SIXTY-SEVENTH DAY

Monday, 25 February 1946

Morning Session

THE PRESIDENT: Dr. Horn, you dealt with Dahlerus last, I believe.

DR. HORN: That is right, Mr. President.

As the next witness, I ask the Tribunal to call General Koestring, former military attache at Moscow, and at present in prison in Nuremberg. In this case I am willing to forego the personal appearance of the witness if the submission of affidavit will be permitted.

SIR DAVID MAXWELL-FYFE: My Lord, we object to this witness and so Dr. Horn can develop it as far as he desires.

THE PRESIDENT: You object to him?

SIR DAVID MAXWELL-FYFE: We object.

THE PRESIDENT: Go on.

DR. HORN: I wish nevertheless, to ask the Tribunal to call the witness in this case.

Originally, there was a possibility, as I was told, that the witness might be called by the Prosecution. Since this has not taken place, I ask that this witness be approved because he took part in the German-Russian negotiations from August to September 1939 at Moscow and, until the beginning of hostilities against the Soviet Union, remained at that post. The witness, therefore, can tell us about the attitude of authoritative German circles and personalities toward the German-Russian pact. For these reasons I ask the Tribunal to call the witness.

GEN. RUDENKO: As it has already been stated by Sir David Maxwell-Fyfe, the Prosecution objects to the summoning of this witness. I merely wish to define the position of the Prosecution in this case. The fact that the witness participated or was present at the August-September 1939 negotiations is scarcely of interest to the Tribunal. The Tribunal primarily proceeds from the fact of the existence of this agreement and its treacherous violation by Germany. Consequently, the summoning of this witness to describe these negotiations would merely delay the course of the Trial.

DR. HORN: Mr. President, I am sorry, I was not able to understand the answer and the reasoning of the General.

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THE PRESIDENT: Would you repeat, General?

GEN. RUDENKO: Very well. I was saying, with reference to Sir David's protest, on behalf of the Prosecution, against the summoning of this witness, that I wished to explain that the summoning of this witness in regard to his presence at the 1939 negotiations at Moscow was of no interest whatsoever to the Tribunal. The Tribunal proceeds from the facts that this agreement had been concluded in 1939 and had been treacherously violated by Germany.

I consider that the summoning of this witness before the Tribunal is superfluous since the witness in question has no connection whatsoever with the present case.

DR. HORN: I ask the Tribunal's permission to point out that for weeks General Koestring was in prison in Nuremberg at the disposal of the Prosecution. Therefore, I ask the Tribunal to grant him a hearing as a witness for the reasons which I have mentioned.

THE PRESIDENT: The Tribunal will consider the matter. Dr. Horn, the Tribunal does not understand the fact that General Koestring is in prison at Nuremberg is any answer to the objection which is made on behalf of the Prosecution, namely, that the Tribunal is not interested in negotiations which took place in September 1939, but in the violation of the treaty. The Tribunal would like to know whether you have any answer to make to that objection? The only answer you have made up to date is that General Koestring is here in Nuremberg.

DR.HORN: Mr. President, General Koestring is to testify that the pact with Russia was drawn up with full intention of its being kept on the part of Germany and on the part of my client.

I would not like to say anything further on this point at the moment and I ask the Court to call the witness on the basis of this reason.

THE PRESIDENT: Very well, the Tribunal will consider your request.

DR. HORN: The next witness is legation councillor for reports, Dr. Hesse, who was formerly in the Foreign Office in Berlin and now presumably is in the camp at Augsburg.

SIR DAVID MAXWELL-FYFE: My Lord, there is no objection to this witness. I do not know if Dr. Horn wants him in person or if an affidavit would do. The Prosecution do not feel strongly on the matter but they ask Dr. Horn whenever possible to accept an affidavit and they suggest that he might consider it in this case.

DR. HORN: In this case I will be satisfied with an affidavit.

The next witness is the former ambassador in Bucharest, Fabricius, presumably in Allied custody in the American zone of occupation or possibly already discharged from custody.

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SIR DAVID MAXWELL-FYFE: There is no objection in this case. Apparently this witness will speak as to an interview which is already in evidence before the Court and will give a different account of it. Prosecution makes no objection under the circumstances.

THE PRESIDENT: The Tribunal will consider that.

DR. HORN: The next witness is Professor Karl Burckhardt, President of the International Red Cross in Geneva and formerly League of Nations Commissioner at Danzig.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Burckhardt is obviously in a very special position. As President of the International Red Cross he is a person to whom all belligerents, irrespective of country, are indebted; and the point that the Prosecution makes is that if he can speak of evidence coming from Hitler himself, that is if he can prove either by saying that he was informed by Hitler that the Defendant Ribbentrop had interceded; or if he can say he saw letters received by Hitler from Ribbentrop, the Prosecution would have no objection. If he is merely going to say that Ribbentrop told him so, the Prosecution would object.

Therefore, we submit that the reasonable course would be that he should make an affidavit as to his means of knowledge, and if that is done and if the means of knowledge are satisfactory, I should not think for a moment that the Prosecution would do anything but accept the evidence of Dr. Burckhardt.

The second point, we submit, is irrelevant: the question of the results of the English promises of guarantee to Poland on the position in Danzig.

DR. HORN: Aside from the reasons which I have already submitted in my application, I can also say that Professor Burckhardt visited Ribbentrop and Hitler in the year 1943 and therefore can make detailed statements with reference to the reasons which I have mentioned for calling him. That answers the first question by Sir David.

I also agree, however, in this case that Professor Burckhardt submit the necessary affidavit and thus be spared a personal examination.

The next witness is the Swiss Ambassador Feldscher, who was finally, to our knowledge, Ambassador at Berlin.

SIR DAVID MAXWELL-FYFE: I suggest, My Lord, that he comes into the same position as Dr. Burckhardt. He should be dealt with in the same way.

DR. HORN: I agree, Mr. President. The next witness is the former Prime Minister of Great Britain, Mr.Winston Churchill.

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SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Prosecution objects to this application and, with the greatest respect to Dr. Horn, submits that there are no relevant reasons disclosed in the application now before the Tribunal. The first part of it is apparently an account of a conversation which does not touch the facts of this case, and the second part is also a discussion of a conversation which apparently took place some years before the war, between the German Ambassador and a gentleman who at that time was in no official position in England. But what relevancy the conversation has to any of the issues in this case the Prosecution respectfully submits is not only nonapparent but nonexistent.

DR. HORN: Against this statement of Sir David, I want first to point out the following:

Prime Minister Winston Churchill was at that time Leader of His Majesty's Opposition in Parliament. In this capacity we may attribute to him a sort of official position, particularly since he, to my knowledge, as Leader of the Opposition is even paid a salary.

SIR DAVID MAXWELL-FYFE: I am sure that Dr. Horn would be the last person to rely on a point on which he has been misinformed.

Mr. Churchill was not Leader of His Majesty's Opposition at any period and was certainly not from 1936 to 1938, when the Defendant Ribbentrop was ambassador. Mr. Attlee was the Leader of the Opposition. Mr. Churchill was not in office; was a back-bench member of the Conservative Party, independent member of the Conservative Party at that time.

I did not want my friend to be under any misapprehension.

DR. HORN: At any rate, Mr. President, Mr. Churchill was one of the statesmen best known in Germany. This statement, which Churchill made at that time on the occasion of his visit to the embassy, was immediately reported to Hitler by Ribbentrop and was, in all probability, one of the reasons for Hitler's making the statements quoted in the so-called Hossbach document, submitted as Document Number 386-PS, which contains statements and declarations so surprising to the participants and in which the Prosecution saw the first definite evidence of a conspiracy in the sense of the Indictment.

Furthermore, I should like to say that the British Prosecutor, Jones, mentioned that, after the seizure of Czechoslovakia by Germany, people in England and Poland became very concerned. Therefore negotiations between England and Poland were started, and a pact of guarantee concluded.

On the basis of this statement of Churchill which has been mentioned, and those of other important British statesmen, according to

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which England would bring about a coalition against Germany within a few years in order to oppose Hitler with all available means -- as a result of these statements, Hitler became henceforth more keenly anxious to increase his own armaments and to busy himself with strategic plans.

For these reasons I consider Churchill's statement extraordinarily important and I ask that this witness be called.

SIR DAVID MAXWELL-FYFE: I have stated my point, My Lord; I do not think I can add to it.

THE PRESIDENT: The Tribunal would like to have Dr. Horn's observations, which they have only heard through the microphone, in writing on this subject.

DR. HORN: As the next witnesses I name Lord Londonderry, Lord Kemsley, Lord Beaverbrook, and Lord Vansittart. Interrogatories have already been sent out to these witnesses.

SIR DAVID MAXWELL-FYFE: These witnesses are being dealt with by interrogatories and we make no objection to the interrogatories.

DR. HORN: As the next witness I would like to call Admiral Schuster; last address, Kiel.

SIR DAVID MAXWELL-FYFE: We object to the calling of Admiral Schuster. The grounds for his being asked for are that he took part in the negotiations which led to the German-English Naval Treaty of 1935. Apparently the point that is desired to be made is that the treaty was concluded on this defendant's initiative.

The Prosecution submit that that point is irrelevant; that the negotiations before the treaty are irrelevant, and the treaty is there for the Tribunal to take judicial notice of and from which my friend can find any argument which he desires.

But in general, the Prosecution wish to stress that going into negotiations anterior to old-standing treaties would be an intolerable waste of time when there are so many vital issues before the Tribunal.

DR. HORN: In this Trial we are discussing straightforwardly the problem of plans and preparations. In this connection it is certainly not inappropriate to hear evidence as to what the German Government, and especially Ribbentrop, had planned and prepared at that time. This planning and preparations which took place within the negotiations leading to the signing of the naval treaty was carried further than just to the conclusion of that treaty. The treaty was considered by Von Ribbentrop -- and Admiral Schuster can bear witness to the fact -- the first cornerstone in a close treaty of alliance between England and Germany. To make these intentions clear to

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the Tribunal, and thereby the policy which the Defendant Von Ribbentrop pursued, I consider this witness important; and I ask Sir David to modify his position.

SIR DAVID MAXWELL-FYFE: I am afraid I cannot. My colleagues and I have considered this master very carefully and I have put our general position as to pre-treaty negotiations, especially as to treaties of long standing. With the greatest desire to be reasonable, to help Dr. Horn, I am very sorry I cannot, at this point, accede to his request.

GEN. RUDENKO: I would like to complete what my colleague, Sir David, has stated by the following:

Dr. Horn has requested us to justify the arguments of the Prosecution. I believe that there is one fundamental divergence in this matter between the Prosecution and the Defense. The Defense, in calling witnesses, give evidence and try to prove the defendants' endeavors to conclude peace-promoting agreements. We proceed from another fact, namely, the treacherous violation of concluded agreements and the commission of crimes contravening these agreements. And it seems to be quite superfluous to call witnesses to prove that the defendants strove, in view of these considerations, to sign peaceful agreements. The violation and treachery in the fulfillment of these agreements are generally known facts.

THE PRESIDENT: Dr. Horn, in order to test the relevancy of this class of evidence, I should like to ask you this question:

Assume that Ribbentrop did want to make agreements with England and did not wish that Germany should make war on England. What relevancy would that have to the allegation that Germany was planning to make war upon Poland?

DR. HORN: Mr. President, to be able to answer that question decisively as far as the conduct of the Defense is concerned, I would have to go back to the state of all the political and diplomatic affairs of the period previous to the second World War. To explain the reasons for calling witnesses, I would not like to enter into arguments yet on such matters of principle before I have thoroughly scrutinized all the possible evidence at my disposal and formed a definite opinion -- and a basis for my conduct of the Defense. The ruling which the President gave regarding reasons for summoning witnesses -- that the Tribunal will help us to procure the witnesses and the evidentiary material -- I have understood to mean that for the summoning of witnesses, we have only to state reasons which in all probability would be confirmed by the witnesses themselves after preliminary interrogation.

To make it quite clear, I do not wish to prejudice myself.

