Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg 14 November 1945-1 October 1946, Volume 08 (part 3 of 3)

Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg 14 November 1945-1 October 1946, Volume 08 (part 3 of 3)

Now, I want to make clear why it is that we do not want to go, in this Trial, into this question of each of these many subdivisions of these Nazi organizations and the functions of each. You have heard some of them named. They are innumerable. Some of them existed a short time and then disappeared.

The trial of each of these subdivisions would take—I would not venture to say how long. We do not want to see this Court trivialized. This is not a police court. This was not set up to be a police court; and this is a police court function, after this Court has laid down the general principles, to take up the case of individuals or of many individuals and to determine whether they are within or outside the definition.

I do not know whether a mounted group of SS men are any less dangerous than an unmounted group. I had always associated the equestrian art with warfare, but I do know it will take a long time to determine it.

I do not know whether SS motorcycle mounted traffic officers are less dangerous than those who do not have motorcycles, or were less criminal, but I should have a suspicion that the greater the mobility, the more active the group was in carrying out these widespread offenses.

I do not know about the physicians. I do not think it is up to us to try it in this case, but I suspect that a medical corps meant there might be some casualties; and this thing isn’t innocent on its face, as it appears. This will require a great deal of evidence, if we go into each of these things, and it seems to me that it would be out of keeping with the character of this Tribunal to go into that kind of question.

It is not necessary to go into the group any more than it is the individual, and if you go into the group I know of no reason why you should not go into the individual, because if the group is within the general contour, each one member of that group is entitled to his hearing before he is condemned. It may very well be that the occupying authorities will decide that the whole group is not worth prosecuting. We have no illusions about this thing. We are never going to catch up with all the people who are guilty, let alone prosecuting the innocent. If they are prosecuted, however, it may very well be that the group would be treated together in some way, so that there could be a single determination as to each group.

In any event, since each individual has to have a hearing, there can be no point in having a hearing for subgroups between the individual and the principal organization that we ask to have declared guilty.

If there were any point in our fully trying this question and deciding just who is in and who is out of the circle of guilt, there would be no reason why the Charter would not have given you power to sentence. There would be no reason for further trials.

It seems to me that we must look at this matter somewhat in the light of an indictment. It is true it is an accusation against all members of the group. It has no effect unless it is followed by a trial and a conviction, any more than an indictment that is never followed by a trial would have effect. The effect of the declaration is that the occupying power may bring these individual members to trial. Administrative considerations will enter into it—the degree of connection. It may very well be that it will be decided that those who were mere members and not of officer rank of any capacity should not be punished. We cannot say just what will be necessary.

Frankly, I do not know just what manpower is going to be available for the United States’ part in the follow-up of these trials. There are difficulties which I do not underestimate, but I do know that the idea that this means a wholesale slaughter or a wholesale punishment of people in Germany is a figment of imagination and is not in accordance with either the spirit of this Trial or the purpose of the Charter.

I think that is all that I care to say unless the Tribunal has some question, which I will be glad to answer.

THE PRESIDENT: Mr. Justice Jackson, there are one or two questions I should like to put up to you.

First of all, in your submission, do the words in Article 11 have any bearing, the words at the end of Article 11, where it is provided that “such court”—in the last three lines—“may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activity of such groups or organizations.” Do the words “for participation in the criminal activity of such groups or organizations” add anything to the definition of the word “membership“ in Article 10?

MR. JUSTICE JACKSON: I do not think they add anything. Frankly, the wording of this article has bothered me as to just what it does mean, since no punishment is imposed by this Tribunal at all for participation in the activities of the group. The purpose of the language was to make clear that the punishment for an individual crime, if one committed a murder individually or was guilty of aggressive warfare planning, is not to interfere with the punishment for being a member of a criminal organization or vice versa, to make clear that they are not mutually exclusive. But the language I am not proud of.

THE PRESIDENT: Secondly, would an individual who was being tried before a national court be heard on the question whether, in fact, he knew of the criminal objects of those groups?

MR. JUSTICE JACKSON: Well, I think he would be heard on that subject, but I do not think it would be what we in the United States would call a complete defense. It would perhaps be a partial defense or mitigation. I should think that the tribunal might well—the court trying it—might well have felt that he should have known under the circumstances what his organization was, despite his denial that he did not; and that his denial, if believed, will weigh in mitigation rather than in complete defense. In other words, I do not believe that you can make as a decisive criterion of guilt the state of mind of one of these members where you have no power whatever, no ability whatever, to controvert his statement of that state of mind. I think you have to have some more objective test than his mere declaration.

THE PRESIDENT: Then I understood you to say that it was not for the Tribunal to limit or define the groups which were to be declared criminal; but, as the Charter does not define them, isn’t it necessary for the Tribunal to define what the group is?

MR. JUSTICE JACKSON: I think it is necessary for the Tribunal to identify the groups which it is condemning, sufficiently so that it would afford a basis for bringing the members to trial for membership. I do not think it is necessary to define the exact contours of guilt. It is defined in reference to membership rather than in terms of guilt or innocence. That is to say, it may be that there is some little section of the SS that on trial would be said to be not guilty of participating in the crimes of the organization. I do not think it is up to this Tribunal to take evidence, because if you take evidence as to some you must as to all, to separate out those elements. The SS is a well-known organization. Its contour is easily defined by membership, and within those contours it does not seem to me necessary to make exceptions.

THE PRESIDENT: But if there were to be an essential distinction on the question of criminality between the main body of the SS and, for instance, the Waffen-SS, would it not be the duty of the Tribunal to make that distinction?

MR. JUSTICE JACKSON: I do not think that would be necessary. I think when the member was brought to trial—one may be a conscript and still have remained in on a voluntary basis, or he may have gone beyond his duty as a conscript. I do not think it is necessary at this stage of the proceeding, where the individual is not here, to eliminate him. I do think that the principle that acts performed under conscription are not within the condemnation of the Tribunal is quite a different thing.

THE PRESIDENT: Is it possible for this Tribunal to limit the powers of the national courts under Article 10 by either defining the group or giving a definition of the word “membership” in Article 10?

MR. JUSTICE JACKSON: Well, if Your Honor pleases, I think every tribunal in its judgment has a right to include, in its judgment, provisions which will prevent its abuse. And I do not think this Tribunal is lacking in power to protect its decision against distortion or abuse. I take it that is the question rather than the question of if the national courts brought these persons to trial and paid no attention to the declaration—I do not suppose that there would be any power in this Tribunal to stop them from doing it. But I assume you mean as a consequence of this declaration, and I think that the declaration can be circumscribed or limited. I certainly would insist that the Court had inherent power to protect its judgment against abuse.

THE PRESIDENT: Do you think this Court could direct the national court to take any particular defenses into consideration?

MR. JUSTICE JACKSON: I do not know that it could put it in just that way, but I suppose it could define the categories in a way that the declaration would not reach any except those included within it. In other words, I think the declaration that this Tribunal will make is within this Tribunal’s control. When you get away from the declaration, I think you would have no control over the national courts. But insofar as they relied on the declaration, you would have power to control the effect of the declaration, provided the effect was not inconsistent with the provisions of the Charter.

THE PRESIDENT: You did, I think, make some suggestions for obtaining such evidence as you thought was necessary. Do you wish to add anything to that?

MR. JUSTICE JACKSON: I have nothing to add to that, Your Lordship. I realize that the defendants’ counsel have great difficulty in getting evidence, great difficulty in communication. I have it myself—great difficulty in getting letters delivered, great difficulty in all of these things. But I will state to this Tribunal categorically—I do not know what camp it is that was referred to yesterday as substantially refusing counsels’ application to see their clients—but so far as the American Zone is concerned, counsel, if they are properly cleared to go there, will be given every facility to get every kind of evidence that is available in that camp. If they are there at mealtimes they will be fed, and if they are there at night they will be sheltered. We will put everything in their way to help them that is possible.

