THE PRESIDENT: Before we deal with the applications, I am going to read the Tribunal's order upon Dr. Stahmer's memorandum of 4 February 1946 and the Prosecution's motion of the 11th of February 1946. This is the order:
The Tribunal makes no order with regard to Paragraphs 2 to 5 of the Prosecution's motion as to the evidence of the defendants, dated the 11th of February 1946.
With regard to Paragraphs 2 and 7 of Dr. Stahmer's memorandum on defense procedure, dated the 4th of February 1946, the Tribunal makes the following order:
1. The defendants' cases will be heard in the order in which the defendants' names appear in the Indictment.
2. (a) During the presentation of a defendant's case, defendant's counsel will read documents, will question witnesses, and will make such brief comments on the evidence as are necessary to insure a proper understanding of it.
(b) The defendant's counsel may be assisted in the courtroom by his associate counsel or by another defendant's counsel. Such other counsel may help the defendant's counsel in handling documents, et cetera, but shall not address the Tribunal or examine witnesses.
3. Documentary evidence.
(a) Defendant's counsel will hand to the General Secretary the original of any document which he offers in evidence if the original is in his possession. If the original is in the possession of the Prosecution, counsel will request the Prosecution to make the original of the document available for introduction in evidence. If the Prosecution declines to make the original available, the matter shall be referred to the Tribunal.(b) Should the original of any such document be in the possession of the Tribunal, defendant's counsel will hand to the General Secretary a copy of the whole or relevant part of such document, together with a statement of the document number and the date upon which it was received in evidence.
(c) Should counsel wish to offer in evidence a document, the original of which is not in his possession or otherwise available to
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the Tribunal, he will hand to the General Secretary a copy of the whole or relevant part of such document, together with an explanation as to where and in whose possession the originally located and the reason why it cannot be produced. Such copy shall be certified as being correct by an appropriate certificate.
4. Each defendant's counsel will compile copies of the documents or parts of documents which he intends to offer in evidence into a document book, and six copies of such document book will be submitted to the General Secretary 2 weeks, if possible, before the date on which the presentation of the defendant's case is likely to begin. The General Secretary will arrange for the translation of the document book into the English, French, and Russian languages, and the defendant's counsel will be entitled to receive one copy of each of these translations.
5. (a) Defendant's counsel will request the General Secretary to have the witnesses named by him and approved by the Tribunal available in Nuremberg; such request being made, if possible, at least 3 weeks before the date on which the presentation of a defendant's case is likely to begin. The General Secretary will, as far as possible, have the witnesses brought to Nuremberg 1 week before this date.
(b) Defendant's counsel will notify the General Secretary not later than noon on the day before he wishes to call each witness.
6. (a) A defendant who does not wish to testify cannot be compelled to do so, but may be interrogated by the Tribunal at any time under Articles 17(b) and 24(f) of the Charter.
(b) A defendant can only testify once.
(c) A defendant who wishes to testify on his own behalf shall do so during the presentation of his own defense. The right of Defense Counsel and of the Prosecution under Article 24(g) of the Charter to interrogate and cross-examine a defendant who gives testimony shall be exercised at that time.
(d) A defendant who does not wish to testify on his own behalf but who is willing to testify on behalf of a co-defendant may do so during the presentation of the case of the co-defendant. Counsel for other co-defendants and for the Prosecution shall examine and cross-examine him when he has concluded his testimony on behalf of the co-defendant.
(e) Subparagraphs (a), (b), (c), and (d) do not limit the power of the Tribunal to allow a defendant to be recalled for further testimony in exceptional cases, if in the opinion of the Tribunal the interest of justice so requires.
7. In addition to the addresses of each defendants counsel under Article 24(h), one counsel representing all the defendants will be
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permitted to address the Tribunal on legal issues arising out of the Indictment and the Charter which are common to all defendants, but in making such address he will be held to strict compliance with Article 3 of the Charter. This address will take place at the conclusion of the presentation of all the evidence on behalf of the defendants, but must not last more than half a day. If possible, a copy of the written text of the address shall be delivered to the General Secretary in time to enable him to have translations made in the English, French, and Russian languages.