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THE PRESIDENT: It is a material question to consider in considering what evidence is relevant. But as you do not wish to commit yourself upon the point, you can proceed.

DR. HORN: The next witness is Ambassador Dr. Paul Schmidt, former interpreter at the Foreign Office in Berlin, at this time probably at Oberursel in the interrogation camp.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the next two witnesses, who are grouped together in the application, they are desired to give evidence of the fact that this defendant asked Hitler five or six times for permission to resign. Again I make the point, which I have made several times to the Tribunal, that if these witnesses can give evidence from the Hitler side of these offers, then there would be no objection.

If they merely give evidence of the fact that Von Ribbentrop told them that he had offered to resign, that does not, in the submission of the Prosecution, take it any further. But it may well be that there are letters which went to Hitler which these gentlemen saw; and if that is the purpose of their evidence, then the Prosecution feel that it might be relevant, certainly on the question of sentence; if not, then they would reserve all rights to say whether it was a question of guilt or innocence in view of the provisions of the Charter.

I therefore suggest that the reasonable course would be for both these gentlemen to make affidavits of their means of knowledge and that would deal with the point which I have put to the Tribunal.

THE PRESIDENT: Do you suggest a preliminary affidavit rather than interrogatories? Would not interrogatories be wiser?

SIR DAVID MAXWELL-FYFE: I would agree, My Lord; interrogatories which would cover that point of means of knowledge would be the best thing. I do not think, if I may put it that way, that it would be worth while making two bites at the cherry, if I may use a colloquialism.

DR.HORN: We can talk about the next two witnesses at the same time. I believe I can already say that Sir David will give the same reasons against them as he did against the other witnesses.

SIR DAVID MAXWELL-FYFE: I should have thought, My Lord, that my friend and I could agree that they stand or fall with the Tribunal's decision on Admiral Schuster.

DR. HORN: Then, I would like to forego the calling of these two witnesses, provided the Court will grant me Admiral Schuster.

The next witness is the former Chief Recorder at the Foreign Office, Dornberg, at present most probably interned at Augsburg.

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SIR DAVID MAXWELL-FYFE: Again, with great respect, Herr Dornberg's views on the veracity of Count Ciano, in my submission, are not relevant. If we get into calling witnesses to express their views as to the veracity of or other characteristics of the statesmen of Europe, the Tribunal would embark on a course that might well take a very long time and would not lead to any great results, and I respectfully submit that this is not a class of testimony or a ground of testimony which the Tribunal should entertain.

DR.HORN: Mr. President, with reference to this matter I can say that Ciano, himself, in his diary which has now been made accessible to us, presents this proof -- at least as to the decisive point -- which Mr. Dornberg is supposed to bring; and we shall submit it to the Court at the proper time and -- I believe I can say -- in a conclusive form.

The second point of Dornberg's statement deals with the matter of decoration. The Russian Prosecution has accused Ribbentrop of bartering Siebenburgen for a high Romanian order. For this reason I would like permission to question Mr. Dornberg about this point either here or in the form of an affidavit.

THE PRESIDENT: Yes.

DR. HORN: Next I name Ambassador Schnurre, chief of the commercial policy department of the Foreign Office, present whereabouts unknown, presumably in custody in the British zone.

SIR DAVID MAXWELL-FYFE: With great respect, My Lords, the Prosecution again say that there is no need for a witness to be called to give information that his political chief intended to keep a treaty which he signed. The very grounds that are given for the application seem to me to show that this is really a matter of comment and argument, and we submit that a witness on this point is both irrelevant and unnecessary.

DR. HORN: I ask the Tribunal to permit me this witness, because the fact alone that the witness can testify about the sincerity or insincerity or the intentions of his chief is not so important for me as the fact that, on the basis of participation at the negotiations and preliminary negotiations and his discussions with other important persons about the background of this treaty, he can testify with regard to an important point of the Indictment.

THE PRESIDENT: May I ask you again, with reference to the relevance of this evidence, suppose it were true that in August 1939 the German authorities intended to keep the treaty which was made with Russia, that depended or might have depended upon whether England supported Poland in the war which Germany was about to begin with Poland; and it may very well be that the German authorities intended to keep the treaty with Russia in order to keep

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Russia out of the war with Poland and England. Therefore, how would the intention of Ribbentrop at that time be relevant?

DR. HORN: Mr. President, for determining the criminal facts in this case in order to establish guilt, it is material to know the extent to which the Defendant Ribbentrop, as a human being, strove to keep the treaty; and it is a different question how far he may have been compelled, by political necessity and other forces, to witness how a treaty was not kept in the sense in which it was originally signed.

THE PRESIDENT: You can pass on.

DR. HORN: Ambassador Ritter of the Foreign Office, eventually a liaison man with the OKW; at this time most probably in the internment camp at Augsburg.

SIR DAVID MAXWELL-FYFE: The application for Ambassador Ritter falls into two parts. One raises the point which we have just been discussing with regard to the Russo-German Treaty of 23 August 1939, and I have indicated the view of the Prosecution on that. The second deals with the defendant's attitude with regard to the treatment of Allied airmen. The position at the moment is that I put in a document which was prepared by Ambassador Ritter and another document in which Ambassador Ritter said that the Defendant Ribbentrop had approved the memorandum from the German Foreign Office dealing with the proposals for lynching aviators and handing them over to the SD before they could become prisoners of war and entitled to the rights under the Convention.

If it is desired to say that Ambassador Ritter was wrong in stating that Ribbentrop had approved the memorandum, then, of course, it would be a relevant point. But at the moment these documents are in, and I am not quite clear from this for what purpose my friend wishes him called on the second point. If there is any further purpose, then perhaps Dr. Horn will indicate it.

DR. HORN: Sir David has just stated the reason why I have requested the witness. The witness is supposed to and will testify that Von Ribbentrop was opposed to special treatment of terror fliers -- at least for acts covered by the Geneva Convention -- without previous notification to the signatory powers of that convention.

SIR DAVID MAXWELL-FYFE: Dr. Horn says that he wants to call Ambassador Ritter to contradict the two documents prepared by Ambassador Ritter which are already in evidence. Then I can't make any objection. That is obviously a relevant point, if he is going to contradict his own document.

THE PRESIDENT: Would it be acceptable to Dr. Horn to have interrogatories administered to Ambassador Ritter, or would the

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Prosecution prefer that he should be called, if he is to give evidence of any sort?

SIR DAVID MAXWELL-FYFE: If he gives evidence, the Prosecution would prefer that he should be called, because that is our position. There are two documents in, prepared by this gentleman; and if he is going to contradict them, then I suggest he should come and do it in person.

DR. HORN: I leave it up to the Prosecution.

THE PRESIDENT: Yes.

DR. HORN: The next witness is the former German Ambassador in Oslo, Von Grundherr, at present presumably in Allied custody.

SIR DAVID MAXWELL-FYFE: Again, I don't want to go into detail. The position is that there is a document before the Court signed by the Defendant Rosenberg in which he says that 10,000 pounds sterling a month were given to Quisling through an arrangement with this gentleman. If Dr. Horn wishes to call Herr Von Grundherr to contradict the statement of the Defendant Rosenberg, again I suppose the Prosecution cannot make any objection.

THE PRESIDENT: Yes.

DR. HORN: Regarding the witnesses which I have listed under points 30 to 34, I can limit my statement to the fact that I want to call them to testify that Ribbentrop, from 1933 to 1939, also earnestly and constantly endeavored to bring about close relations with France.

The witnesses, above all M. Daladier, former Prime Minister of France, can give substantive, detailed evidence about these efforts. If the Court should decide that these witnesses, or some of these witnesses, could give their testimony in the form of affidavits, I will submit relevant questions to the Tribunal.

SIR DAVID MAXWELL-FYFE: In the submission of the Prosecution, the grounds stated for calling these witnesses are too vague and general to justify their being called before the Court. When two countries are at peace, the fact that a foreign minister or an ambassador has made statements saying that he hopes the good relations between the two countries will continue, or words to that effect, does not really take us any further; and it would, in the submission of the Prosecution, be a waste of time for witnesses to be called for such a purpose.

Apart from that, the first four witnesses, the Marquis and Marquise De Polignac, and Count and Countess Jean de Castellane, as far as the Prosecution know, have not been in any official position, and there is, therefore, the additional objection that calling people who may be the most admirable people but are in a position of

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general friendship to talk as to what really becomes their view of the state of mind of a defendant, is not evidence which is relevant or which the Tribunal should entertain.

DR. HORN: With these witnesses the Defense wishes to prove exactly the fact that the efforts of Ribbentrop with respect to France went further than normal remarks which could not be called anything more than courtoisie internationale. For this reason I ask that one or the other of the witnesses in this group be granted me.

THE PRESIDENT: Dr. Horn, these witnesses seem to raise the same question as to relevance as I put to you earlier on them.

Assuming that it was the intention of the German Foreign Office to try to keep France out of any war which Germany was preparing to make, what relevance has that got to the question whether she was about to make an aggressive war upon Poland?

DR. HORN: I would like through these witnesses to produce evidence that it was at least not the intention of the Defendant Von Ribbentrop to plan and prepare wars but that he has tried for years to improve relations with Germany's neighboring states.

The Prosecution, Mr. President, accuses my client also of having planned and carried out aggressive aims, war against England and France. If the Prosecution will forego this point, I, of course, can also forego these witnesses.

THE PRESIDENT: The Tribunal will give this the necessary consideration.

DR. HORN: The next witness is Mr. Ernest Tennant of London.

SIR DAVID MAXWELL-FYFE: With regard to this witness, I don't know the gentleman, and I have never heard of him, and the only information which is in the application is that he is a member of the firm of Tennant and Company and a member of the Bath Club, and also that he was well known to the Defendant Ribbentrop. But the matters for which he is sought to be called are surely the acme of irrelevance. It is submitted that the witness can testify that in the early and middle 30's the defendant asked him to bring him in contact with Lord Baldwin, Mr. Macdonald, and Lord Davidson for the purpose of negotiating with the latter toward paving the way to good political relations, aiming at the conclusion of an alliance. In 1936 the defendant was Ambassador to the Court of St. James. Mr. Macdonald had just ceased being Prime Minister in 1935 and was still, I think, Lord President of the Council. Lord Baldwin was then Prime Minister and Lord Davidson, I think, was Chancellor of the Duchy of Lancaster in the same administration. At any rate, he held a comparatively less important office.

But how it can be relevant to the issues before this Tribunal, that at or shortly before that time the defendant asked a gentleman

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of no official position whether he could introduce him to the three gentlemen I have just mentioned, I really suggest, cannot be stated; and I submit that this witness should not be allowed.

DR. HORN: Mr. President, in the naming of witnesses we always come back to the same fundamental question. The Prosecution always raises the question: What can this witness tell us about the fact that Germany did or did not march against Poland, or is to blame for the Polish-German war, inasmuch as the witness comes from an entirely different country and has nothing to do with Poland or Polish affairs?

The Defense is of the opinion, on the other hand, that the entire policy of Germany toward Poland can only be understood within the framework of the whole of European politics. Therefore, the Defense has called for witnesses whom the Prosecution would like to exclude, because they can offer us material for the reconstruction of the large picture. With this in mind, I also ask for Professor Conwell-Evans of London.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal again I have never heard of Professor Conwell-Evans, and he does not appear in the Who's Who, the British publication showing a very large number of the citizens who have certain grades of distinction or hold certain offices. But I would like Dr. Horn to consider this point, which I respectfully put to the Tribunal:

Accepting that every word that is stated in this application with regard to Professor Conwell-Evans was said in Court by Professor Conwell-Evans, I submit that it would not advance the case at all and that the Tribunal would be left in exactly the same position if it had that evidence as it is in at the present moment. After all, the defendant will be able to give evidence himself and to make his own impression on the Tribunal as to his intentions and as to his honesty of mind at various times. The submission of the Prosecution is that the evidence of this gentleman would not help the Trial at all and is not relevant to any issue before the Court.

THE PRESIDENT: Yes.