Of course, there are security problems involved, and counsel cannot just walk into a camp and make himself at home. He will have to be cleared in advance so that he meets the security requirements; but there is no purpose to obstruct, and there is every purpose to assist.

THE PRESIDENT: Thank you.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I should like to ask you a few questions. Some of them will be somewhat repetitious of what the President has already said. You will excuse me if I repeat one or two of those. Most of them are directed for the purposes of this argument, which, I take it, is to form some kind of definition of the organizations, which may, of course, not be final but will at least give us a view of what should be relevant to the defendants’ making up their cases. So the questions are addressed to that, rather than any ultimate theory of definition.

You said that you would suggest excluding clerks, stenographers, and janitors in the Gestapo. Well, now, if we accepted that, would we not be obliged to exclude such categories from other criminal organizations?

MR. JUSTICE JACKSON: Not at all, Your Honor. I think there is a difference between a concession by the Prosecution and the necessity for the Tribunal’s making a decision.

It might appear logical that if we conceded clerks, stenographers, and janitors of the Gestapo were not to be included, that no clerks, stenographers, or janitors should be included. It does not follow. The relationships in different organizations differ.

From what we know about the Gestapo situation, we are satisfied that clerks, stenographers, and janitors in that organization ought not to be included, and we do not want to waste any time on it.

THE TRIBUNAL (Mr. Biddle): Was the reason for that, that those clerks would not have had knowledge of what was going on in the Gestapo?

MR. JUSTICE JACKSON: I do not think either that they had sufficient knowledge, in general, to be held or that they had sufficient power to do anything about it if they did.

Now, this question of dealing with minor people—and it is one of the questions that the Court inevitably gets into, if it undertakes to draw these lines itself rather than letting them be drawn administratively by what we choose to prosecute—is illustrated by just this sort of thing.

One of the difficulties with the Court is that it tries to be logical, and ought to be logical perhaps. I have always thought that was the great merit of the jury system, that juries do not have to be, and in prosecuting we do not have to be. It may look illogical to exempt small people in one organization and not in another, but there were differences in them.

For example—I think it is in evidence; if not, it will be—it was pointed out at one meeting by the Defendant Göring that chauffeurs to certain officers had profited to the extent of half a million Reichsmark from Jewish property that they had gotten their hands on. Now, I suppose ordinarily you would say that a chauffeur for an official was not a man who had much discretion and not a man who was expected to know much about what his employer was doing, but you have a great deal of difference in their relations to these men.

So far as I am concerned, I want to make perfectly clear—and I think it will be assumed—the United States is not interested in coming over here 3,500 miles to prosecute clerks and stenographers and janitors. That is not the class of crime, even if they did have some knowledge, that we are after, because that is not the class of offender that affects the peace of the world. I think there is little reason to fear that that sort of person—unless there is some reason to feel that some guilty connection exists beyond merely performing routine tasks—will be prosecuted in as big a problem as we have on hand here.

THE TRIBUNAL (Mr. Biddle): But in spite of that, you would include them in the SS, let us say?

MR. JUSTICE JACKSON: I would not exclude them.

THE TRIBUNAL (Mr. Biddle): I take it that would include them.

MR. JUSTICE JACKSON: If they were members, they would be included; if they were merely employees, that is something different; but if they took the oath and became a part of the SS organization, I think they stand in a different relation to the employed clerks of a government agency.

THE TRIBUNAL (Mr. Biddle): Now, somewhat along those same lines, you stated, in trying to define what a criminal organization was, that its membership must have been—I am quoting your words—“generally voluntary” and its criminal purpose or methods open and notorious and “of such character that its membership in general may properly be charged with knowledge of them.”

Now I am going to ask you a question which is somewhat repetitious of what the President asked you, but perhaps you can specify a little more. Would it not be inconsistent with that test which you suggest for criminality, if we decline to consider whether any substantial segment of the organization—I mean a section or segment might comprise a third of the whole organization or even more, like the Waffen-SS within the general SS—was either conscripted, which is one test, or ignorant of the criminal purpose? Because if such a substantial segment could be shown to be innocent under these tests, would it not be necessary either to decline a declaration on that ground—that the criteria were not generally satisfied as to the accused organization—or else to exclude the innocent segments from the deposition of the criminal organization?

Now, that is a rather involved question but it seems to me, if the test is the knowledge or assumed knowledge, that evidence that a very large segment did not and probably could not have had knowledge would be relevant and would be relevant not only for the purposes of evidence, but for the purposes of definition?

MR. JUSTICE JACKSON: Well, I think you have at least two ideas in the question that must be dealt with separately. The first is that conscription and knowledge, to my way of thinking, present a very different problem.

As to conscription, as I said before, I think, if the Tribunal saw fit to condition its judgment not to apply to conscripted members of any organization, I shall have no quarrel with it. I have always conceded we did not seek to reach conscripted men. If the overwhelming power of the state puts them in that position, I do not think we should pursue them for it.

If the Tribunal says that the Waffen-SS must be excluded because it was conscripted, that raises a question of fact.

THE TRIBUNAL (Mr. Biddle): Yes.

MR. JUSTICE JACKSON: And it raises a question of fact that we would be 3 weeks trying and that is what I want to avoid, because there were Waffen-SS and other Waffen-SS and there were different periods of time and there were different conditions; and we get into a great deal of difficulty if we undertake to apply the principle that the conscript is not to be punished; and that, it seems to me, is what is properly left to the future course, the question as to whether an individual or a number of individuals comes within that principle. In other words, I think this Court should lay down principles and not undertake what I call “police court administration” of those principles as applied to individuals.

THE TRIBUNAL (Mr. Biddle): May I interrupt you for a moment on the first point? I take it, then, that you would think it appropriate to express a general limitation with respect to conscription in the declaration, but not to designate to whom that applies?

MR. JUSTICE JACKSON: I would have no objection to such a designation as far as I am concerned. Now, the other question is a question of knowledge, which is infinitely more difficult. We do not want to set up a trap for innocent people. We are not so hard up for somebody to try that we have to seek and to catch people who had no criminal purpose in their hearts; but there can be no doubt that every person affiliated with this movement at any point knew that it was aimed at war and aggressive war. There can be no doubt that they knew that these formations under the Nazi Party were maintaining concentration camps to beat down their political opposition and to imprison Jews and the terrible things that were going on in these camps.

To ask us to prove individual knowledge or to ask us to accept the man’s own statement of his state of mind is to say that there can be no convictions, of course. It seems to me that the scale of this crime and the universality of it, going on all over Germany, concentration camps dotting the landscape, and the vast population, is sufficient to charge with knowledge the principal organizations of the Nazi Party which were responsible for those things. The test that I think applies as to knowledge is not what some member now on the witness stand may say he knew or did not know; but what, in the light of the conditions of the times, he ought to have known—what he is chargeable with.

THE TRIBUNAL (Mr. Biddle): Wouldn’t it follow from that that there was no taking of any evidence on what was generally known?

MR. JUSTICE JACKSON: Well, I think the proof of what was going on establishes the point as to chargeability with knowledge.

THE TRIBUNAL (Mr. Biddle): Do you claim that the defendants should not be permitted to give any evidence as to that which was generally known with respect to what was going on?

MR. JUSTICE JACKSON: To what was generally known, I do not think the defendant’s denial that he knew what was going on has any materiality.

THE TRIBUNAL (Mr. Biddle): That was not my question. My question was whether a witness could be permitted to testify that the acts of the particular organizations were not generally known to its members. Would you exclude that evidence?

MR. JUSTICE JACKSON: I certainly would, and if I heard it I would not believe it; but perhaps my . . .