8. In exercising his right to make a statement to the Tribunal under Article 24(j), a defendant may not repeat matters which already have been the subject of evidence or already have been dealt with by his counsel when addressing the Court under Article 24(h), but will be limited to dealing with such additional matters as he may consider necessary before the judgment of the Tribunal is delivered and sentence pronounced.
9. The procedure prescribed by this order may be altered by the Tribunal at any time if it appears to the Tribunal necessary in the interest of justice.
Now the Tribunal will deal with the application for witnesses and documents on behalf of the Defendant Goering, and the procedure which the Tribunal proposes to adopt is to ask counsel for the defendant whose case is being dealt with to deal, in the first instance, with his first witness, and then to ask Counsel for the Prosecution to reply upon that witness and then, when that has been done, to ask defendant's counsel to deal with his second application for a witness, and then for the Prosecution Counsel to deal with that witness; that is to say, to hear the defendant's counsel and the Prosecution Counsel upon each witness in turn.
That procedure will probably not be necessary when the Tribunal comes to deal with documents. Probably it will be more convenient for defendant's counsel to deal with the documents together and prosecuting counsel to deal in answer to the documents together. But, so far as the witnesses are concerned, each will be taken in turn.
I call upon Dr. Stahmer.
DR.MARTIN HORN (Counsel for Defendant Von Ribbentrop): Before we go into these details I ask to be informed why the Court has the intention of treating the Defense in a fundamentally different manner from the Prosecution. In Article 24 of the Charter it is stated that the Tribunal will ask the Prosecution and the Defense whether they will submit evidence to the Tribunal and if so, what evidence. This decision has so far not been applied by the Tribunal in relation to the Prosecution. I am glad that today the Defense has been granted the possibility to name to the Tribunal
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those documents and witnesses, which up to now have been difficult to obtain. I am prepared today to tell the Tribunal the essential points which establish the necessity of calling the witnesses and the relevancy of the documents. I ask the Court, therefore on the basis of past practice, not to allow the Prosecution to take part in judging whether a document should be considered relevant or not. As Defense Counsel I am convinced that I would have to submit to a sort of precensorship by the Prosecution which would impair the unity of my entire evidence. I may point out that the protests of the Defense have constantly been postponed with the remark that the Defense would be heard about these points at a later date. If selection of evidence, on the basis of objections by the Prosecution, takes place here today the danger arises that protests which have been postponed will not be able to be treated later. For the reasons stated, therefore, I request the Court to proceed according to past practice, and decide as to the right of the Prosecution to protest against the procurement of evidence.
THE PRESIDENT: Will Counsel for Ribbentrop come back to the rostrum? The Tribunal is not altogether clear what motion you are making.
DR. HORN: I propose that the Prosecution should not, at this stage of the Trial, be entitled to make a decision about the calling of witnesses and the relevancy of documents.
Mr. President, I should like to plead further on that point. I meant by making a decision that the Prosecution should not yet, at this time, have anything to say about the question of the admissibility or non-admissibility of evidence.
THE PRESIDENT: The Tribunal considers that your motion cannot be granted, for this reason: It is true that the Defense is being asked to apply for witnesses and documents now, in accordance with Article 24(d).
One principal reason for that is that the Tribunal has got to bring all your witnesses here. The Tribunal has been, for many weeks, attempting to find your witnesses and to produce them here, and to produce the documents which you want. The relevancy of those witnesses and of those documents has got to be decided by the Tribunal; but it is obvious that Counsel for the Prosecution must be allowed to argue upon the question of relevancy, just as counsel for the defendants have been allowed to argue upon the relevancy of every witness and every document which has been introduced by the Prosecution.