DR. HORN: As next witness I name Wolfgang Michel, Oberstdorf in Allgau, the witness under Number 38.

SIR DAVID MAXWELL-FYFE: This gentleman is stated to have been a partner in the defendant's former business. According to the application, it is really desired that he should give his views of the defendant's general attitude and state of mind. Again, the Prosecution fail to see to what issue he is relevant; but it may be that it would please the defendant to have affidavits from an old business partner to give his views on the defendant. If that is desired, the Prosecution would be prepared to consider such an affidavit;

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but they really must take up the consistent attitude that a witness of this kind is irrelevant -- a witness who is going to say, "I have known this defendant for 20 years; I have been in business with him; and I have always had a high opinion of him." That, in the submission of the Prosecution, does not touch the issues before this Tribunal and, therefore, is irrelevant. But, as I say, if my friend cares to produce an affidavit, the Prosecution will consider it with the greatest sympathy.

DR. HORN: I would be satisfied, in the case of the witness Michel, with an affidavit.

Mr. President, I would like to come back to the witness listed under Number 5, Legation Counsellor Gottfriedsen.

THE PRESIDENT: One moment. Aren't you going to deal with Number 38? You didn't deal with 37. You are passing that over, are you?

DR. HORN: I believe that the same objections would be raised against him as were raised with reference to the other witnesses. Since I assume that the Tribunal is going to decide in principle about the question whether or not all the related facts should be submitted here, I have left out the naming of this witness and ask the Tribunal for a decision.

THE PRESIDENT: I see. Now you want to go back to Number 5?

DR. HORN: I would like to come back to Number 5, Legation Counsellor Gottfriedsen. Legation Counsellor Gottfriedsen conducted the entire official and private finances of the Defendant Von Ribbentrop for many years.

Ribbentrop has been accused by various members of the Prosecution of enriching himself with objects of art and similar things. About this point Legation Counsellor Gottfriedsen can give decisive evidence which will invalidate these charges. I therefore ask for approval of this witness.

SIR DAVID MAXWELL-FYFE: My Lord, I have just asked Dr. Horn on this point whether he would prefer Herr Gottfriedsen to Herr Von Sonnleitner. I think Dr. Horn says that, if there was a question of choice, he would.

The Prosecution do not want to be unreasonable. I made my general statement that this group of witnesses, of seven foreign office witnesses, ought to be restricted to three. If my friend thinks that Herr Gottfriedsen will be more helpful, especially on this point, I have no objection to the substitution, so long as some limitation is made in the group of witnesses.

THE PRESIDENT: Would it be satisfactory if interrogatories were administered?

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DR. HORN: Yes, Mr. President; in this case I ask for the witness Gottfriedsen.

THE PRESIDENT: Yes.

DR. HORN: My statement on the subject of summoning witnesses is thereby concluded.

DR. STAHMER: I have not named some witnesses because other defendant's counsel had asked for them. Among these is also the interpreter Dr. Schmidt. I likewise have the greatest interest in the questioning of this witness. Schmidt was Goering's interpreter and was present at almost all foreign political negotiations with statesmen. Therefore I also ask for the summoning of this witness and to that extent support the application made by Dr. Horn.

THE PRESIDENT: We will consider that, Dr. Stahmer. We will adjourn now for 10 minutes.

[A recess was taken.]

DR. HORN: Mr. President, may I please bring up one other point having to do with the calling of witnesses?

I have also named a number of the witnesses because I must ascertain when the conspiracy in general begins and when my client could have joined this conspiracy. The Prosecution made things relatively easy for itself as regards setting the time at which the conspiracy begins, by stating in the general Indictment "sometime before 8 May 1945."

Now, if I can call no witnesses with regard to the years 1933 to l938, then I must assume that the Prosecution admits that the Defendant Ribbentrop could not have been a party to the conspiracy at least before 1939. I should like this point of view to be taken into consideration in the granting of witnesses.

SIR DAVID MAXWELL-FYFE: It might be helpful, if I indicated quite generally what Dr. Horn has to meet.

The Tribunal will remember that on the 8th and 9th of January I presented the individual case against this defendant. The first point is the time of Hitler's accession to power in 1933. It is the case for the Prosecution that this defendant assisted in various ways in that accession. After that, he held various positions in close touch with Hitler.

If Dr. Horn will refer to the transcript of my presentation, he will find that there is detailed, with a note of all the supporting documents, the part which his client played in the aggression against Austria, Czechoslovakia, Lithuania, Poland, England, France, Norway, Denmark, Holland, Belgium, Luxembourg, the Soviet Union,

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and finally, the United States and Japan. All these matters are set out with the supporting documents, and a reference to them will show exactly what is alleged against the defendant on that point.

Apart from that, there are four matters under Counts Three and Four which are specially raised.

First of all, the defendant pressed that measures contrary to international law and the conventions should be taken against Allied aviators. Again, the supporting documents are in evidence. Second, there is General Lahousen's evidence as to what the defendant said with regard to the treatment of the population of Poland. Third, there is the defendant's responsibility for putting the various Protectors of Bohemia and Moravia in office with unrestricted powers, which resulted in the crimes against the populations of these areas. Then there is a similar position with regard to the Netherlands.

The third main category is the treatment of the Jews. Again, there is an American official document, the report of Ambassador Kennedy; there is a long Foreign Office statement on the policy towards the Jews; and there is a document showing the preparation for an anti-Semitic congress, of which this defendant was to be an honorary member.

Finally, there is the question of plunder, the evidence given by my Soviet colleague on the Ribbentrop battalions for the collection of plunder, which was given the other day.

I don't think that if Dr. Horn will consider various points, which are practically all collected in the transcript for the 8th and 9th of January, except the last point, he will find that there is any difficulty in deciding the commencement of these allegations or their detailed and concrete constitution.

THE PRESIDENT: Sir David, the Tribunal would like to know whether the Prosecution allege any particular date at which the conspiracy started; and second, they would like to know whether you contend that defendants joining the conspiracy after it started are responsible for the conspiracy.

What the Tribunal would like to know is whether a person who joins the conspiracy after it started would be responsible for acts committed by the conspirators before he joined.

SIR DAVID MAXWELL-FYFE: If I might deal with the questions in order, the position of the Prosecution on the question of time is as set out in Count One of the Indictment. The Prosecution say that the Nazi Party was the core of the conspiracy and that it was an essential part of the conspiracy that the Nazi Party should obtain political and economic control of Germany in order that they might carry out the aims set out in Articles 1 and 2 of the Nazi

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Party program. That part of the conspiracy started with the emergence of the Nazi Party as a force, in German politics and was fully developed in January 1933. At that time it was the aim of the Nazi Party to secure the breaches of the Treaty of Versailles and the other matters set out in these articles, if necessary by force.

But, as is stated in the statement of offense under Count One of the Indictment, the conspiracy was not static; it was dynamic. And, in 1934, after Germany left the League of Nations and the Disarmament Conference, the aggressive war aspect of the conspiracy increased in momentum.

It is the case for the Prosecution that from 1935, when conscription was introduced and the Air Force came into being, through 1936 when the Rhineland was reoccupied, that the securing of Germany's objectives -- the objectives of the Nazi Party -- if necessary by aggressive war, became a stronger, clearer, and more binding aim.

The position is crystallized by the meeting on the 5th of November 1937, when Hitler declared that Austria and Czechoslovakia would be conquered at the earliest opportunity. That was succeeded by the acquisition of Austria in March 1938, and the Fall Grun against Czechoslovakia, which originated in May 1938, to be carried out before October.

From that time the Prosecution say that the plan of aggressive war followed the well-known and clear technique of attacking one country or taking aggressive measures against one country, and giving assurances to the country that was next on the list to be attacked.

From that time the succession and procession of aggressive wars takes a clear course, which I have just mentioned in outlining the accusation of aggression against the Defendant Ribbentrop. I may summarize it by saying that the Prosecution submit that the Nazi Party was always engaged in this agreement and concerted action to get control of Germany and carry out its aims but that the aggression crystallized and became clear from 1934 and the beginning of 1935 onwards.

THE TRIBUNAL (Mr. Francis Biddle, Member for the United States): Sir David, I would like to ask you a few questions in connection with this.

First of all you must know either the date when the conspiracy began, or you must not be able to give us the date. Now, is it the contention that the Prosecution don't know when the conspiracy began? If you do know, would you tell us?

SIR DAVID MAXWELL-FYFE: The conspiracy began with the formation of the Nazi Party.

THE TRIBUNAL (Mr. Biddle): And what was that date?

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SIR DAVID MAXWELL-FYFE: 1921.

THE TRIBUNAL (Mr. Biddle): 1921? Now, was the conspiracy to wage aggressive war begun on that date?

SIR DAVID MAXWELL-FYFE: Yes, it was begun in this way that Hitler had said, "I have certain objects, one of them being to break the Treaty of Versailles -- which means also breaking the treaty of friendship with the United States which has the same clauses -- and I shall attain these objects, if necessary by using force." That was always one of the beliefs and aims of the Party.

Now, if people agree to commit an illegal act, or a legal act by illegal methods, that is, ipso facto, the committing of the offense of conspiracy. Conspiracy is constituted by the agreement, not by the acts carrying out the agreement. Therefore, in that way the conspiracy starts in 1921. But, as Mr. Justice Jackson made clear in his opening and as I have repeated this morning, the aims -- and more particularly the methods by which the conspirators sought to achieve these aims -- grew and acquired particular forms as the years went on. They appear to have acquired the special form and to have decided on the method of breaking the Treaty of Versailles in 1934 and bringing that to fruition in 1935.

I am not seeking to avoid answering the question of the learned American Judge; but I am putting, in summary form, exactly what is stated in both the statement of offense and the particulars of offense under Count One, and I hope that I will not be thought to be avoiding the question. I am not doing that. I am trying to put it in the clearest and most accurate language.

THE TRIBUNAL (Mr. Biddle): Well, I wouldn't ask you, were I clear about the matter in my own mind, Sir David. Let me ask you a few more questions.

The conspiracy to commit Crimes against Humanity -- was that begun in 1921?

SIR DAVID MAXWELL-FYFE: To the extent that a general readiness was adopted to use all methods, irrespective of the rights, safety, and happiness of other people, it was commenced with the start of the Nazi Party. Ruthlessness and disregard for the rights, and safety, and happiness of others was a badge of the Nazi Party program, insofar as the rights and happiness of others might interfere with their aims, from the very start.

Again, the translation of that into practical methods developed as the years went on, and in a period well before the war -- Mr. Biddle will not put it against me that I should remember exact documents in an answer straight off the rule to his question, but well before the war -- there will be found again and again in the speeches of Hitler to his associates that utter ruthlessness and disregard for

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non-German populations should be employed. That is the foundation of the War Crimes and Crimes against Humanity, and it was initiated and grew in the method which I have stated.

THE TRIBUNAL (Mr. Biddle): Did you answer the President with respect to the question of whether the conspirators joining later became responsible? If that were true, then this defendant would be responsible for acts running back to 1921.

SIR DAVID MAXWELL-FYFE: There are two legal conceptions which have to be borne in mind in considering that point. I can only speak with knowledge on the law of England, but I understand that the 1aw of the United States is very much the same.

In England there is a common law offense of conspiracy. There are also certain statutory offenses, but there is a common law offense of conspiracy. The gist of that offense is, as I have already stated, entering into an agreement to commit an illegal act or a legal act by illegal means. As far as a conviction for conspiracy per se is concerned, there is no doubt about the law of England. If someone joins a conspiracy at a late state, a conspiracy to do any illegal act, he can be convicted of conspiracy to do that act however late he joins.

The usual analogy, with which I am sure the learned American Judge is familiar, is that of a stage play. The fact that a character does not come in until Act 3 does not mean that he is any the less carrying out the design of the author of the play to present the whole picture which the play embraces. It is a very useful analogy because it shows the position. That is one aspect of the law, and on that there is no doubt at all.