THE TRIBUNAL (Mr. Biddle): Excuse me. Although on your test of knowledge, you wouldn’t permit the defendants to meet that test?

MR. JUSTICE JACKSON: I should say that that is just exactly the situation, that the Court would take judicial notice, from the evidence that is in, that this was a thing that must have been known in Germany; and I would not think that it would be permissible for a citizen of the United States to testify that he did not know the United States was at war, a fact of which he is chargeable with knowledge; and it seems to me that the magnitude of these things is so equally established and the repeated daily connection between the organizations and this criminal program is so equally clear.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I only have two or three more questions. One is directed to the General Staff. Does the particular date when an individual accused—I beg your pardon—when an individual assumed one of the commands listed in Appendix B of the Indictment have any bearing on whether he is a member of the organization? Now, I am going to bring that question down to the General Staff.

MR. JUSTICE JACKSON: Perhaps I should warn you of this—that I am not a military man. I have not specialized on that subject and I shall want to refer your question to someone whose knowledge is more reliable than mine.

THE TRIBUNAL (Mr. Biddle): I shall ask the question directed to you as a lawyer and not an expert in military matters. Assume that one of these individuals became an army group commander after the wars of aggression had been planned, proposed, initiated—roughly, that would be after 1942; let us say, after Pearl Harbor—and had reached the stage when Germany was on the defensive; is his acceptance of a command at that date sufficient to make him a member of the organization?

MR. JUSTICE JACKSON: I should think it would.

THE TRIBUNAL (Mr. Biddle): The reason I asked you that, Mr. Jackson, is that I thought you had rather indicated in your opening address that the starting of the war was the essence of the crime rather than the waging of war, and I was wondering whether in that case there would be any difference which we should consider?

MR. JUSTICE JACKSON: Well, I think when one joins, he ratifies what has gone before, and it would seem to me that when he came into the picture at that point, it was a ratification of all that had gone before on the ordinary principles of conspiracy.

Now I think it is a difficult question, whether a man had not had any prior connection with the Nazi Party—if you take the example of a man who disapproved all that the Nazi Party had done, who never became a member of it, who stood out against it and publicly his position was clear, and he took no part in the war until the day his country was being invaded and he said, “I don’t care what happened before; my country is being invaded and I shall now go to its defense,” I would have difficulty convicting that man. I do not know such a man.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, there is only one more question I should like to address in connection with Law Number 10. I am a little puzzled myself on Law Number 10, the Control Council Law of December 20—I think that was the date. You spoke of one reason for declaring the organizations criminal and bringing persons into the Control Council for screening. I take it they can do that easily without any help on our part.

MR. JUSTICE JACKSON: That is right.

THE TRIBUNAL (Mr. Biddle): Now, you said something very interesting. You said the act would not have been so, if you would have drafted it. How would you have drafted it, if that is not an improper question?

MR. JUSTICE JACKSON: Well, I think I would not have made these penalties of this act apply to all of the crimes. You have one lumping of a whole list of crimes which, to my mind, range from the very serious to the very minor. Then you have applicable to all of those crimes, penalties from death down to deprivation of the right to vote in the next election.

THE TRIBUNAL (Mr. Biddle): For instance, you would not have made the death penalty applicable to the members of the SA who might have resigned in 1922?

MR. JUSTICE JACKSON: I would not; and I think that in that way I would have been more explicit with the penalties. Like the Mikado, I would try to make the punishment fit the crime, rather than leave it wide open.

THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, what defenses do you think are expressly permitted under the Control Council Law? Don’t we have to assume that the members of the Tribunal will permit certain defenses or are any defenses expressly permitted?

MR. JUSTICE JACKSON: No; no defense is expressly permitted. I take it that any defense which goes to the genuineness of membership, as the volition of the individual, duress, fraud—and by duress I mean legal duress—I do not think that the fact that it is good business, that the man’s customers may leave him if he does not join the Party—that is not duress; but anything which goes to the genuineness of his membership.

THE TRIBUNAL (Mr. Biddle): Only one more question. If the Tribunal were of the view that a declaration of criminality of the organization is an essentially legislative matter, as suggested by some of the defense lawyers, rather than a judicial one—if we were of that view, would it be appropriate for the Tribunal to consider the legislative authority of the Control Council, to make such a declaration, which undoubtedly we could do in exercising that discretion which is conferred on us under Article 9 of the Charter?

MR. JUSTICE JACKSON: I would not think so, Your Honor. I think that this Tribunal was constituted by the powers for the purpose of determining on the record—after hearing the evidence, after knowing the facts—determining what organizations were of such a character that the members ought to be put to trial for membership.

The fact that some other group which does not have hearing processes and which is not constituted as this might, either administratively or some other way, reach that same result, I do not think is a proper consideration. I should think it was rather a way of avoiding the duty—there are other ways of doing it, but this is the way our governments have agreed upon. I should think it would not be a proper consideration.

Of course, you could punish these members without anything. We have them in our power and in our camps. But our governments have decided they want this thing done after a full consideration of the record, and in this matter I think that. . .

THE TRIBUNAL (Mr. Biddle): But you have no doubt of the power of the Control Council to do it, irrespective of what we do, do you?

MR. JUSTICE JACKSON: I do not know of any limitations on the power of the Control Council. There is no constitution. It is a case of the victor and the vanquished, and I think that is one of the reasons why, however, we should be very careful to observe the request of our governments to proceed in this way. In a position where there was no restraint on their power except their physical power, and mighty little of that today, they have voluntarily submitted to this process of trial and hearing, and it seems to me that nothing should be done, by us as members of the legal profession at least, to discredit that process or to avoid it.

THE TRIBUNAL (Mr. Biddle): Those are all the questions I have to ask.

THE TRIBUNAL (Professeur Donnedieu de Vabres, Member for the French Republic): I would like to ask Mr. Jackson a few details on the consequences of the declaration of the criminality of an organization. Suppose an individual belonging to one of the organizations classified as criminal—for instance, an SS man or a member of the Gestapo—is brought before the military jurisdiction of an occupying power. According to what has been said so far, he will be able to justify himself by proving that his membership in the group was a forced membership. He was not a volunteer and if I have understood correctly, he will also be able to justify himself by proving that he never knew of the criminal purpose of the association. That, at least, is the interpretation which has been adopted and defended by the Prosecution, and which we consider exact.

But I suppose that the tribunal in question has a different conception. I suppose that it considers the condemnation of the individual who was a member of the criminal organization, obligatory and automatic. Strictly speaking, the interpretation which has been advocated by Mr. Jackson is not written in any text. It does not appear in the Charter. Consequently, by virtue of what texts would the tribunal in question be obliged to conform to this interpretation?

MR. JUSTICE JACKSON: The control of the future tribunal is the control of the effect of the declaration of this Tribunal. This Tribunal’s effect, when brought before a subsequent tribunal, is defined by the Charter, and it has only the effect that the issue as to whether the organization is criminal cannot be retried. There could be no such thing as automatic condemnations, because the authority given in the Charter is to bring persons to trial for membership.

It would, of course, be incumbent on the prosecutor on ordinary principles of jurisprudence to prove membership. I think proof that one had joined would be sufficient to discharge that burden, but then the question could be raised by the defendant that he had defenses, such as duress, force against his person, threats of force, and would have to be tried; but the Charter does not authorize any use of the declaration of this Tribunal except as a basis for bringing members to trial.