Exactly the same procedure is being adopted now for the defendants as has been adopted for the Prosecution, with the sole exception that the defendants are being asked to make applications for
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the witnesses and documents and to deal with the matter at one time, rather than to deal with it as each witness or document is produced. The reason for that is that the Tribunal, as I have stated, have got to find and bring the witnesses here for the defendants and also to produce the documents.
Your motion was that the Prosecution should not receive any possibility to decide on the calling of witnesses. The Prosecution, of course, will not decide upon it; the Tribunal will decide upon it. The Prosecution must have the right to argue upon it, to argue that the evidence of a certain witness is irrelevant or cumulative, and to argue that any document is not relevant.
And I am reminded that all of these documents have got to be translated for the purposes of the Tribunal.
DR. HORN: Mr. President, many of the defendants' counsel, myself included, have, so far, not been able to question decisive witnesses for the purpose of obtaining information. Therefore, in decisive points we often do not even know exactly what a witness can prove.
If, now, we already have to deal with the Prosecution before we know definitely how far it is desirable to fight or not to fight for a witness, we are in an essentially worse situation than the Prosecution, which, whenever the defendants' counsel made protests, knew exactly for what their witness or their evidence was important. In this regard the Defense is, for the most part, in a considerably worse situation, and I am of the opinion that this situation will become even worse if here, besides the Tribunal, the Prosecution can also make protests against the evidence at this stage of the Trial.
THE PRESIDENT: It is true that it is impossible to decide finally upon the admissibility of any piece of evidence until the actual question is asked; and for that reason the Tribunal has already, in deciding provisionally upon the application for witnesses, acted in the most liberal way. If it appears that there is any possible relevancy in the evidence to be given by a witness, they have allowed that witness to be alerted. Therefore, if there is any witness whose evidence appears to be, by any possibility, relevant, the Tribunal will allow that witness, subject, of course, to the directions of the Charter to hold the Trial expeditiously.
Subject to those limitations, the Tribunal will allow any witness to be called whose evidence appears to be possibly relevant. That is all the Tribunal can do because, as I have already stated, it is the Tribunal who has to undertake the difficult task of securing these witnesses for the defendants, who cannot secure them themselves.
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DR. HORN: Thank you.
THE PRESIDENT: Now, Dr. Stahmer.
DR. OTTO STAHMER (Counsel for Defendant Goering): Mr. President, I do not wish to repeat, but I believe that the objection of Dr. Horn has not been understood quite rightly. Dr. Horn wanted only to complain about the fact that the Defense in no case has been asked previously whether an item of evidence that the Prosecution has presented was relevant or not, but we have always been surprised when a witness was brought in and we had no possible opportunity to make any material objections relative to him.
Insofar as objections against documents were concerned, that is, as to their relevance, the Defense has always been told that for such an objection the time had not yet come for the Defense...
THE PRESIDENT: I beg your pardon, Dr. Stahmer, but you have misunderstood. The Defense have never been told that objections to the admissibility of documents could be left over until later. Every objection to the admissibility of a document has been dealt with at the time. Observations upon the weight of the document are to be dealt with now, during the course of the Defense. I don't mean today, but during the course of the Defense.
There is a fundamental distinction between the admissibility of a document and the weight of a document, and all questions of admissibility have been dealt with at the time.
DR.STAHMER: Mr. President, I fully understood that distinction. Nor did I want to say that objections against admissibility were turned down, but rather objections against relevancy.
THE PRESIDENT: Objections to the relevancy of documents -- that is to say, their admissibility -- that is the governing consideration under this Charter as to the admissibility of documents. If they are relevant, they are admissible. That is what the Charter says. And any objection which has been made to documents or to evidence by defendants' counsel has been heard by the Tribunal and has been decided at the time.
Dr. Stahmer, the Tribunal wishes me to point out to the defendants' counsel that they have had long notice of this form of procedure, long notice that under Article 24(d) they were going to be called upon to specify or name their witnesses and the documents which they wish to produce, and to state what the relevancy of the witnesses and the documents would be.