The other aspect of the law is as to how far those who act in consort to commit a crime are responsible for each other's acts, that is, irrespective of the substantive offense of conspiracy. If one may take an example -- a highly fantastic one but I think it raises the point -- assume that you had a conspiracy on the part of road operators to wreck railway trains, and a number of road operators agreed in December to wreck a train on the 1st of January and to wreck a further train on the 1st of February. Between the 1st of January and the 1st of February, another road operator joins the conspiracy. I hope I have got rightly the point in My Lord's mind and in the mind of the learned American Judge. Then there is, as far as I can see, some doubt as to whether that road operator would be liable for a murder committed in the wrecking that took place on the first of January.

I hope I have made my point clear. I am postulating someone who joins a conspiracy on the 15th of January, after the first wrecking has been carried out during which someone has been

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killed, and therefore those who consorted with regard to the first wrecking are guilty of murder. But as to the person who joins after that, there is some doubt as to whether he acquires retroactive responsibility. In English law it would appear to be at least doubtful -- it certainly is arguable that in American law he would, as I have been told the decision.

THE TRIBUNAL (Mr. Biddle): I think you have made that very clear, Sir David, but what I am getting at is what the Prosecution claim in this case.

SIR DAVID MAXWELL-FYFE: I am very sorry if I have been theoretical, but it has been rather a difficult point, and I wanted to relate it to the law with which I am most familiar.

With regard to the present case, the Prosecution say that the defendants do become responsible for the consequences of acts done in pursuance of the conspiracy. It is rather difficult to speak entirely in vacuo in the matter; but if one may take, for example -- again I speak from memory -- the Defendant Speer, who comes on the scene rather late, if my recollection is right, he then becomes minister for production and armaments and makes the demands for the slave labor which were fulfilled by the Defendant Sauckel.

In the submission of the Prosecution, there would not be any difficulty in convicting the Defendant Speer on all counts, assuming that the Tribunal accepted the evidence of the Prosecution. By his actions, he has conspired to commit a Crime against Peace; he has joined and entered into the conspiracy to carry on aggressive war; he has taken part in the waging of aggressive war by making the demands for the slave labor; he has instigated a war crime, namely the ill-treatment of populations of occupied countries; and also, by instigating and procuring the action of the Defendant Sauckel, he has committed Crimes against Humanity in that he has participated in actions which are condemned by the criminal law of all civilized countries; and probably -- I am speaking from memory now -- these actions have taken place in countries where it is arguable whether they were strictly occupied countries after an invasion, as in Czechoslovakia.

On the method in which our Indictment is drawn, there is no difficulty, the Prosecution submit, in convicting a defendant who emerges in evidence at a later date on each of the counts.

THE TRIBUNAL (Mr. Biddle): Just one more question and then I am through. You understand I am asking these questions only in performance of what we are doing to determine what witnesses should be called, and therefore the year 1921 as the beginning of the conspiracy becomes a year obviously not remote in time when we consider witnesses. Would that not follow?

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SIR DAVID MAXWELL-FYFE: A year not...?

THE TRIBUNAL (Mr. Biddle): Not remote in time with relation to the conspiracy.

SIR DAVID MAXWELL-FYFE: No, it is part of the particular Indictment.

DR. HORN: Mr. President, may I make some brief remarks in this connection?

I have based myself on the general Indictment as regards the time of the conspiracy. The general Indictment states simply and solely that the definitive point of time which one can take as the start of the conspiracy is any time before 8 May 1945.

The Chief Prosecutor of the United States, in his opening statement, described the Party program, in the form in which it was framed in '21 and revised, I believe, in '25, and characterized it as legitimate and unimpeachable -- according to the German translation -- insofar as these aims were not to be attained by war.

Now, assuming that the Party leadership was to pursue these objectives by war, it is, first of all, not clear with what point of view these goals were set; and the Defense as well as the Prosecution must prove that from this time on these aims were to be attained through war. Furthermore, it can hardly be denied that only a very few people, and perhaps only one person, had knowledge of war plans.

Now, as regards the various defendants, as well as my own client, the times at which they came into contact with the Party are quite different.

First, they were ordinary Party members, so they had consequently to assume, as the Chief Prosecutor did, that the Party program of which they had become adherents, was legally unimpeachable.

Now the question arises for the Defense, and above all, for conducting the defense: When did the individual client enter the sphere in which it was known that the aims were to be attained by war; aims which so far he had considered legitimate and unimpeachable, that is, aims which according to his previous assumption, were not to be pursued by recourse to war? Had the Defendant Ribbentrop already entered the circle of conspirators when in 1932 he contacted Party circles? Was he, as Ambassador in London, already "in the know" and thereby a party to the conspiracy; or did he only realize, at the time of the Hossbach document, that the political aims of the Party were to be materialized through war? Or when?

The Defense must be aware of the danger that the defendant will be accused by the Prosecution that he joined the conspiracy

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the very earliest moment he came in contact with the Party and its aims. In this connection I can refer to the words just spoken by Sir David who said that the foundation of the conspiracy was laid in 1921. I ask -- or rather -- is it my task or my duty to prove through witnesses that my client, for instance, up to 1939 was striving for peaceful relations in order to refute that he then already planned or prepared wars or took a decisive part in these plans and preparations?

From this point of view, I ask the Tribunal to weigh the applications for the witnesses and subjects of evidence as set forth in my brief. Furthermore, I expressly maintain that this discussion has not clarified the question: When does the conspiracy start?

SIR DAVID MAXWELL-FYFE: My Lord, I don't want to repeat any general argument. My desire is that Dr. Horn should know what case Ribbentrop has to meet, and I have already stated that, but I want to make it quite clear.

According to the entry in Das Archiv Ribbentrop entered the service of the Nazi Party in 1930, and between 1930 and January 1933 was one of the instruments and vehicles by which the accession of the Nazi Party to power took place. That semi-official publication says that some meetings between Hitler and Von Papen and the Nazis and representatives of President Von Hindenburg took place in his house at Berlin-Dahlem. That is the first point. It is quite clear and it is all set out in the transcript.

The second stage is that he held certain offices between 1934 and 1936 that show that he was an important and rising Nazi politician and negotiator in the realm of foreign affairs. In 1936 he justified the action of Germany in breaking the Versailles Treaty. The defendant justified it before the League of Nations. Therefore, he has to meet that point.

In the same year he negotiated the Anticomintern Pact. He has to explain that.

From that time onwards, there are a succession of German documents, all referred to in the transcript for the 8th and 9th of January, which show exactly the part this defendant played in 10 sets of aggression against 10 separate countries.

I respectfully submit to the Tribunal that that is a perfectly clear case which this defendant has to meet. There is no doubt about it at all.

I have already summarized the case on the War Crimes and Crimes against Humanity. Again Dr. Horn will find it dealt with, with every document mentioned, in the transcript for the 9th of January.

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I respectfully submit that whatever else may be said, the particularity and clarity of the case against the Defendant Ribbentrop is manifest.

DR. HORN: Mr. President, in my presentation of defense against the charges lodged by Sir David Maxwell-Fyfe in his special plea for the Prosecution, I have offered rebutting evidence in answer to these charges. I have, however, not only to confine myself to refuting those charges just mentioned, but I have -- and thus I have to repeat what I just said -- to consider all these charges under the point of view of conspiracy, as according to the submission of the Prosecution, the Defendant Ribbentrop is party to this conspiracy; and the question cannot be avoided: When did the conspiracy start? Taking the supposition that my client took part in a conspiracy, this participation did not start in 1930, as submitted by the Prosecution -- I shall be able to refute this -- but only in 1932; but I should like to prove through witnesses and otherwise that then and later he did not join in any conspiracy.

THE PRESIDENT: Well now, perhaps you will get on with the documents which you want.

SIR DAVID MAXWELL-FYFE: My Lord, with regard to the documents, I have had the opportunity of discussing it informally with Dr. Horn; and I understand that with regard to Documents 1 to 14, Dr. Horn really wants these books as working books which he can read and use and, if necessary, take extracts from to illustrate his argument and point at that time. Now, that is a matter of course to which we make no objection at all. I have consistently taken the view that there should be no objection to any book for working purposes for the Defense.

What I do want to ask is this, that if Dr. Horn or any other Defense Counsel wishes to use an extract from a book when it comes to presenting his case, he will let us know what the extract is and, if necessary, for what purpose he is going to use it. I say "if necessary" because in many cases it will be quite apparent for what purpose, but in some cases it may have special significance; and if they let us know, then any question of relevance can be argued when the matter is produced in court.

THE PRESIDENT: But that seems to me to be necessary in order that the documents should be translated.

SIR DAVID MAXWELL-FYFE: Quite; yes.

THE PRESIDENT: I mean that the part of the book or part of the document which Dr. Horn wants to use should be translated.

SIR DAVID MAXWELL-FYFE: But as far as providing the Defense with working copies, any co-operation that the Prosecution

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can do in that way they will gladly do. That is a matter on which we should be anxious to help.

The last five documents named fall into rather a different category. I haven't discussed these with Dr. Horn; but I respectfully submit -- and it is the united view of the Prosecution -- that complete files of newspapers will be difficult to justify as evidence before the Tribunal, but again, if Dr. Horn wants them for matter of reference, then it just becomes a question of possibility.

I am not sure with regard to these whether it is desired to use them or whether it is merely desired to have them to refer to. I don't know anything about Number 19, the withdrawn number of the Daily Telegraph, but I suppose the Secretariat can make inquiries about that from the proprietors.

DR. HORN: The last item I should like to take up: Now that the Trial has already progressed so far that I now require these documents in order to be able to make use of them for rebutting evidence, may I ask that copies of those newspapers -- it is a matter of three or four newspapers, which are bound in 1-month volumes -- be made available to me as soon as possible with the help of the Tribunal.

THE PRESIDENT: What do you say about the withdrawn number of the Daily Telegraph? You haven't yet indicated why it would be relevant.

DR. HORN: On the 30 or 31 of August 1939, an edition of the Daily Telegraph was withdrawn because it contained extensive details of the contents of the memorandum which the then Reich Foreign Minister, Von Ribbentrop, had read to the British Ambassador, Henderson, in Berlin. It is asserted -- also by the Prosecution -- that Ribbentrop read this note to Henderson so rapidly that the latter was unable to understand the essential points. From the issue of the Daily Telegraph of 31 August 1939, it will thus appear to what extent Ambassador Henderson was in a position to understand Ribbentrop's statements or the oral presentation of that memorandum as Von Ribbentrop read it. I therefore ask that this number of the Daily Telegraph be procured, and I am convinced that the Prosecution is able to obtain this issue by the means at their disposal but not available to us.

SIR DAVID MAXWELL-FYFE: My Lord, this is the first time that I have heard of this withdrawn copy apart...

THE PRESIDENT: The first time you have heard there was any copy withdrawn?

SIR DAVID MAXWELL-FYFE: I have never heard it except from Dr. Horn that there was a copy withdrawn, and I shall probably have to investigate the matter.

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I only want to say one thing, that of course Dr. Horn has just made one point about the question between this defendant and Sir Nevile Henderson. It is the case for the Defendant Goering, as expressed in Dr. Stahmer's interrogatories, that the Defendant Goering had caused the contents of this memorandum to be given unofficially to Mr. Dahlerus behind the Defendant Ribbentrop's back. That is the case which he is making in the interrogatories, so that it by no means follows that Sir Nevile Henderson's account of the interview was wrong, even if an account of the document had come out.

I don't want to make a point of the memory of Sir Nevile, but shall investigate this matter, which I have just heard now for the first time.

DR. HORN: May I add for the fuller information of the Tribunal that the Defendant Goering made the memorandum available to Ambassador Henderson only at a considerably later date. It is, therefore, of decisive importance when and whether Henderson acquired knowledge of this memorandum and whether it happened in good time so that he could still communicate it to the Polish Government within the proper time.

May I ask therefore for the procurement of this most important edition of the Daily Telegraph.

THE PRESIDENT: Thank you, Dr. Horn.

We will continue with the evidence against the Defendant Keitel.