THE TRIBUNAL (M. De Vabres): If I am not mistaken, the authority of the International Military Tribunal will be imposed on the respective jurisdictions of the states, and will oblige them to adopt the interpretation in question. But in that case I conclude that, in the opinion of the Chief Prosecutor, Mr. Jackson, the judgment of the International Military Tribunal, the judgment which we shall pass, will have to contain a precise definition of this subject. Mr. Jackson said, however, a few moments ago, in agreement I think with Mr. Biddle, that the statute of the Charter permits us to define a criminal organization. Our judgment would not only contain a determination of the groups which we consider criminal, but also a definition of a criminal organization; and in the same way there would be precise definitions concerning the cases of irresponsibility, for example, the case of forced membership. There would be precise definitions which the tribunals of the respective states would be forced to respect. Do I understand Mr. Jackson’s thought correctly?

But, in that case, the question I ask is the following, and it is somewhat similar to that of Mr. Biddle: Briefly, would it not mean conferring on our judgment a certain legislative character? We are not an ordinary court, since we are adopting provisions, such as the definition of a criminal organization, which are generally included in a law, and at the same time our judgment contains provisions which limit the cases of individual responsibility. That is to say, in brief, we are to a certain extent legislators, as it was argued yesterday.

MR. JUSTICE JACKSON: I think that is true, that there is in this something in the nature of legislation or of the nature of an indictment. You may draw either analogy. But I do not see anything about that, as I understand it, which complicates the problem. In the United States we have a strict separation of legislative from judicial power, but there is nothing in that matter which controls this Tribunal, and whether you draw the analogy of an indictment in which you are accusing by your finding, your declaration, or whether you draw the analogy of legislation, it would be equally valid as the act of the Four Powers, since they are not required to withhold any power from the Tribunal.

THE TRIBUNAL (M. De Vabres): Yes, yes. The question which I have just asked seems to be of theoretical interest only. This is, however, the practical consequence which I should consider, which I should be tempted to draw, and on which I would like to hear your opinion:

If we have some legislative power, in that we are able to limit the indicting of persons and admit causes of irresponsibility or excuses, does this absolutely exclude our limiting at the same time the punishment?

Earlier, Mr. Biddle and Mr. Jackson were considering Article 10, and Mr. Jackson expressed some criticism concerning the penalties, which are not individualized penalties, since they can extend as far as the death penalty, as far as capital punishment.

There are, of course, some crimes for which capital punishment seems justified, such as Crimes against Humanity. But is it not going too far, to consider imposing the death penalty as the maximum for a crime which in France would perhaps be considered purely “material”—the crime of belonging to a criminal organization? Would it not be too severe for us to impose the death penalty? And might not the International Military Tribunal be forced to reduce unduly the notion of a criminal organization, precisely because we consider the possibility of this penalty being too severe? In other words, does Mr. Jackson absolutely exclude for the International Military Tribunal the power to fix a penalty, or at least a maximum penalty, for the crime of belonging to a criminal organization?

MR. JUSTICE JACKSON: I should not think that it was within the proper sphere of the Tribunal to deal with the question of penalties, for the reason that no power to sentence anyone other than the defendants on trial is given to this Tribunal; I mean, no power to sentence for membership in the organizations. Therefore, I think no incidental power to control penalties is given, but the power to declare an organization criminal does, incidentally, confer power to determine what that organization is, and I have not been disposed to question the power of the Tribunal to carry that definition to great detail, although I would question the wisdom of it.

The power, however, of sentence for membership is not even remotely conferred upon the Tribunal, and I would think that that would be a rather drastic expansion of its power.

THE TRIBUNAL (M. De Vabres): Those were the only questions I wished to ask.

THE PRESIDENT: We will adjourn for 10 minutes.

[A recess was taken.]

THE PRESIDENT: Sir David, did you want to add a reply or did you come in order that we might ask you some questions?

SIR DAVID MAXWELL-FYFE: First, if the Tribunal will allow me, there are three or four points on which I should like to add a word.

The first point that Dr. Kubuschok made was that the procedure of asking for a declaration against the organizations was objectionable for two reasons: First, because it was founded on the limited phenomenon in Anglo-Saxon jurisprudence, that a corporation may be convicted in certain limited spheres; and secondly, that the organizations were in fact dissolved some time ago.

I think it is important to stress that that is not the legal conception which underlies this portion of the Charter. It is really based, in my submission, on a doctrine found in most systems of law, either res adjudicata or the conception of the judgment in rem as opposed to the judgment in personam. That is, that it is in the general and public interest that litigation on a particular point should not be interminable, and that, if the appropriate tribunal has come to a decision on a point of general interest and importance, that point should not thereafter be litigated many times.

It is the essential view of the Prosecution here that this Tribunal, having had the advantage of evidence dealing with the whole period and functioning of the Nazi conspiracy, is the appropriate and, indeed, the only suitable tribunal for deciding the question of criminality. It is a prospect which would be quite impracticable and beggars the imagination as to time to consider that every military government or military court should decide one after the other the question of criminality of great organizations like these. And therefore we have in the Charter adopted the procedure that that preliminary question will be decided once and for all by this Tribunal.

The fact that the organizations have been administratively dissolved is irrelevant. What is important is, what was the nature of the organizations when they did function? And that is the issue which the Tribunal has to determine. And we submit and indeed say that it is a clear implication, if not indeed expressly within the words of Article 9, that it must be at the trial of the individual defendants that the question of this criminality should be decided, and we say that apart from considerations of practicality the wording of Article 9 is a clear guide against separation of these issues as suggested by two or three of the Defense Counsel.

I only want to add one word about what has been said on the argument on Law Number 10. Dr. Kubuschok made the point that this procedure really acted entirely against the individual. There are at least two answers: The first, which I have endeavored to give, as to the legal concept behind the idea of a declaration, and the second, the one which has been canvassed before the Tribunal, as to the rights of defense. May I say that, in my submission, membership in an organization is a question of fact and therefore these defenses of duress, fraud, or mistake—to take three examples—must clearly be permissible and good defenses on that question of fact. The third is that every document such as the Charter—the same would apply to every piece of legislation—always contemplates intelligent and reasonable administration in carrying out its requirements, and it would be, in my submission, idle to take the view that where you have a permissive enactment like Law Number 10—and it is clearly permissive as to prosecution—intelligent administration should prosecute every one who could be prosecuted under the act.

In our candid proverb, hard cases make bad law; and in my submission, it would be wrong to decide or interpret on an extremely unlikely hard case.

I want, if I may, to say just one or two words on the argument so interestingly put forward by Dr. Servatius and mentioned a few moments ago by the learned French judge.

In my submission there is no legislative function for this Tribunal whatsoever. There is a clearly judicial function, and I want to make it quite clear; I do not qualify it by “quasi-judicial” or any qualification at all. It is a simple judicial duty. The first portion of that duty is to define what is criminal. In my submission, as Mr. Justice Jackson argued yesterday, that presents no difficulties. It occurs in Article 9, three articles after Article 6, and “criminal“ in that context means an organization whose aims, objects, methods, or activities involved the committing of the crimes set out in Article 6.

When “criminal” has been defined, it is a matter of judicial weighing of evidence to decide whether there is evidence of these crimes being committed by the organization or being the aim or object of the organization, as I have stated. But I respectfully ask the Tribunal to hesitate long before it accepts the argument of Dr. Servatius that this Tribunal should decide the interpretation of “criminal” on its own a priori basis, to use Dr. Servatius’ own words, of politics and ethics. That would be introducing a new, dangerous, and unchartered factor into the Trial. There is, in my submission, a clear line of guidance for the judicial approach, and nothing in the Charter to support the prima facie, unexpected idea that a body established as a tribunal should delegate to itself legislative powers.

Again, if I may add just one word as to the conclusions which Dr. Kubuschok drew on the question of criminality as a ground for deciding the relevancy of evidence, his first conclusion was that the organization in question, according to its constitution or charter, did or did not have a criminal aim or purpose.

