an expert. The prosecutor is of the opinion that the evidence
presented so far is sufficient to inform the Tribunal about the manner
of work, the course of work, and its consequences in regard to those
questions, which came under the jurisdiction of the Defendant Speer.
I regret to have to say, however, that the description which the
Prosecution has given of the activity of the Defendant Speer up till now
is not correct, that is to say, not complete.
It is very difficult to take account of a ministry and its manner of
work, which in normal times has no place in the state administration. In
all states at war the ministries of armament and production are created
during the war. The sphere of activities of these ministries is
determined from time to time; and that also applies to the ministry
which the Defendant Speer headed.
Not only the ministry of the Defendant Speer, but especially other
authorities within the state administration were concerned with that
question, which the Prosecution has brought to the notice of the
Tribunal; and the authorities overlapped each other in regard to
jurisdiction. Many times the jurisdiction of a single authority could
not be determined, so that from time to time a solution would have to be
found. These are all questions of importance, if the Tribunal is to
judge to what extent this or that accusation of the Prosecution,
especially concerning the employment of foreign workers, is well
founded. In addition we have to consider that that defendant originally
involved in this complex of economic questions, who could have helped
very much to clear up the question of jurisdiction—the Defendant Ley,
who, as head of the German Labor Front, played an important role in the
question of labor employment, that is, the taking care of the laborers
utilized—that this Defendant Ley is no longer here. The question of the
use of foreign labor, of which the Defendant Speer is in the main
accused by the Prosecution, must be discussed further. For this reason I
requested that an expert be allowed to clear up these purely technical
questions of the labor employment as a help to the Tribunal.
The selection of such an expert is not easy. I proposed that one of the
gentlemen who work in the economic branch in Washington might have
examined the question of Speer’s ministry; and might appear as an expert
before this Tribunal. I was told this office does not exist any more and
the persons of whom the Defendant Speer had the impression, at the
occasion of an interrogation, that they really understood the situation,
are no longer available. But, there is still an Allied authority here,
which is concerned with, in all probability, economic questions; and
perhaps it would be possible to select a suitable person within the
circle of gentlemen who are working there, who would be in a position to
clear up these questions for the benefit of the Tribunal.
I turn now to the question of witnesses. First of all I have to correct
a wrong impression which may have been formed by the Prosecution. If it
is said that witnesses 1 to 5—no, 1 to 6, 8 and 10 and 12. . .
THE PRESIDENT: If you are leaving now the question of the panel of
experts, this would be a convenient time to break off for the recess.
[_A recess was taken._]
DR. FLÄCHSNER: Mr. President, I am now turning to the question of
witnesses and should like to make a general remark before I start.
The evidence to be offered by the witnesses, as I have already requested
in writing, is somewhat more extensive for this reason, that those very
witnesses who would have had the most comprehensive knowledge cannot be
called. Those are the former Army chiefs of armaments, General Fromm,
and Schieber, who for many years was the chief of the central office in
Speer’s ministry. The names which I have included in my list are, in
part, men who only later were called to these tasks. Witness Hupfauer,
for instance, who is listed as Number 1, was active in this function
only from 1 January 1945 on—that is barely 4 months—as chief of the
central office, an office formerly held by the previously mentioned
Schieber.
I know very well that if I mention a number of witnesses who were
employed in Speer’s ministry the appearance is thereby created that
these witnesses might be cumulative because they are questioned in
regard to the same points. In reality that is not the case. Indeed,
although the witnesses concerned were active in Speer’s ministry, they
were not active as routine officials, that is, as professional civil
servants in an office.
Speer’s ministry as a war institution was organized along lines entirely
different from those of a regular ministry. Main functions were
delegated to industrialists, who took care of them in a suboffice.
Rohland, witness Number 2, was, for instance, by profession a director
of the United Steel Works; witness Number 4 was director of the Zellwell
A.G.; witness Number 6, a manufacturer and owner of a textile factory;
witness Number 9, the director of the Upper Silesian mining works and of
Hütten A.G. In addition to these functions they had special functions in
Speer’s ministry. Therefore they can testify only on a small section,
namely, those functions delegated to them. Therefore I cannot follow the
suggestion of the Prosecution, that only two of these gentlemen be
selected by me.
I do not know just how far each of these gentlemen is informed on the
questions which I shall submit to him. I am not in the fortunate
position of the Prosecution, who can question their witnesses in advance
and find out what they know. I must rely on an interrogatory and can
only surmise that they are in a position to answer the questions
submitted to them. If I were to follow the suggestion of the Prosecution
and select only two or three of these gentlemen, it may very well happen
that I should select exactly the wrong people, those who do not know
anything. Therefore I cannot say that I could dispense with any one of
these witnesses who are to be here on the main question in the case
against Defendant Speer, namely, the employment of foreign laborers.