DR. NELTE: Mr. President, may I be allowed to make a remark preliminary to the discussion about the evidence submitted for Defendant Keitel. I hope the discussions about the various applications for evidence will thereby be considerably shortened. From my written application you will see that in respect to the majority of the witnesses one main subject of evidence recurs again and again, namely, the position of Defendant Keitel as Chief of the OKW and in his other official functions, his personality, particularly, also his relations to Hitler, and the clarification of the chain of command within the Armed Forces.

I shall present evidence that the idea of the public and the Prosecution regarding the personality of the Defendant Keitel, his scope, and his activities is incorrect. No name has been so frequently mentioned in the course of this proceeding as that of the Defendant Keitel. Every document which dealt in any way with military matters was identified with the OKW, and the OKW, in turn with Keitel. The defendant believes, and I think with some justification...

THE PRESIDENT: The Tribunal appreciates the general points which you will probably want to argue on behalf of the Defendant

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Keitel when you come to make your final speech, but it does not appear to the Tribunal to be necessary that you should do so now.

DR. NELTE: I mention it only to make possible a comprehensive appraisal of all witnesses offered for the presentation of evidence. I think Sir David shares this opinion with me -- he already discussed it with me on Saturday -- and it was my intention to expound in a preliminary way the subject of evidence which otherwise had to be presented in five or six different cases.

THE PRESIDENT: Do you mean, Dr. Nelte, that you will be able to deal with all your witnesses in one series of observations?

Could you help us, Sir David?

SIR DAVID MAXWELL-FYFE: I think I can help.

Apart from the witnesses who are codefendants that are mentioned by Dr. Nelte, whom of course the Tribunal has already provided, Dr. Nelte asks for Field Marshal Von Blomberg, General Halder, General Warlimont, and the Chief Staff Judge of the OKW, Dr. Lehmann. The Prosecution have no objection to these witnesses, because they are called to deal with the position of the Defendant Keitel as head of the OKW.

With regard to the witness Erbe, who is, I think, a civil servant called on a specific point as to his position in the Committee for Reich Defense...

THE PRESIDENT: Have the interrogatories already been granted?

SIR DAVID MAXWELL-FYFE: Yes; we have always said that interrogatories would be sufficient and he should not be called as an oral witness.

Then with regard to the next witness, Roemer, whom Dr. Nelte wishes to call to say that the decree for the branding of Soviet Russian prisoners of war was announced by mistake and retracted at once on the order of Keitel, that is obviously relevant to one matter in the case, and we don't object to that.

We don't object to General Reinecke, who is called on various matters relating to prisoners of war.

With regard to Mr. Romilly, so long as it is confined to interrogatories which have been allowed, and he is not called orally, we have no objection.

My friend, M. Champetier de Ribes, will have a word to say about Ambassador Scapini. I have asked him to deal with that matter in French.

Then we come to two witnesses, Dr. Junod and Mr. Petersen. At the moment the Prosecution cannot see how these witnesses are needed in addition to General Reinecke. And of course they would object if the purpose of the testimony is to show that the Soviet

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Union did not treat its prisoners of war properly. If that is the purpose, they would object.

Then the calling of Dr. Lammers has been granted by the Tribunal.

Then finally, there are three witnesses who are all called in order to show that at discussions between Hitler and the Defendant Keitel, two stenographers had to be present. The Prosecution do not regard that as a very vital part of the case, and if Dr. Nelte will produce an affidavit from one of these gentlemen, then the Prosecution are not in a position -- and do not desire -- to dispute the point. Frankly, if I may say so, and with the greatest respect, we are not at all interested in that point, and therefore will be content with an affidavit if produced.

If I might summarize -- and I hope I am merely trying to help Dr. Nelte -- the only matters which, as far as the Prosecution are concerned, require further discussion is the matter of what the French Delegation will have to say about Ambassador Scapini, and my objection to Dr. Junod and Mr. Petersen, and my suggestion as to an affidavit for the last three witnesses. There is very little between us, if I may say so, with respect to Dr. Nelte's witnesses; on the whole they seem to the Prosecution to be obviously relevant and in that case we make no objection.

There is one rather sad fact with regard to the witness Blomberg, of which I think Dr. Nelte has been informed. I understand that Field Marshal Von Blomberg is very ill at the moment and cannot be brought into court, so that I am sure, Dr. Nelte, the Defendant Keitel will be the first to accept some method of getting his evidence which will not necessitate that fact.

DR. NELTE: I thank Sir David for his kindness, by which my task has been made easier.

I should like to state in addition that in respect to the witness, Dr. Erbe, I shall put written questions. To the witness Petersen I have already submitted written questions, and on the answers received depends whether I shall call him in person. As to witness Junod, I believe I may say that his examination is relevant because the Soviet Prosecution has submitted that an offer to apply the Geneva Convention had been rejected by Keitel. Dr. Junod is to be examined as a witness that, by order of the OKW Department of Prisoners of War, he contacted the Soviet Union in order to secure the application of the Geneva Convention but that this could not be brought about. I believe that if only General Reinecke is to be examined as a witness on this question, it could perhaps be objected that he, as chief of the Department of Prisoners of War, cannot give sufficient testimony. Neither can General Reinecke testify to what Dr. Junod actually did. Consequently I ask that

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this witness be approved. As far as the stenographers are concerned, I ask approval to submit an affidavit.

As to Ambassador Scapini, I should merely like to point out that he was the permanent representative of the French Vichy Government and that he was particularly concerned with the question of caring for prisoners of war in Germany. I believe that this is adequate reason for considering him relevant. To be sure, I did not know his address, and hope that the French Prosecution can help me in that regard.

M. AUGUSTE CHAMPETIER DE RIBES (Chief Prosecutor for the French Republic): We see no objection to hearing the former Ambassador Scapini, if his testimony can in our opinion have the slightest bearing on the search for truth; but the very reasons which Dr. Nelte gives for the calling of this witness seem to me to prove the complete absence of relevance of this testimony. The former Ambassador Scapini, says the honorable representative of the Defense, could point out and say that he freely exercised his control in the prisoner-of-war camps and moreover that these prisoners of war had a representative, but this we are quite willing to grant to the Defense. It is perfectly true that Germany had consented to allow the former Ambassador Scapini -- who we know was wounded in the war of 1914 and blinded -- to visit the camps of prisoners and hear the French prisoners of war though he could not see them.

But the question is not to find out whether the Germans had been willing to allow a blind inspector to visit the camps. The only question presented by the Indictment is whether, in spite of the visits of this inspector and in spite of the presence of a special representative in the camps, there did not occur in these camps acts contrary to the laws of war.

On this point the former Ambassador Scapini could surely give no answer, for obviously nothing happened in his presence. This is why the French Prosecution considers that the testimony of the former Ambassador Scapini would shed no light in this search for truth.

DR. NELTE: It was not known to me that Ambassador Scapini was blind. Not he himself, but rather the delegation of which he was head, made regular inspections of the prisoner-of-war camps for French soldiers. It is certain that in prisoner-of-war camps things happened which violated the Geneva Convention, but the question at issue here is that the Defendant Keitel and the OKW, as the supreme authority, did -- or at any rate, tried to do -- all that they, as highest authority, had to do.

The OKW had no command jurisdiction in the individual camps. It had only to issue instructions as to how prisoners of war were

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to be treated and had to permit the protecting powers to visit the camps.

THE PRESIDENT: Would interrogatories be satisfactory, supposing we thought it proper to administer them to Mr. Scapini?

DR. NELTE: An interrogation in Nuremberg? Could Ambassador Scapini be heard in Nuremberg?

THE PRESIDENT: I was asking whether interrogatories would be satisfactory. I imagine Mr. Scapini is not in Nuremberg. Written interrogatories, I mean, of course, where I have mentioned them.

DR. NELTE: I ask for a ruling on whether the written questions which I first should like to put will be sufficient or whether another ruling will be necessary. So I assume that first I shall interrogate Ambassador Scapini in writing and on his answer it will depend whether . . .

THE PRESIDENT: Yes, in writing. Will that be satisfactory to you, M. Champetier de Ribes?

M. CHAMPETIER DE RIBES: Yes, that will be quite satisfactory.

THE PRESIDENT: I think perhaps we might adjourn now, Dr. Nelte, until a quarter past 2.

[The Tribunal recessed until 1415 hours.]

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Afternoon Session

THE PRESIDENT: I think, Dr. Nelte, you had really finished with your witnesses, had you not?

DR. NELTE: Yes, I think so. I must only reserve the right on what I may have to state, after the Soviet Prosecution have finished presenting their case -- whether I still may wish to call this or that witness. As to the documents I should like to put a few questions which are of particular interest for me -- rather for the Defendant Keitel.

THE PRESIDENT: Certainly.

DR. NELTE: The Tribunal knows my main subject of evidence. In order to prove that in many cases the Prosecution is wrong in assuming the OKW and the Defendant Keitel to be responsible, I can refer to a great many documents which have been presented by the Prosecution.

I take it that these documents are not to be submitted by me as evidential material, as they have already been put in. I ask the Tribunal for examination of these documents and for a ruling that in my pleadings on behalf of the defendant I may refer to such documents without having to submit or quote them.

I should like to add that the Tribunal, having been informed about the structure of the Armed Forces or parts of them and about the competencies of the various commands, will itself be able to judge which of the documents submitted are not suitable for supporting the allegations of the Prosecution regarding the responsibility of the Defendant Keitel.

I am also convinced that the Tribunal, in its findings, will examine carefully any document relevant to the question of guilt, even if the Defense does not submit such documents, and even if the Defense cannot submit a comprehensive presentation in view of the extremely large number of documents -- there are thousands relating to the Defendant Keitel -- and even if the Defense cannot deal with all these documents in the final speeches.

Furthermore, I should like to submit to the Tribunal another question which is important for the presentation of evidence on behalf of the Defendant Keitel and which is of great importance.

During the session of 1 February 1946, the French Prosecutor made the following statement, and I quote:

"Chapter 4 and the last will bear the heading, 'The Administrative Organization of Criminal Action'.... for the fourth chapter I might point out that the French Delegation examined more than 2,000 documents, counting only the original German documents of which I have kept only about 50."

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According to the opening address of the United States Chief Prosecutor, there can be no doubt that these 50 documents were selected merely from the point of view of incriminating the defendant. On 11 February, if I remember correctly, I addressed myself to the French Prosecution with a request to place at my disposal for examination the remaining 1,950 documents, which the French Prosecution did not use.

To date I have received no answer. The Tribunal will appreciate the difficulties of my position. I know there are documents there which I am sure contain also exonerating facts. Yet I am not able to specify these documents. I beg the Tribunal, therefore, for a ruling in this matter -- that the Prosecution should place at my disposal those documents for my perusal.

THE PRESIDENT: With reference to these particular documents that you are asking for, are you going to say anything about them?

DR. NELTE: I do not know the contents of these documents. I know only that the French Prosecution have these 2,000 documents . . .

THE PRESIDENT: Well, if you wish to deal with that now, I will ask the French Prosecutor to answer what you have said.

DR. NELTE: If Your Honor please, I leave it to the Tribunal whether they wish to examine this question or whether it can be dealt with now.

THE PRESIDENT: Well, I think we had better hear from the French Prosecutor now.

M. CHARLES DUBOST (Deputy Chief Prosecutor for the French Republic): A certain number of documents of doubtful origin were in our hands at the time that we were beginning to prepare our prosecution. We have eliminated all documents which could not bear serious critical examination. We undertook a critical task and rejected all those that were considered to be insufficient proof. At the end of this task about fifty documents remained which have been referred to by my colleagues and which appeared relevant. These 50 Documents have, moreover, not all been accepted by the Tribunal, which has rejected some, and if I remember rightly, 3 or 4 of whose origin we were not quite sure. In these conditions, it is absolutely incorrect to say that we have kept 1,950 documents from the Defense.

We handed over to the Court, and therefore to the Defense, the 50 documents which in themselves seemed to us to have sufficient probative value.