I accept, of course, the test of aim and purpose, but I do not accept the limitation as to charter or constitution. The criminal aim or purpose may be shown by the declarations or publications of the leaders of the organizations, and also, as I submitted, by its course of conduct in method and action. I agree with Dr. Kubuschok that aim or purpose is the first test, but I do not agree with his limitation as to establishing it.

His second point was that crimes under Article 6 were not committed within or in connection with the organization or were not committed continuously over a period. The first part of that would seem fairly clear, that, if the crimes were not committed within or in connection with the organization, the organization is obviously in a very favorable position. But I first answer the second part by saying that it does not come into the picture of this case that there is any instance of isolated crimes with regard to every organization. The crimes alleged are, in fact, spread over the period alleged in the Indictment, but I suggest that the adoption of such a criterion does not really help. One comes back to the first point of Dr. Kubuschok, that aims or purposes, as disclosed by declarations, methods, or activities, are the primary and most important tests.

Then, the third point that Dr. Kubuschok made was that an appreciable number of members had no knowledge of the criminal aims or of the continuous commission of crimes. I endeavored to stress, as did Mr. Justice Jackson, that the Prosecution’s test is constructive knowledge. That is, ought a reasonable person in the position of a member to have known of these crimes? And that really is the answer, in my respectful submission, to the relevancy of individual knowledge of one particular member.

It is only too true that during the period under discussion a very large number of people made a habit of sticking their heads in the sand and endeavoring to abstain from acquiring knowledge of things that were unpleasant. In my respectful submission, that sort of conduct on the part of a member would not help him at all, and the only answer to that is to adopt the test which we have suggested: Ought a person in that position reasonably to have known of the commission of the crimes?

Dr. Kubuschok’s fourth point is that an appreciable number of members or certain independent groups joined the organization under compulsion or illusion or superior orders. Shortly we answer that by saying that that is only relevant to the defense of an individual member in the subsequent proceedings, and, of course, it is only a defense where he can show that he has taken no personal part in the criminal acts.

Then, the last point which Dr. Kubuschok made was that an appreciable number of members were honorary members. Again we say that that is only relevant to the defense of the individual member, and it does not really alter or increase the defenses open to him.

The only other point of Dr. Kubuschok’s which I do think requires mention is that in considering how evidence could be presented, he said that certain rights of defense are universal. The first of these which he claimed was direct oral testimony, and he said that each individual defendant should have this right. He then admitted that that was practically impossible and suggested as a solution that we must typify, that is, that representatives of groups in the various camps should make affidavits showing what percentage took part in criminal actions or knew about them.

I want to point out to the Tribunal that it is expressly laid down in the Charter that members of the organization are entitled to apply to the Tribunal for leave to be heard, but the Tribunal shall have power to allow or reject the application. As a point of construction no less than of sense, there would have been no point in giving the Tribunal the power to reject the application, if it were implicit that everyone should have the right to be heard.

The answer is that the Tribunal has complete discretion to decide what line and what course shall be taken to procure the evidence. The Prosecution, through Mr. Justice Jackson, has indicated that it makes no objection to any reasonable form of collecting relevant evidence. What the Prosecution objects to is evidence being tendered on the issue before the Tribunal which is only relevant to the question of individual innocence or guilt of the member.

My Lord, I could have dealt, and indeed was prepared to deal, with a number of points raised by the other Counsel for the Defense. I hope they would not think that it is any disrespect to their arguments that I have not dealt with them, but I know that the Tribunal wishes to ask certain questions, and I do not want to trespass on that time. I only want to deal with one point, because it kills with one stone two birds that have flown against our argument in this case.

It will be remembered that when I dealt with the SA yesterday, Dr. Seidl—and I am sorry he is not here—raised the question that the Defendant Frank was not a member of the SA; and Dr. Löffler, in dealing with the SA today, raised the question that its activities no doubt did not really extend after 1939, and not importantly after the purge in 1934.

I find an interesting quotation from the semi-official publication, Das Archiv, for April 1942, and as it is very short and deals with these points I venture to read it to the Tribunal, so that it may appear on the record. At Page 54 it says:

“SA Unit, Government General. At the order of the Chief of Staff of the SA, there took place the foundation of the SA unit, Government General, whose command Governor General SA Obergruppenführer Dr. Frank took over.”

I only quote that to finish my argument to show, as indeed all the evidence shows, that with regard to the SA, no less than any other of the organizations, the Prosecution have provided evidence of crimes reaching over the period which they have stated.

I deliberately have cut out anything further that I might say, My Lord, because I do not want to shorten unduly the time, if the Tribunal wishes to ask me any questions.

THE PRESIDENT: I think there is only one question that I should like to ask you. As I understand it, you say that the Prosecution have proved facts from which one must conclude that every reasonable person who joined any of these organizations would know that they were criminal.

SIR DAVID MAXWELL-FYFE: Yes.

THE PRESIDENT: You would agree, would you not, that proof of any fact which went to contradict the facts from which you have presumed knowledge of criminality could be proved by the Defense?

SIR DAVID MAXWELL-FYFE: Certainly. If the Defense sought to prove, to take an extreme example, that the conduct of the SS with regard to, first of all, concentration camps and, secondly, killing Jews and political commissars on the Russian front, was done in such a way, despite the vast territory over which these crimes have been proved to have been carried on, was done in such a way that nobody knew about it—if there was relevant evidence on that point, then they could call it, on the general point that it was not a matter of imparted constructive knowledge, but of memory.

THE PRESIDENT: I only asked you that question because there were certain observations by Mr. Justice Jackson, which did not seem altogether to accord with the answer which you have just given.

SIR DAVID MAXWELL-FYFE: I think that, as I understood Mr. Justice Jackson, he was saying that it might not be relevant to prove that one member did not know of the crimes, and I thought that our two approaches really did fit in with each other.

THE PRESIDENT: Yes.

THE TRIBUNAL (Mr. Biddle): I take it then, Sir David, that you would say that evidence with respect to general knowledge by any very substantial segment of an organization would be relevant, would it not?

SIR DAVID MAXWELL-FYFE: Well, I think it would be relevant if it were not absurd. I mean, a disclaimer of knowledge of certain acts may be so absurd that the Tribunal should not take the time of inquiring into it.

THE TRIBUNAL (Mr. Biddle): That would apply to any evidence, of course. But my point was: You have said that evidence with respect to general knowledge over a whole organization would clearly be relevant.

SIR DAVID MAXWELL-FYFE: Certainly.

THE TRIBUNAL (Mr. Biddle): And now I ask you whether that would be true with respect to any substantial segment of an organization such as the Waffen-SS.

SIR DAVID MAXWELL-FYFE: I am trying to relate it to the practical position. That is where I find it very difficult.

Now, to take your example, it is difficult to imagine. Let us take four divisions that were very well known: the Totenkopf, the Polizei, Das Reich, or the 12th Panzer Division. I should have thought that, as a matter of discretion, if it were sought to show that these divisions, about which there is so much evidence as to their participation in crime, did not know of the crimes, the Tribunal would be right in rejecting that.

THE TRIBUNAL (Mr. Biddle): Well, the question would come up more whether the acts of the members of certain divisions were known generally throughout the whole Waffen-SS, would it not?

SIR DAVID MAXWELL-FYFE: With the greatest respect, I find it very difficult to see how the knowledge or absence of knowledge of a particular division in the Waffen-SS could affect the question of criminality of the SS as a whole.

THE TRIBUNAL (Mr. Biddle): Well, again, I am not asking you as to knowledge in a particular division; I am asking you as to general knowledge, throughout the entire Waffen-SS, of the acts of a particular unit.

SIR DAVID MAXWELL-FYFE: Well, if someone is prepared to say, “I knew every division of the Waffen-SS, and in my opinion no one in the Waffen-SS had any knowledge or had any opportunity of knowing of the crimes,” then the evidence would be admissible. Its weight would be so negligible that, I should submit, it would not detain the Tribunal long.