It seems to the Tribunal obvious that that procedure is really necessary when one remembers that it is for the Tribunal, with very great difficulty and at considerable expense, to find these witnesses and to bring them to Nuremberg, and to find the documents, if possible, and to bring them to Nuremberg.
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Now, as to your or to Dr. Horn's objections to the procedure which has been adopted with reference to the Prosecution, it is open to defendants' counsel at any time, if they wish to do so, to apply to strike from the record any document which they think ought not to have been admitted. One of his objections, or possibly your objection, appeared to be that defendants' counsel have not had sufficient time to consider whether a particular document or a particular witness was relevant, and therefore admissible. You have had ample time now to consider the point and if now you wish to apply to strike out any document or to strike out any evidence, you will make that application in writing and the Tribunal will consider it.
As I have said, the object of the procedure is to help the defendants and their counsel. And it is a necessary procedure because the defendants are unable, naturally, and defendants' counsel are unable, naturally, to procure the attendance of witnesses here in Nuremberg, and in some cases to procure the production of documents.
In order that we should do so, on their behalf, it is necessary that we should know whom they want to have produced here, what documents they want to have produced here; and, in order that time should not be wasted and money should not be unduly wasted, it is necessary to know whether the witnesses and the documents have any shadow of relevancy to the issues raised.
DR.STAHMER: Then I shall begin with the naming of those witnesses whose interrogation before the Tribunal I consider necessary.
I name first General of the Air Force Karl Bodenschatz.
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 Goering 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 Goering met with English negotiators in order to bring about, with them, the possibility of a peaceful solution of
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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 Goering during the past years, particularly 1936 to 1939, from which it can be seen that the intention of the Defendant Goering 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 Goering when he first heard from Hitler that Hitler intended to attack Russia.
Finally he is also informed about the social attitude of Goering 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 a Nuremberg. Uiberreither is to offer the following evidence. He can give information about a speech....
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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 Goering, 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 Goering, 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.
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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 or 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 cat 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 a the Tribunal agrees, Mr. Dahlerus, as far as I can deduce from his letter, will certainly be ready to come personally.
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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 Goering 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
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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
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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 Goering. Therefore, if we have a statement, we should be most ready to consider it, and, if possible, agree on the point.
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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.
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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 Goering 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 Goering 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 Korner.
DR. STAHMER: State Secretary Paul Korner, who is here in Nuremberg in the courthouse prison.
SIR DAVID MAXWELL-FYFE: There is no objection on the part of the Prosecution.
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THE PRESIDENT: Dr. Stahmer, in our documents it is stated that the suggested witness Paul Korner 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: Korner 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 Goering 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
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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?
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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 Korner? I was just told that Koller was Chief of Staff of the Air Force, and Korner 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 Korner. 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,
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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 Goering'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;
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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 Goering'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
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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?
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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
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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?
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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.
TEE 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.]
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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 occulted 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.
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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
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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 Goering, 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.]
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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 MAXWEL-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.
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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
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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.
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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 Fraulein Ingeborg Berg, a former secretary to the Defendant Rudolf Hess.
SIR DAVID MAXWEL-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, prima 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.
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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
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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.
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As to the question of whether the Auslands-Organisation, the Volksbund fur 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 fur 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
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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 Fuehrer. 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 Fuehrer. 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.
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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.
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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.
Thy; 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
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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.
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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, Fraulein Margarete Blank. Consequently not 2 to 7, but 3 to 7.
May I make the following explanation: Fraulein 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 Fraulein 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 Fraulein Blank, I can say that she is in an internment camp near Nuremberg, in Hersbruck.
THE PRESIDENT: Did you mean that Fraulein 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 Fraulein 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 GruppenFuehrer 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
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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 firsthand 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.
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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
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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, HaIder 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
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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.]
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