If I understand this request of the Defense they wish the Court to ask to have handed to them documents of which some have been rejected by the Court itself as not having sufficient probative value

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or as not being sufficiently authenticated. The Tribunal will decide whether this request should be granted. As far as I am concerned, I must oppose this application with all my might because it would mean taking into account documents which did not offer a sufficiently authentic character for the examination we made, and which the Tribunal itself also made when we submitted to it some of these documents.

THE PRESIDENT: Yes, but M. Dubost, the position is this: There were a large number of documents which the Counsel for the French Prosecution said that they had examined; and the French Prosecution, in the exercise of their discretion, thought it unnecessary to refer to more than a certain number of them; but it is only the French Prosecution which has exercised their discretion about those documents, and what Dr. Nelte is asking is to see them for the purpose of seeing whether there is anything in the documents which assists his case. Would the French Prosecution have any objection to that? I mean -- it may be that some of the documents are no longer in the possession of the French Prosecution, but those that are in their possession, would the French Prosecution object to Dr. Nelte's seeing those?

M. DUBOST: May I remind the Tribunal that the documents which we rejected were not rejected as useless in the beginning, but as not presenting sufficient guarantee as to their origin, as to the conditions under which we obtained them and as to their probative value.

The Tribunal will no doubt remember that a certain number of these documents were rejected by the Court itself. Those which we did not consider are of the same character as those documents which were rejected. We did not submit them because we could not tell you where, when, and how they had been discovered. For the most part, they are documents that fell into the hands of combat troops in battle, and under the terms of jurisprudence do not offer sufficient guarantee to be retained.

Insofar as they are still in my possession I am ready to communicate them to Defense Counsel, it being clearly understood that they will not attach to them any higher merit, any higher value than I did.

THE PRESIDENT: That may very well be. I think that all Dr. Nelte wants is to see any documents which you have brought to see whether he can find anything in them that he thinks may help the case of the defendant for whom he appears, and I understand you would not have any objection to his doing that.

M. DUBOST: I would only answer the Defense Counsel that some of those documents were rejected by your Tribunal when I presented them.

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THE PRESIDENT: Well, of course, it would not apply to documents which have been rejected by the Court. Very well. We will not decide the matter now. We will consider it.

DR. NELTE: Would the Tribunal announce its decision regarding the first question which I brought up, namely, whether it is sufficient that I refer to documents which have been presented by the Prosecution without submitting them myself.

THE PRESIDENT: Yes, Sir David?

SIR DAVID MAXWELL-FYFE: On that point I would like to support Dr. Nelte's suggestion. If a document has already been put in, I should have thought it was right and convenient that Counsel for the Defense could comment on it without putting it in again, and should have full right of comment.

THE PRESIDENT: I think that I have said on a variety of occasions that any document which has been put in evidence, or a part of which has been put in evidence, can, of course, be used by the Defense in order to explain or criticize the part that has been put in. It may be that as a matter of informing the Tribunal as to the document, it may be necessary to have part of the document, which has not been put in evidence, put in now in order that it may be translated.

SIR DAVID MAXWELL-FYFE: I do not know whether it would be convenient if I indicated to Dr. Nelte the views of the Prosecution on his list of documents, or whether he would like to develop it himself. I can quite shortly do that if it would be convenient.

THE PRESIDENT: I think it would shorten things if you would.

SIR DAVID MAXWELL-FYFE: A considerable number of the documents in the list fall into that category which has just been mentioned. Documents 3 to 9, 17 and 29, 30 and 31 all appear to be in, and therefore Dr. Nelte may comment in accordance with your ruling.

Then there are a number of documents which are affidavits, either of defendants or intended witnesses: Documents 12, 13, 22, 23, 24, 25, and 28.

The Tribunal may remember that in the case of the witness, Dr. Blaha, my friend, Mr. Dodd, adopted the practice of asking the witness, "Is your affidavit true?" and then reading the affidavit to save time. The Prosecution have no objection to Dr. Nelte's pursuing that course, should he so desire; but, of course, where a witness is going to be called as a witness, he will have to verify his affidavit on oath, in the submission of the Prosecution.

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THE PRESIDENT: One moment. You mean that, if the witness is here, you have no objection to Dr. Nelte's reading the affidavit and the witness being then liable to cross-examination?

SIR DAVID MAXWELL-FYFE: The witness will say, "I agree; I verify the facts that are in my affidavit."

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: It might save considerable time in the examination-in-chief, and we should all be prepared to cooperate in that.

THE PRESIDENT: Then, is Dr. Nelte agreeable to that course? Is that what he means?

DR. NELTE: Entirely.

THE PRESIDENT: Possibly, Sir David, if the affidavit were presented to the Prosecution, they might be able to say that they did not wish to cross-examine. That would save the witness' being here or being brought here.

SIR DAVID MAXWELL: It might be in the case of Dr. Lehmann. I think all the other cases are either defendants or witnesses with regard to whom there are certain points which the Prosecution would like to ask.

Then there are three documents to which there are no objections to their being used: 18, 26, and 27.

That leaves a number of documents as to whose use I am not quite sure at the moment, but it may be that Dr. Nelte will explain how he wishes to use them, and that may remove the difficulty of the Prosecution. If the Tribunal will be good enough to look at 1 and 2, 1 is an expert's opinion on state laws concerning the Fuehrer state, and the importance of the Fuehrer order, and Document 2 is an order of the Fuehrer, Number 1.

If it is desired to use these so as to controvert Article 8 of the Charter, the Prosecution will object. That is a question of superior orders.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: If they are only used to explain the backgrounds as a matter of history, that may be a different matter. Now, the next one is Document 10 -- a need for a ministry of rearmament, taken from ....

THE PRESIDENT: Even so, Sir David, in your submission, ought we to accept the opinion of an expert on such a point?

SIR DAVID MAXWELL-FYFE: No, Your Honor. We do not at all. I am afraid that my second remark really applied to the order of the Fuehrer. That might be used as a background or it might be

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used for purposes of mitigation or explanation of how a thing took place, but I respectfully agree that the expert's opinion on state laws cannot be used with regard to the jurisdiction of the Tribunal. Of course, the law of any other state may be a question of fact as far as the Tribunal is concerned just as it would be a question of fact in an English court: "What is the law of another state?" As I say, I want to reserve emphatically the position of Article 8 with regard to these two documents.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: Now, Documents 10 and 11 deal with rearmament in other countries. I do not want to prevent the Defense using illustrations, but again I reserve the position most emphatically that rearmament in other countries cannot be an excuse for aggressive war and would be irrelevant on that point.

Now, 15 and 16 refer to books by Major General Fuller and Major General Temperley, who are both ex-officers, who were journalists during this period. As far as any question of fact that is stated in these books, if Dr. Nelte will let us know what the passage is, we shall see whether we could admit it, but the general views of Major General Fuller and Major General Temperley we would submit to be irrelevant.

Then, 19, 20, and 21 are books about Austria. Again the Prosecution reserves the position that the earlier state of opinion in Austria with regard to an Anschluss is irrelevant when considering the question of the aggressive action in breach of the Treaty of 1936 which took place in 1938.

I think, My Lord, that I have now dealt with all the documents and, as I say, they fall into these four groups; with regard to three of which there is nothing really between us in principle, and with regard to the fourth, the Prosecution wants to reserve these various points which I have mentioned. Again I want to make clear that the Prosecution does not object to Dr. Nelte's obtaining any of these books for the purpose of preparing his case, but we want them to make clear at the earliest opportunity what their position is with regard to their use.

DR. NELTE: With respect to the first three categories, the Prosecution agrees with me that I can confine myself to the last category which begins with Documents 1 and 2. One of the fundamental questions of this Trial, which at first glance appears a purely legal problem, is the question of the so-called Fuehrer state (Fuehrerstaat) and Fuehrer order (Fuehrerbefehl). This question has, however, important actual significance here at this Trial, also of a factual importance. For instance, the Defendant Keitel, as a result of his particular position, was to the utmost degree affected by this Fuehrer

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state principle and acted accordingly as he was continuously in personal contact with the incarnation of this principle, namely, Hitler. It is not as if Article 8 of the Charter remained unaffected by it. It will, however, so I assume, be possible to prove that Article 8 of the Charter is not applicable here.

As to the Fuehrer Order Number 1, Document Number 2, the Tribunal itself will, upon hearing the order, be able to judge whether it bears any relevance. This order, Fuehrer Order Number 1, from Keitel Document Book Number 1, reads:

"a) No one is to have any knowledge of secret matters which do not fall within his sphere.

"b) No one is to obtain more information than he needs for the fulfillment of the task set him.

"c) No one is to receive information earlier than is necessary for the duties assigned to him.

"d) No one is to pass on to subordinates more secret orders or at an earlier date than is indispensable for the attainment of the purpose."

Document Number 1, that is, the expert opinion on the Fuehrer state and Fuehrer order, in connection with this Fuehrer Order Number 1, is to serve as proof for the fact that there can be no question of conspiracy in the sense of the Indictment. Therefore, I request the Tribunal to admit those two documents as relevant. Documents Number 10 and Number 11, and also to a certain degree, Number 16, are submitted as proof that the principles which the Defendant Keitel, as a soldier and a German, considered to be important, namely, rearmament up to a point of securing a respectable position for Germany among the council of nations, were not only postulated by the German people, but also appreciated and approved by important persons abroad. This subject is to be proved by submission of articles by a British, a French, and an American author, military men, all of whom hold a high reputation for their writings on military matters. Among these is the article "Total War," by Major General Fuller, my Document 15, as well as the book by the British Major General Temperley, The Whispering Gallery of Europe. Mr. Fuller, for instance, writes in his article, that:

"It is nonsense to state that he" -- Hitler -- "wanted war. War could not bring him the rebirth of his nation. What he needed was an honorable, secure peace."

The point to be proved here is that any aggressive intentions would of themselves be incompatible with the pronouncements of Hitler and the leading Nazis, if one believes in their sincerity. The defendant believed in the sincerity of these pronouncements and to this end he referred to the opinion of important persons abroad.

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I think those are the documents to which the Prosecution raised certain objections.

THE PRESIDENT: You have not mentioned 19 to 21, which documents are said to reveal a certain state of opinion in Austria.

DR. NELTE: Yes. Those documents -- Number 19, "The Cultural and Political Importance of the Anschluss," and Document 20, "The Way Toward the Anschluss," and the third, "The Anschluss in the International Press," dated 1931 -- are to prove the defendant could assume, and was justified in so doing, that the overwhelming majority of Austrian people welcomed the Anschluss with Germany. These are articles and memoranda of the Austro-German Peoples Union, the chairman of which was the Social Democrat Reichstag President Loebe.

Am; PRESIDENT: That concludes the documents, does it not?

DR. NELTE: I should like to make only one additional application to the Tribunal, which refers to documents which I have been unable to mention earlier since they were not submitted until the sitting of 22 February. I shall now submit this application. It refers to 11 documents, all of which were presented during the Friday sitting in order to prove the complicity of Keitel in the destruction during the retreat and in regard to forced labor of prisoners of war and civilian population. From the contents of these documents submitted by the Prosecution, it becomes apparent that, according to evidence I have already offered, a large number of the accusations of the Prosecution are to be attributed to the fact that every document which dealt in any way with military matters was simply charged to the OKW and Keitel.

THE PRESIDENT: Dr. Nelte, as I understand it, all these documents have already been put in evidence.

DR. NELTE: Yes.

THE PRESIDENT: Well, then they fall into the category to which Sir David agreed. They could be touched on by you.

DR. NELTE: That is correct.

THE PRESIDENT: There is no need to make any fresh application in connection with them.

DR. NELTE: When I made this additional application I had not yet received Sir David's consent. Besides this seems to be a particularly singular and convincing case because, on one day, 11 documents were submitted, all of which were used as accusations against Keitel, but which all showed by their contents that they do not apply to him or the OKW.