But I concede that if someone is prepared, laying the proper ground for his evidence, to say, “I can speak; I have the grounds for and the opportunity of speaking on the general position,” then I do not see how the Tribunal could exclude it.

THE TRIBUNAL (Mr. Biddle): The matter is very practical because we have to advise Counsel for the Defendants what material they can introduce, and do that very soon.

SIR DAVID MAXWELL-FYFE: Certainly.

THE TRIBUNAL (Mr. Biddle): Now let me ask you a few other questions.

On what basis, Sir David, do you contend that the Reich Cabinet was a criminal organization as of January 30, 1933, when, if I remember correctly; there were only three members of the Nazi Party who were in the Cabinet: Göring, Hitler, and Frick? Do you think that if three out of a very much larger number, some twenty odd, could be said to be part of a criminal organization, that makes the entire Cabinet criminal?

SIR DAVID MAXWELL-FYFE: Certainly, on the facts. It must be remembered that Hitler had refused to take office as vice chancellor during the months before that, before the date that you put to me. He had refused on the ground that, as vice chancellor, he would not be in a position to carry out his Party program. On that basis the Defendant Von Papen and Hitler negotiated, and Hitler came into power on the 30th of January. It is the case for the Prosecution that those who formed part of that Cabinet knew that they were forming part of a cabinet in which Hitler was going to work out his program, as has been declared on so many occasions. That is the first point. Secondly, it is the case for the Prosecution that the Defendant Von Papen did join in introducing the Nazi conspirators into the Government with that knowledge and with the purpose of letting them have their way in Germany. And the same must apply—it has not been investigated to the same extent, because they are not defendants—to the industrialists and the Party, who were acting with them in the Cabinet. They must be taken to have known, just as Gustav Krupp knew and supported, just as Kurt von Schröder knew and supported, the aims of the Nazis whom they introduced and co-operated with in the Government.

Thirdly, the personalities of the Nazis in the Government—Hitler himself, and the Defendants Göring, Frick, and Dr. Goebbels, who I think became Propaganda Minister either at the same time or very shortly afterwards—show that these people, they have shown it by their acts, were not persons to take second place. They introduced at once the Führerprinzip into operation in the states, and these other people in the Cabinet at that time accepted the Führerprinzip and united in placing Hitler and the Defendant Göring and the other conspirators in the position of power and authority which enabled them to carry out their monstrous crimes that are charged against them.

I will give you one other reference. It was within a few months of that period that the Defendant Schacht became Plenipotentiary for War Economy and began the preparations for the economic side of the creation of Germany’s war potential.

For all these reasons I submit that the actions of the Reich Cabinet at that date were deliberate. The same applies to the Defendant Von Neurath; it is the whole case of the Prosecution, as to the case against Von Neurath, that he sold his respectability and reputation to the Nazis in order to help them buy with that reputation and respectability a position of power in Germany, with the conservative circles in Germany, and with the diplomatic circles in Europe with whom he came in touch. For all these reasons, Your Honor, I submit that the Reichsregierung at that time was thoroughly infected with the criminality which we suggest in this case.

THE TRIBUNAL (Mr. Biddle): In relation to the political leaders, let me ask you this, Sir David:

In your opinion, would it be necessary to establish the responsibility of political leaders of lower grades to show that, as a group, they were informed of plans to wage aggressive war or to commit War Crimes or Crimes against Humanity? In other words, I take it there is some obligation to show that information. Does that rest simply on the fact that these crimes were being perpetrated, or is there any evidence of that information?

SIR DAVID MAXWELL-FYFE: There is evidence—and if I might just indicate the kind of evidence there is—on the first stage of the acquisition of totalitarian control in Germany, which is the first stage in the conspiracy, that is, apart from the Party program, there are the extracts from the Hoheitsträger magazine. You remember, Hoheitsträger are all the political leaders. On the anti-Semitic part of that there are documents, which are Exhibit USA-240 (Document Number 3051-PS) and Exhibit USA-332 (Document Number 3063-PS), which are shown in the transcript at Pages 1621 and 1649 (Volume IV, Pages 47 and 66). On the question of war crimes against Allied airmen you will remember that a document was circulated to Reichsleiter, Gauleiter, Kreisleiter, with instructions that Ortsgruppenleiter were to be informed verbally with regard to the lynching of Allied airmen. That document is Document Number 057-PS, shown in the transcript at Page 1627 (Volume IV, Page 50). And that the hint was taken by at least one Gauleiter is shown by Document L-154, Exhibit USA-325, at Page 1628 (Volume IV, Page 51).

Then, there is a Himmler order to senior SS officers, to be passed orally to the Gauleiter, that the police are not to interfere in the clashes between Germans and aviators. That is Document Number R-110, Exhibit USA-333, shown at Page 1624 (Volume IV, Page 49). Then there is a declaration by Goebbels inciting the people to murder Allied airmen, which is shown at Page 1625 (Volume IV, Page 50). Similarly, with regard to foreign labor, there is a telegram from Rosenberg to the Gauleiter asking them not to interfere with the confiscation of certain companies and banks.

There is Jodl’s lecture to Reichsleiter and Gauleiter at a later stage. There is an undated letter from Bormann to all Reichsleiter and Gauleiter, informing them that the OKW had instructed guards to enforce obedience of prisoners of war refusing to obey orders, if necessary, with weapons.

THE TRIBUNAL (Mr. Biddle): Sir David, if I may interrupt you for a moment. I was familiar with the evidence with respect to the Gauleiter and Reichsleiter. My question, you will remember, was addressed to the lower levels, the Blockleiter.

SIR DAVID MAXWELL-FYFE: Well, I think one can summarize it that even as far as lower levels are concerned you have the four points: You have Mein Kampf, the Party Program, Der Hoheitsträger, and the fact that conferences were constantly held throughout the organization.

As I say, I have dealt with the evidence on the Jews, the lynching of Allied airmen, and I think I mentioned the letter from Bormann to the Reichsleiter, Gauleiter, and Kreisleiter about assisting in increasing the output of prisoners of war. And there is an instruction from Bormann down to the Kreisleiter about the burial of Russian prisoners of war. There is a decree for insuring the output of foreign workers that goes down towards the Gruppenleiter.

All these matters are in evidence, and we submit that there is particular evidence on practically every point. And on the general point, as I said, you have these publications, coupled with the evidence that conferences were held, apart from the general Führerprinzip which would, and did, make the Zellenleiter and the Blockleiter the final weapon in order to ensure that the people acted in accordance with the leader’s wishes.

THE TRIBUNAL (Mr. Biddle): Let me ask you just two questions, and then I will finish with regard to the SA. Would you say that a member of the SA who had joined, let us say, in 1921, and resigned the next year, was guilty of conspiring to wage aggressive war and guilty of War Crimes?

SIR DAVID MAXWELL-FYFE: Yes, in this sense. If I may recall, I answered a question that you were good enough to put to me a day or two ago as to when the conspiracy started. A man who took an active and voluntary part as a member of the SA in 1921 certainly, in supporting the Nazi Party, was supporting the published program of the Party which had the aims which you have just put to me.

That is certainly put clearly in Article 2 of the Party Program as the getting rid of the dictate of Versailles and the Anschluss, getting the Germans back to the Reich, which, of course, is only a polite way of saying destroying Austria and Czechoslovakia.

Therefore, that man had these aims in view.

With regard to War Crimes, I respectfully repeat the answer that I put to you the other day, that it was an essential tenet of the Nazi Party that they should disregard the life and safety of any other people who stood in the way of the securing of their ambitions. A person who deliberately joins an organization with that aim, and with that aim getting more and more clearly related to practical problems as week succeeded week, was taking part in a first essential step of involving mankind in the miseries that we have seen; because it is that tenet, applied to every facet of human life and human suffering, which has caused the crimes which this Tribunal is investigating.