In the list of witnesses I mentioned briefly the particulars about which
these witnesses are to be heard. I believe that it is unnecessary for me
to make further explanations in that regard; I believe my reasons are
self-explanatory.
Now I am turning to the question of witness Number 7. This witness has
already been granted me. I do not believe that further explanations in
regard to this are necessary.
As far as Malzacher, witness Number 9, is concerned, the Prosecution
asserts that this witness would be cumulative of witness Number 1. But
that is not so. The vital question which is to be put to this witness is
the question as to how the distribution of manpower to the various
industries was made by the labor office. The second question is, whether
and to what extent the offices of Speer’s ministry and the industries
had the opportunity of influencing the distribution of available
manpower. This witness is of decisive importance in regard to this
question. I have further questions to put to this witness and I should
include in the interrogatory these questions which refer in particular
to destruction, _et cetera_.
I wanted my list to be as concise as possible and therefore mentioned
only the main points. I therefore request that this witness be admitted,
since I shall make use of the interrogatory only insofar as the
witnesses can state therein something which is really relevant. If an
interrogatory comes back to me which does not contain relevant material,
I shall, of course, refrain from abusing the time and the patience of
the Tribunal by not presenting that interrogatory.
The Prosecution is of the opinion that witnesses 12 and 13 are
cumulative. That is not correct. Perhaps I expressed myself too
concisely in regard to the facts on which these witnesses are to
testify.
The Prosecution have, only incidentally to be sure, produced a document,
3568-PS, which contained an interrogatory which gave information
regarding Speer’s membership in the SS. This document did not, according
to the Defendant Speer, come from him, and therefore I name his
secretary as a witness to this fact; that is, she should receive an
interrogatory.
Witness 13 is to testify on an entirely different matter. The
Reichsführer SS Himmler had the intention of making Speer an SS man and
of taking him into his personal staff. Witness Wolff had received from
Himmler the official statement, which he was to hand to Speer. And Wolff
is to testify that this statement was never forwarded to Speer, for
which reason there is no question of Speer’s membership in the SS.
Even if, in respect to the charge in the Indictment, this is a very
minor point, it must nevertheless be considered, since Document 3568-PS
has been submitted by the Prosecution and used as evidence for their
case.
I agree with the Prosecution that questioning of witness Number 22 can
be dispensed with and I can do so.
As far as the questioning of the other witnesses is concerned, I ask to
be allowed to use interrogatories.
THE PRESIDENT: May I ask you what you have to say about 14? Surely the
secretary can speak as to the fact that the defendant was ill in the
spring of 1944?
DR. FLÄCHSNER: Yes, Mr. President; I did not include this question in
the interrogatory but I can add it, and we can dispense with witness 14.
THE PRESIDENT: Would it, do you think, Sir David, expedite matters or
help the defendant’s counsel if he were to be allowed to issue all these
interrogatories and then were to consider them with you and see what was
then cumulative?
SIR DAVID MAXWELL-FYFE: Yes, I should be quite prepared to do that. They
are all witnesses who are giving their evidence in writing so that I
shall be quite prepared to. . .
THE PRESIDENT: Well, the Tribunal will consider that aspect of the
matter.
SIR DAVID MAXWELL-FYFE: If the Tribunal saw fit I should be very happy
to co-operate.
THE PRESIDENT: Then you can now deal with the documents, Dr. Flächsner,
or Sir David will.
SIR DAVID MAXWELL-FYFE: My Lord, the documents 1 to 8 deal with the
Defendant Speer’s being against the importation into Germany of foreign
labor and they seem relevant, apart from Number 1, which seems rather a
_non sequitur_, for the amount used in the armament industry does not
seem to have any connection, as far as we can see, with the
Prisoner-of-War Convention, 1929. And Number 6, as to the calling up of
women in Germany, seems rather remote. But perhaps these matters can be
more conveniently dealt with when counsel seeks to introduce the
documents.
Numbers 9 to 13 show the general attitude of the Defendant Speer to the
treatment of foreign workers and therefore appear relevant. Number 14
deals with the point on which I think it is desired also to have
evidence from the witness Milch.
Numbers 15 to 18 are reports showing the hopelessness of the economic
situation in Germany from June 1944 onwards. The Prosecution makes no
objection at the moment. Of course, all these matters will have to be
considered when the document is used. And Numbers 19 to 41 all deal with
the efforts of the Defendant Speer to prevent destruction of bridges and
railways and water transport undertakings and the like, during the last
few weeks of the war. They might have a bearing on the sentence and
therefore the Prosecution make no objection.
Perhaps learned counsel will set out the quotations which he wants
admitted in that regard. It is not a matter on which the Prosecution
have called any contrary evidence and therefore, if counsel will
indicate what the matters are that he wants submitted, it may be that we
shall be able to agree and shorten the presentation.
With regard to Documents 38 to 41, these are said to be in the
possession of the French Delegation. They are not in the possession of
the French Delegation at the moment, but they have asked for them to be
sent here.