THE PRESIDENT: One moment. There is only one other thing that I wanted to ask you. You asked at an earlier stage for the

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evidence from Ambassador Messersmith and Otto Wettberg and in both cases the Tribunal granted you interrogatories. I do not know whether you are withdrawing your application in respect to those cases or whether you have seen the answers to the interrogatories

DR. NELTE: I have, in accordance with the suggestion, sent those interrogatories to Ambassador Messersmith as well as to Otto Wettberg. Depending on the reply I shall receive from those two witnesses, I shall or shall not submit them.

THE PRESIDENT: You have submitted the one for Otto Wettberg, have you?

DR. NELTE: Yes, but I have not received it back.

THE PRESIDENT: Very well. The Exhibit Number 1, would you explain a little bit more what Number 1 is going to be? It appears to be the opinion of an expert witness on the meaning of the Fuehrer precept. Is that what you intend?

DR. NELTE: Yes. It is an article in the field of constitutional law on the structure and significance of what is known as the Leader State (Fuehrerstaat).

THE PRESIDENT: Very well. Yes, Colonel Smirnov.

CHIEF COUNSELLOR OF JUSTICE L. N. SMIRNOV (Assistant Prosecutor for the U.S.S.R.): May it please Your Honors, it is my duty to submit to the Tribunal evidence on the last Count of the Indictment. "Crimes against Humanity" are dealt with in Count Four of the Indictment, and by Article 6, and particularly Subparagraph C of Article 6, of the Charter.

I shall submit evidence of crimes which the Hitlerites committed on the territories of the temporarily occupied areas of the Soviet Union, Poland, Yugoslavia, Czechoslovakia, and Greece.

The Crimes against Humanity -- just as the other crimes of the German fascists for which evidence has been submitted to the Tribunal by my colleagues -- originated in the criminal nature of fascism, in its endeavors to dominate the world by predatory seizure of whole states in the East and in the West, and by enslavement and mass extermination of people. These crimes were put into effect by adoption of the cannibalistic theories of German fascism.

Elements forming the concept of Crimes against Humanity are to be found in nearly all the criminal acts of the Hitlerites. For instance, a considerable amount of probative facts in corroboration of the gravity of the crimes committed by the German fascists has already been submitted to the Tribunal during the presentation of the Count concerning War Crimes against the civilian population.

The criminal violation by the Hitlerites of the laws and customs of war, as well as the mass extermination of prisoners of war, are

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some of the gravest Crimes against Humanity. At the same time, the concept Crimes against Humanity is considerably broader in scope than any definition of German fascist crimes, of which proofs have been hitherto submitted to the Tribunal.

Together with the arrival of German forces and the appearance of the swastika on official buildings, life of the inhabitants of the temporarily occupied eastern European countries seemed to stop. The merciless fascist machine tried to force them to be deprived of all that which, as a result of centuries of human development, had become an integral part of humanity.

Thus, death hung over them constantly, but on their way to death they were forced to pass through numerous and agonizing phases, insulting to human dignity, which constitute, in their entirety, the charge entitled in the Indictment "Crimes against Humanity."

Attempts were made to force them to forget their own names by hanging a number around their necks or by sewing a classification mark on their sleeves. They were deprived of the right to speak or to read in their mother tongue. They were deprived of their homes, their families, their native country, forcibly deported hundreds and thousands of kilometers away. They were deprived of the right to procreate. They were daily scoffed at and insulted. Their feelings and beliefs were jeered at and ridiculed. And, finally, they were deprived of their last right -- to live.

The numerous investigations noted not only the state of extreme physical exhaustion of the victims of German fascist atrocities; they also usually mentioned the state of deep moral depression of those who, by the hazards of fate, escaped the fascist hell.

A long period of time was necessary for these victims of German fascism to return once again to a world of normal conceptions and activities and to man's conventions for human society. All this is very hard to express in legal formula, but, in my opinion, it is very important in the Indictment of the major war criminals.

I ask the Tribunal to refer to the report of the Polish Government which has already been submitted to the Tribunal as Exhibit Number USSR-93 (Document Number USSR-93). The quotation which I should like now to read is on Page 10 of the document book. On Page 70 of the Russian text of this report, there is a quotation from the statement of Jacob Vernik, a carpenter from Warsaw, who spent a year in the extermination camp of Treblinka 2. Sometimes the official German documents refer to "Treblinka 2" as "Treblinka B," but it is one and the same. This was one of the most terrible centers for mass extermination of people, created by German fascists. In my statement, I shall submit to Your Honors evidence connected with the existence of this camp.

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This is what Vernik said in presenting a report on Treblinka to the Polish Government; a report which, as he stressed in his foreword, was his only reason "to continue his pitiful life":

"Awake or asleep I see terrible visions of thousands of people calling for help, begging for life and mercy.

"I have lost my family, I have myself led them to death; I have myself built the death chambers in which they were murdered.

"I am afraid of everything, I fear that everything I have seen is written on my face. An old and broken life is a heavy burden, but I must carry on and live to tell the world what German crimes and barbarism I saw."

The persons who came to Treblinka entered, as I said, the antechamber of death. But were they the only victims of this fate? An analysis of probative facts connected with the crimes of the German fascists irrefutably testifies to the fact that the same fate was shared not only by those who were sent to special extermination camps, but also all those who became the victims of these criminals in the temporarily occupied countries of Eastern Europe.

I ask the Tribunal's permission to bring in evidence a short quotation from a document already submitted to the Tribunal as Document Number USSR-46 -- the report of the Extraordinary State Commission of the Soviet Union on the crimes committed in the city and region of Orel. In the text of this document there is a special communication of a famed Russian scientist, a doctor, the President of the Academy of Medical Science and member of the Extraordinary State Commission of the Soviet Union, Academician Burdenko. The Tribunal will find this communication on Page 14 of the document book, Paragraph 6:

"The scenes I had to witness" -- says Burdenko -- "surpassed the wildest imagination. Our joy at the sight of the delivered people was dimmed by the expression of stupor on their faces.

"This led one to reflect -- what was the matter? Evidently the sufferings they had undergone had stamped upon them equality of life and death. I observed these people during 3 days. I bandaged them, I evacuated them, but their physical stupor did not change. Something similar could be noticed during the first days on the faces of the doctors."

I shall not, Your Honors, waste time in drawing attention to the long and well-known extracts from Mein Kampf or the Myth of the Twentieth Century. We are interested, in the first place, in the criminal practices of the German fascist fiends.

I have already said above, that death constantly hung over the people who became the victims of fascism. Death could come

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unexpectedly, together with the appearance in one or another place of a Sonderkommando; but at the same time, a death sentence would be pronounced for any act in these special decisions so mockingly called German fascist "laws."

I and other members of the Soviet Prosecution already have given numerous examples of these terroristic laws, directives, and decrees of the German fascist authorities. I do not wish to repeat myself, but I beg the Tribunal's permission to quote one of these documents as it concerns all the temporarily seized eastern territories. The only justification for the publication of this document for its author, the Defendant Alfred Rosenberg, is that these temporarily occupied districts were populated by non-Germans. This document is a characteristic evidence of the persecution of people for racial, national, or political motives. I beg the Tribunal to enter in the record, as Exhibit Number USSR-395 (Document Number USSR-395), the photostat of the so-called third decree supplementing the penal directives for the Eastern territories which was issued by Alfred Rosenberg on 17 February 1942. Your Honors will find this document on Pages 19 and 20 of the document book. I shall read in full, beginning with Paragraph 1:

"The death penalty, or, in lesser cases, penal servitude will be inflicted upon: Those who undertake to use violence against the German Reich or against the high authority established in the occupied territories; those who undertake to commit violence against a Reich citizen or a person of German nationality for his or her belonging to this German nationality; those who undertake to use violence against a member of the Wehrmacht or its followers, the German police including its auxiliary forces, the Reich Labor Service, a German authority or institution, or the organizations of the NSDAP; those who appeal or incite to disobedience of orders or directives issued by the German authorities; those who with premeditation damage the furniture of German authorities and institutions or things used by the latter for their work or in the public interest; those who undertake to assist anti-German movements or to maintain the organizational connection of groups prohibited by the German authorities; those who participate in or incite hostile activity and thus reveal anti-German mentality or who by their behavior lower or injure the authority or the welfare of the German State and people; those who premeditatively commit arson and thereby damage German interests in general or the property. . ."

THE PRESIDENT: Have you read this before?

MR. COUNSELLOR SMIRNOV: I checked the transcript, and I do not think that this has been read into the record.

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THE PRESIDENT: Very well.

MR. COUNSELLOR SMIRNOV: It may be that similar orders were read; maybe those of Frank or some other orders. They are all alike. In any case I could not find any mention of this document in the transcript.

I continue:

". . . damage German interests in general or the property of a Reich citizen or persons of German nationality."

Paragraph 2 is very characteristic:

"Furthermore, the death penalty and, in lesser cases, penal servitude is to be inflicted upon: Those who agree to commit any punishable action as foreseen by Paragraph 1; those who enter into serious negotiations on that subject; those who offer their services to commit such an action or accept such an offer; or those who possess credible information on such an action or its intention at a moment when the danger can still be averted, and willfully refrain from warning the German authorities or the menaced person in due time.

"Paragraph 3. An offense not coming under Paragraphs 1 and 2 is to be punished by death, even if this penalty is not provided for by the general German criminal laws and by decrees of German authorities, if the offense is of a particularly base type or for other reasons is particularly serious. In such cases the death penalty is also permissible for juvenile hard criminals.

"Paragraph 4. (1) If there is insufficient justification for turning the case over to competent courts-martial, the special courts are competent. (2) The special instructions issued for the Armed Forces are not hereby affected."

I skip Paragraph 5.

This decree of Rosenberg's was only one link in the chain of climes committed by the leaders of the German fascism directed toward exterminating the Slav peoples.

I pass on to the first part of my statement, which is entitled, "Extermination of Slav Peoples." In this part I shall show how this criminal purpose of the Hitlerites to exterminate the Slav peoples was carried out. I shall quote data from the report of the Yugoslav Government, which is to be found on Page 56 of the Russian text or on Page 76, Paragraph 3, document book:

''Apart from the thousands of Yugoslavs who died in battle, the occupants exterminated at least one and a half to two million people, mostly women, children, and aged persons. Of the 15 million prewar Yugoslav population, in the relatively

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short period of 4 years, almost 14 percent of the entire population was exterminated."

In the report of the Czechoslovak Government, on Pages 36 and 37 of the Russian text, there is proof of a plan conceived by the Hitlerite criminals for the forceful expulsion of all Czechs and the settling of German colonists in Czechoslovakia. The report quotes an excerpt from a statement of Karl Hermann Frank, who admitted the existence of this plan and declared that he, Frank, had compiled a memorandum in which he objected to a similar plan. I quote the excerpt from the statement of Karl Hermann Frank, which the Tribunal can find on Page 37 in the document book, fourth paragraph.

"I considered this plan senseless as, in my opinion, the vacuum created by these measures would have seriously upset the vital functioning of Bohemia and Moravia for various reasons of geopolitical, traffic, industrial, and other character; and the immediate filling of this vacuum with new German settlers was impossible."

In Poland a regime of extermination of the Slav population was put into effect by divers criminal methods, among which driving people to an extreme state of exhaustion by excessive labor and subsequent death from hunger, was most prevalent. The criminals quite consciously embarked upon the extermination of millions of people by hunger, which is attested by a number of documents already quoted by me and my colleagues in part, namely, the diary of Hans Frank.

I shall quote a few short extracts from this document. Here is an excerpt concerning the minutes of a conference held by the Governor General on 7 December 1942 in Krakow. The Tribunal will find the passage I wish to quote on Page 89 of the document book, in the first column of the text, last paragraph:

"Should the new food supply plan be put into effect, it means that for the city of Warsaw and its surroundings alone 500,000 people will no longer receive food relief."

And here is another short excerpt from the minutes of a governmental conference held on 24 August 1942. The Tribunal will find it on Page 90 of the document book, first paragraph of the text. Dr. Frank states:

"With all the difficulties which arise from the illness of workers, or the breaking down of your co-operatives, you must always bear in mind that it is much better if a Pole collapses than if the Germans are defeated. The fact that we shall be condemning 1,200,000 Jews to death by starvation should be mentioned incidentally. Of course, if the Jews do not die from starvation, it is to be hoped that anti-Jewish measures will be expedited in the future."