THE TRIBUNAL (Mr. Biddle): Well, I can see how you might say that with respect to conspiracy in War Crimes, but I want to be perfectly clear also that you say, on the substantive crime of committing War Crimes, that a man joining the SA in 1921 and leaving in 1922 would have committed those War Crimes in the beginning of 1939.

SIR DAVID MAXWELL-FYFE: If you put to me the substantive War Crimes, I respectfully remind you that under Article 6 the last words are:

“Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in the execution of such a plan.”

Under the Charter, in my respectful submission, that is enough to make them responsible for the crimes.

THE TRIBUNAL (Mr. Biddle): Now only one other question. What do you contend was the function of the SA after the Röhm purge?

SIR DAVID MAXWELL-FYFE: The function was still to support all Nazi manifestations in the life of Germany. You remember that Dr. Löffler was careful to except—very frankly and fairly he excepted the 10th of November 1938. The SA—and I gave another example how they were formed in the Government General—we have also given examples, which I think you will find in my appendix, of the participation—limited participation, but still a participation—in the War Crimes and Crimes against Humanity.

But the main point of the SA after that time was to show that here were 3 million people who had come into the organization which had provided the force to bring the Nazis into power, and it had the forceful size needed to bring the Nazis into power in those days. They were then joined by 2½ million people, which brought their numbers up at that time very high. They went down again later on, but they were high in 1939, and they provided a great immoral force behind the Nazi Party. They provided strong support and were ready on all occasions; whenever a demonstration had to be staged, the SA were there to give their support. They were an essential instrument for maintaining the Nazi control over the German Reich.

THE TRIBUNAL (Mr. Biddle): I take it, then, that the function, in your opinion, did not change in substance after the purge? Would you say that?

SIR DAVID MAXWELL-FYFE: The aim did not change. It did not need to do half as much, because, of course, by the end of 1933 all the other political parties were broken. Part of the SA’s original task, as I think Dr. Löffler put it, had been to safeguard the Defendant Göring when he was making a speech—I should have put it that it was to prevent the other people from having a free run when they made speeches—and to deal with the clashes between the various groups. That was unnecessary, because all political opposition had been destroyed. Therefore they became rather—I forget the exact term—a sort of cheer leader or a collection of people who would always be ready to give vociferous support.

You must have heard, Your Honor, of the meetings coming over the wireless with regulated cheers. It became more supporting, rather than dealing with opposition, but essentially the aim was the same, to keep the grip.

THE PRESIDENT: Dr. Dix, it is now nearly quarter past 5. Do you think that this discussion can be closed this evening before 6 o’clock?

DR. RUDOLPH DIX (Counsel for Defendant Schacht): Mr. President, I believe I can finish in 5 minutes.

THE PRESIDENT: All right. Do the other prosecutors wish to add anything?

GEN. RUDENKO: I would like to make a few short remarks, Mr. President.

THE PRESIDENT: How long do you think you will be, General Rudenko?

GEN. RUDENKO: I think about 10 minutes; no more.

THE PRESIDENT: Does the French prosecutor wish to add anything?

THE TRIBUNAL (M. De Ribes): I have nothing to add.

THE PRESIDENT: Dr. Dix, what I really want to know is whether there is any prospect of our finishing this discussion tonight. General Rudenko wishes to speak for about 10 minutes, and if the defendant’s counsel—of course, you will understand that a discussion of this sort, an argument of this sort, cannot go on forever; and in the ordinary course one hears counsel on one side and counsel on the other side, and then a reply; one does not go on after that. Do you know how many of the defendants’ counsel want to speak?

DR. DIX: Mr. President, I know that.

THE PRESIDENT: I think probably the best thing would be if we were to adjourn now and to sit in open session tomorrow, and then we shall probably be able to conclude this argument in about an hour tomorrow. Do you agree with that, General Rudenko?

GEN. RUDENKO: I agree.

THE PRESIDENT: Do defendants’ counsel think we shall be able to conclude it in about an hour tomorrow morning?

[Several counsel nodded assent.]

THE PRESIDENT: Very well; we will adjourn now and sit at 10 o’clock tomorrow morning.

[The Tribunal adjourned until 2 March 1946 at 1000 hours.]

SEVENTY-SECOND DAY Saturday, 2 March 1946

Morning Session

THE PRESIDENT: General Rudenko.

GEN. RUDENKO: Your Honors, permit me to make a few supplementary remarks concerning the criminal organizations, a problem to which the Tribunal has devoted much attention in the last few days.

I consider it essential, in the first instance, to clarify completely the legal aspect of this problem. There is in the Charter of the Tribunal a marked absence of any statement to the effect that the recognition of an organization as being of a criminal nature would automatically entail the bringing to trial and, further, the condemning of all the members of these organizations. On the contrary, the Charter contains a definite indication of an opposite nature. Article 10 of the Charter, repeatedly quoted at this Trial, states that the national courts have the right, though not the obligation, to bring to trial members of organizations declared as criminal. Consequently, the question of the problem of the trial and the punishment of individual members of criminal organizations lies exclusively within the scope of the national tribunals.

The legal sovereignty of every country that has adopted the Charter of the Tribunal is thus limited in one respect only: The national courts cannot deny the criminal character of an organization, once it has been declared to be criminal. The Tribunal can impose no further limitation on the legal sovereignty of the contracting parties.

Therefore, Justice Jackson has stated here—and with reason—that the recognition of an organization as being of a criminal nature and therefore automatically entailing the mass condemnation of all its members, is a mere figment of the imagination; I would add, that has not sprung from legal grounds but from some entirely different source.

It appears to me that this legal problem is also based on a definite misunderstanding. One of the Counsel for the Defense, Dr. Servatius, was speaking here of the legislative authority of the Tribunal. The authority of the International Military Tribunal, organized by four states in the interests of all freedom-loving peoples, is enormous; but, of course, this Tribunal, as a legal organization, does not and cannot possess any legislative authority. When solving the problem of the criminal character of an organization, the Tribunal is only exercising the right entrusted to it by the Charter, that is, to solve independently the question of the criminality of the organizations. Of course, the verdict of this Tribunal, when coming into force, acquires the value of a law, but that is the value attached to any of the verdicts of the courts once it has been delivered.

Counsel for the Defense Kubuschok has stated here that the decision of the Charter with regard to the criminal organizations is a legal innovation. This, to a certain extent, is true. The innovation consists in the Charter of the International Military Tribunal and all its articles, whose creation, per se, is an innovation in the first instance. But should the Defense consider it possible to deplore this fact, I would consider it opportune to remind them of the causes of these legal innovations.

The very evil deeds committed by the defendants and their associates, deeds hitherto unknown in the history of mankind, have, of necessity, imposed new legislative measures for protecting the peace, the liberty, and the lives of the nations against criminal attempts. Moreover, the states which created this Tribunal and all peace-loving people remain invariably faithful to the ideals of law and to the principles of justice. Therefore, responsibility for participation in criminal organizations will be established only when personal guilt has been proved. In reality, the national courts will decide the problems of individual responsibility.

A few words now on the tactical side of the problem: It has been stated here that several detachments of the SS did not follow any criminal objective. It is difficult, Your Honors, to find within the fascist machinery neutral organizations which did not follow criminal objectives. Thus, the Defense Counsel for the SS, Mr. Babel, mentioned the existence of a research department for dog breeding within the SS. It would appear that this was an organization of general utility. It seems, however, that the learned dog breeders in this organization were engaged in training hounds to attack human beings and to tear their appointed victims to pieces. Can we isolate these dog breeders from the SS?

In Danzig another scientific research institute was engaged in the preparation of soap from human fat. Perhaps we should exonerate these soap boilers as well from all criminal responsibility?