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The third short quotation is an excerpt from the minutes of a labor conference held by the political leaders of the Labor Front of the NSDAP in the Government General, on 14 December 1942. The Tribunal will find it on the reverse of Page 89 of the document book, second column, second paragraph:

". . . we are faced with the following problem: Shall we be able, as from February, to exclude from general food supply 2 million persons of non-German nationality or not?"

In his preliminary speech, the Chief Prosecutor of the U.S.S.R., while speaking of Crimes against Humanity, referred to the notes of Martin Bormann. The notes of Martin Bormann were presented to the Court under Exhibit Number USSR-172 (Document Number USSR-172) in particular. The Chief Prosecutor of the U.S.S.R. quoted the following lines, which the Tribunal can find on Page 97 of the document book, last paragraph:

"In summing up, the Fuehrer once more stated: The least German workman and the least German peasant must always stand economically 10 percent higher than any Pole."

How were things in reality? I should like to show that, with full approval, the Defendant Frank put these Hitler orders into effect in Polish territory. I beg the Tribunal to take for evidence an original German document.

Among the other fascist institutions carrying out various pseudoscientific experiments, the German criminals created a special institute for economic research. This institute issued a document entitled, "What the Polish Problem Means for War Economy of Upper Silesia."

The fascist "scientific" institute decided to make such investigations in order to clarify the reason why the output of Polish workers became considerably reduced.

Two short excerpts will testify to the aims of this investigation better than anything else. On Page 39 of this original document we read -- the Tribunal will find the passage I wish to quote on Page 101, of the document book, second paragraph. I submit this document as Exhibit Number USSR-282 (Document Number USSR-282). I begin the quotation which is on Page 101 of the document book, second paragraph.

"This investigation is in no way to be construed as propaganda to arouse pity."

On Page 149 of the quoted document -- the Tribunal will find this on Page 101, third paragraph, of the document book -- it is said:

"We raise our voices not to defend the Poles, but to protect the war production for the Armed Forces."

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Quoting these two short excerpts characterizing the aims and nature of this investigation, I further quote a few excerpts which show the status of the Polish worker and the practical realization by the Defendant Frank of the above-mentioned directives of Hitler. I quote on Page 38 of the original of the document, which corresponds to Page 101, Paragraph 7 of the document book:

"Information concerning the situation of the Polish population and considerations as to which measures would be the most suitable in this connection disagree on many points; but there is general agreement on one point, which can be summed up here in three words: The Poles are starving! Already some passing observations corroborate these conclusions. One of our investigators visited a war production plant during the lunch recess. The workers are standing or sitting apathetically, warming themselves in the sun, and here and there smoking. The investigator reports that of 80 persons, only one has a piece of bread for lunch. The others, although all working 10 to 12 hours a day, have nothing."

I pass to Page 72 of the original, which corresponds to Page 102 of the document book; there is this quotation.

"Observations made in the factories prove that the present rations of the Polish workers do not allow them enough food to take with them to work. In many cases, the workers do not even have a piece of bread. When some do bring breakfast, it is only coffee and one or two pieces of dry bread or raw potatoes; at the worst time, they did not even have this, but raw carrots, which were then roasted on a stove during work."

I continue my quotation on Page 150 of the same document:

"In this connection it could be stated that on visiting the mines, it appeared that nearly 10 percent of the Polish workers went to work underground with only dry bread, or raw potatoes cut in slices which they warmed afterwards on a stove."

The institute began its "scientific calculations" with a comparison of the calories received by the Poles in Upper Silesia and the calories received by the German population.

I shall not quote large excerpts from the document, but will limit myself to short facts only. I start on Page 63 of this report, which corresponds to Page 102, last paragraph of the document book:

"Comparison of the number of calories received by the Poles in Upper Silesia with the number of calories allocated to the German population indicates that the Poles receive 24 percent less than the Germans. This difference reaches 26 percent on

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food ration cards of nonworking Poles. For youths from 14 to 20, the difference in rations allocated to Germans and to Poles reached almost 33 percent. However, it must be stressed that this only applies to working youths over 14.

"The difference between what Polish and German children from 10 to 14 receive is even more striking. The difference here is not less than 65 percent. The looks of these underfed youths already testify to this. In a similar way Polish children under 10 receive up to 60 percent less than German children.

"If on the other hand the doctors state that the food conditions of the babies are not so unfavorable, it is only an imaginary contradiction. As long as a mother nurses her child, the child gets everything from that source. The consequences of the underfeeding are felt in this period not by the child but by the mother. Her health and working capacity are impaired considerably from the undernourishment."

I continue on Page 178 of the original which corresponds to Page 103, Paragraph 2 in the second document book:

"In all categories the Polish youth in comparison with the German is more wretched. The difference in rations of the Poles and Germans reaches 60 percent."

Extracts from the report of the German Labor Front cited in this investigation also offer some interest. Particularly on Page 76 are quoted excerpts from the report of the German Labor Front, dated 10 October 1941, after a visit to one of the coal mines in Poland:

"It was established that daily in various villages Polish miners fall from exhaustion....As the workers constantly complained of stomach pains, doctors were consulted, who answered that this was a symptom of undernourishment."

I would conclude the description of the Polish workers' physical condition drawn by the German criminals themselves, and, what is more, by the "learned" criminals, by a short quotation from the same report which the Tribunal will find on Page 106, Paragraph 6 of the document book:

"The management of the factories constantly stresses that it is no longer possible by threats of deportation to concentration camps to incite to work underfed people incapable of physical effort. Sooner or later there comes a day when the weakened body can no longer work."

There is also in this document a descriptive sketch of the legal status of the Polish worker during the German occupation which bears no possibility of double interpretation. This descriptive sketch is all the more valuable because, as was already stressed above,

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the authors of the investigation report expressly emphasized that "all humanitarian tendencies whatsoever were alien to them."

I begin the quotation of the produced document on Page 127 which corresponds to Page 110, second paragraph of the document book:

"The law does not recognize any legal claim of any member of the Polish nation in any sphere of life. Whatever is granted a Pole is done voluntarily by the German masters. This legal situation is perhaps most clearly mirrored in 'the Pole's lack of possession in the eyes of the law.' In the administration of justice Poles are not permitted to conduct their cases before a court. In criminal procedure the viewpoint of obedience dominates. The execution of legal regulations is in the first place the task of the police, who can decide at their discretion or refer individual cases to the courts."

According to an order dated 26 August 1942 Polish as well as German workers were obliged to take out insurance against illness, accidents, and disability. The deductions from the wages for this purpose were larger for the Poles than for the German. However, the German workers profited by this insurance, whereas, in actuality, the Poles were deprived of it.

As proof of this I shall present to the Tribunal two short excerpts from the same investigation report which Your Honors will find on Page 111 in the document book, Paragraph 4. It corresponds to Page 134 of the original text of the investigation report quoted above:

"Insurance against accidents, which is incumbent on the trade unions, involved particularly stringent measures for the Poles. The recognition of disability caused by an accident is much more limited than in the case of Germans. Disability for the loss of an eye is 30 percent for a German and 25 percent for a Pole. The payment of a subvention depends on 33 1/3 percent disability."

I continue my quotation on Page 135 of the original document, that is to say, on Page 111, last paragraph of the document book:

"The most stringent measures are provided for the dependents of fatally injured persons. The maximum a widow can receive is half of that granted by the insurance to Germans -- and this only in case she has to support four children under 15 years of age, or is herself an invalid.

"The restriction on the rights of Poles is illustrated by an example: A German widow with three children receives 80 percent of the yearly salary of her fatally injured

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husband; from an annual income of 2,000 marks she receives 1,600 marks per year, but a Pole in a similar situation would receive nothing."

The major German fascist war criminals not only sent into the temporarily occupied Eastern territories soldiers and the SS, but specially appointed fascist "scientists," "consultants in economic problems," and all sorts of "investigators" followed after. Some of them were detached from Ribbentrop's office; some others were sent by Rosenberg.

I beg the Tribunal to enter into the record as evidence one of these documents. I submit it under Document Number USSR-218. I mean the report of the representative attached by the Ministry of Foreign Affairs to the command of the 17th Army, Captain Pfleiderer, and addressed to his colleague Von Rantzau from the information service of the Ministry of Foreign Affairs. These documents were discovered by units of the Red Army on the Dirksen estate in Upper Silesia.

On the basis of a reading of these documents, it can be concluded that in 1941-42 Pfleiderer made a trip covering the following route through the occupied territories on the route Yaroslavl in the Ukraine, Lvov, Tarnopol, Proskurov, Vinnitza, Uman, Kirovograd, Alexandria, and Krementshoug on the Dnieper.

The purpose of this trip was to study economic and political conditions in the occupied territories of the Ukraine. That the author of this document was also completely free of so-called humanitarian tendencies, can be seen from the short excerpt from his report dated 28 October 1941, where Pfleiderer writes -- the Tribunal will find this quotation on Page 113, second paragraph of the document book. I quote only one line:

". . . there is the urgent necessity to press out of the country everything to secure the food supply of Germany."

But even with such proclivity to cruelty and rapacity, Pfleiderer evidently was abashed by the conduct of his compatriots to the extent that he deemed it necessary to bring it to the attention of the highest authorities of the Ministry of Foreign Affairs. I quote the report of Pfleiderer which is entitled:

"Conditions for the Guarantee of Supply and for Producing the Largest Possible Food Surplus in the Ukraine.

". . .3) Frame of mind and living conditions of the population by the end of October 1941."

The Tribunal will find this part on Page 114, third paragraph of the document book:

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"The frame of mind of the population generally became worse a few weeks after the occupation of the territory by our troops. The reason for it? We display . . . inner hostility and even hatred toward this country, and arrogance toward the people.... The third year of war and the necessity of wintering in an unfriendly country causes many difficulties, but they must be surmounted with courage and selfdiscipline. We must not work off our discontent over this country on the population.... How often it happened that, acting against the rules of psychology and committing mistakes that we could easily have avoided, we lost all sympathy of the population. The people cannot understand the shooting of exhausted prisoners of war in villages and larger localities and the leaving of their bodies there. As the troops are entrusted with a broad authority for self-provisioning, the kolkhozes along the main roads and near the larger towns for the most part lack pedigree cattle, seeds, seed potatoes (Poltava). Evidently, the supplying of our own troops stands first; however, the system of supply in itself is not immaterial: Psychologically, requisitioning the last hen is as unreasonable as it is economically unreasonable to kill the last pig or the last calf."

I continue my quotation, Paragraph 3, Page 115 of the document book:

"The population . . . is without leadership. It stands apart and feels that we look down on it, that we see sabotage in their tempo and methods of work, that we do not take any steps to find a way to an understanding."

A similar document is the document submitted as Exhibit Number USSR-439, which was graciously given to us by our United States colleagues. It was registered by the American Prosecution as Document Number 303-PS, but was not filed. It is a political report of the German professor, Doctor Paul W. Thomsen, written on the forms of the State University of Posen Biological Paleontological Institute and was indexed by the author himself, "Not for publication." Your Honors will find this document on Page 116 of the document book. This document also introduces us into this field of complete lawlessness and tyrannical arbitrariness toward the local population of the temporarily occupied districts of the Soviet Union. These observations were made by this fascist professor during his trip through the temporarily occupied territories of the Soviet Union "from Minsk to the Crimea."

I refer to two short excerpts from this document. The quotation which I have read into the record testifies to the absence of any humanitarian tendencies on the part of that author and if

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Paul Thomsen brought back from his trip only "the most depressing impression" that is only further proof of the depths of cruelty and brutality to which the German fascists were willing to go. The Tribunal will find these excerpts on Page 116 of the document book. I begin the quotation...

THE PRESIDENT: We will adjourn now.

[The Tribunal adjourned until 26 February 1946 at 1000 hours.]

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