At this point two practical suggestions have been put forward by the Defense Counsel: The isolation, as a separate activity, of the case of the criminal organizations and the establishment in the various camps of a Defense organization having as its purpose the collection of information and evidence. In practice, however, both proposals would create insoluble difficulties for the Tribunal in the execution of the immense task imposed upon it by the nations.

This task is precisely formulated in the Charter which instructs the Tribunal to solve the problem of the investigation of concrete facts concerning members of these organizations. Therefore an appeal to the Tribunal to isolate and consider the case of the criminal organizations as an independent activity is tantamount to an appeal to the Tribunal to infringe the articles of the Charter.

Article 9 of the Charter decides the problem of the criminal organizations when investigating the case of any one particular member, but it also has one other meaning for the Trial. It shows, as I have already mentioned, that the fact on which the statements and the solution of the question of the criminality of the organization are based is the presence in the dock of the accused representatives from the corresponding organizations. As is known, in the present case all the organizations which the Prosecution suggests should be considered as criminal are represented in the dock.

There is evidence in this case which amply suffices to admit the criminality of these organizations. Therefore the calling of special witnesses, capable of giving evidence on these organizations, can appear only as a supplementary source of evidence. I am bringing these matters to a close, Your Honors, and in closing I cannot omit one argument of the Defense. It was stated here by the Defense that as a result of the admission of the criminality of these organizations millions of Germans, members of these organizations, would be brought to trial. Together with my colleagues of the Prosecution I am not of this opinion, but there is something more I would like to say.

By this reference to hypothetical millions the Defense is attempting to hinder the progress of justice. However, before us, the representatives of the nations who have borne the burden and the suffering of the struggle against Hitlerite aggression, before the conscience and consciousness of all freedom-loving people, appear other figures, other millions of victims irrevocably lost, tortured to death in Treblinka, Auschwitz, Dachau, Buchenwald, Maidanek and Kiev. It is our duty to spare no effort to crush the criminal system directed by the fascist organizations against humanity. Your Honors, the extent of the crimes committed by the Hitlerite brigands cannot be imagined. However, we are not blinded by sentiments of revenge and have no intention of destroying the entire German people in retaliation. But justice does not permit us to swerve and thus give free play to the committing of new crimes.

We are deeply convinced that the Tribunal will unswervingly follow the path towards a just and rapid verdict and that it will, in full measure, chastise those whose crimes have shattered the earth.

THE TRIBUNAL (Mr. Biddle): General Rudenko, may I ask you a few questions?

General Rudenko, you remember that Mr. Justice Jackson suggested certain tests that we should use before we found an organization criminal, whether the tasks and the purpose of the organization were open and notorious, in order to show that the members knew what they were doing.

Now, if we find that any organization is criminal we would necessarily find, I presume, on that test, that its actions were open and notorious. Now, if a member of that organization found to be criminal was then tried by one of the national courts, I suppose under that finding he would not have any right to show that he did not know about it, because we would have found that the knowledge was so open and notorious that he must have known, so he could not raise as a defense that he had no knowledge of the criminal acts, could he?

GEN. RUDENKO: That is quite true. But we are bearing in mind the fact that the national courts investigating the problem of the individual responsibility of individual members of the organizations will, of course, proceed from the principle of individual guilt, since, naturally, we cannot exclude the possibility that in the organization of the SA, which fundamentally and in an overwhelming majority was aware of its criminal purpose, there might yet be individual members who might have been lured into the organization, either by deception or by some other reasons, and have been unaware of its criminal purpose.

THE TRIBUNAL (Mr. Biddle): But that would not be any defense to him, would it? He could not say he had no knowledge, because we would have already found that the knowledge was so open and notorious that he must have known.

GEN. RUDENKO: Why? I personally proceed from the standpoint that if the national court investigates the case of members who plead ignorance of the criminal purpose of the organization to which they belonged, the national court must examine these arguments submitted in their defense and estimate them accordingly.

THE TRIBUNAL (Mr. Biddle): How could they consider that, if we make a rule that the activities of the organization are so notorious that he must have known? How can he then say he did not know?

GEN. RUDENKO: I still maintain the point of view, and I still interpret and understand the Charter to mean that the judgment of the International Military Tribunal should determine and decide the question of the criminal character of the organizations, but where the question of individual responsibility and guilt of every member of this organization is concerned, the decision falls exclusively within the competence of the national courts. It is therefore extremely difficult to foresee all the possible individual cases and the eventualities which might arise when investigating a category of individual defendants.

You yesterday submitted a question to Sir David Maxwell-Fyfe concerning a member of the SA who had joined the organization in 1921 and left a year later. These, of course, are special cases and I cannot state how numerous they are; they are unavoidable, and when we come to the question of the extent of his information, the reasons for his entering and the reasons for his leaving this organization, when we come to estimate the value of his actions, it seems to me that it should be done by a national court which will examine the findings of the defense and appreciate them accordingly.

THE TRIBUNAL (Mr. Biddle): Can you say now what defense he would have before the national court, except the defense that he was never a member? Does he have any other defenses so far as we know? Does the Law Number 10 permit him any other defenses?

GEN. RUDENKO: It is difficult for me, at the present moment, to say what arguments the members of these organizations may put forward, for were I to speak, it would be on assumption. But I, for instance, consider, that the argument produced—if produced—which might be considered sufficient to exonerate this member of the organization would be that he had been coerced into joining.

THE TRIBUNAL (Mr. Biddle): May I ask you two more questions.

You used the expression that any evidence given by the defendants would be merely supplementary. That expression is not known to our law, and I would be very interested in your telling us what you meant by supplementary evidence. I do not know what the term means.

GEN. RUDENKO: I did not put it that way. This is perhaps an inaccuracy of translation. What I did say, speaking of questions connected with further investigations of the matter of the criminal organizations, was that this investigation should be carried out together with the investigation of the case of any one member of this organization, inasmuch as representatives of those criminal institutions are now in the dock. But I do say that this is already conclusive material for the recognition, or the denial, of the criminal nature of this organization.

But the Tribunal can, of course, consider this evidence as inadequate, or, shall we say, the Defense may consider that further supplementary evidence may be needed. In this connection, I consider that the calling of witnesses capable of submitting special evidence on the problem of the criminal or non-criminal character of these organizations may be presented to the Tribunal as supplementary evidence.

THE TRIBUNAL (Mr. Biddle): One other question on the SA, which I asked Sir David yesterday.

What do you consider was the function of the SA after the Röhm Purge, or, to put it a little differently, what criminal act do you believe the SA was engaged in?

GEN. RUDENKO: I consider that the SA after the Röhm incident committed the same criminal acts as the other organizations of Hitlerite Germany. I wish in confirmation of this evidence to refer to facts like the seizure of the Sudeten territory. As is well known, detachments of the SA played an active part in this affair.

All the subsequent events which occurred in Germany in connection with the Jews and, later, in the territories seized by Germany—Czechoslovakia and others—these criminal events took place with the connivance of this organization—the SA.

THE TRIBUNAL (Mr. Biddle): Thank you.

THE PRESIDENT: Does the Prosecutor for the French Republic wish to say anything?

THE FRENCH PROSECUTOR: No.

DR. DIX: I have, as counsel for the Defendant Schacht, an indirect interest in the question of the criminality of the group Reich Cabinet (Reichsregierung) because Schacht was a member of the Reich Cabinet. I want to point out, however, at the very beginning that I do not want to make detailed statements now either of a legal nature or in regard to the facts of the case. I shall do that rather at the time of my concluding speech.

What I want and seek now, and for which I ask the support of the Tribunal, is a clarification and amplification of those answers which Mr. Justice Jackson and Sir David Maxwell-Fyfe gave yesterday to your questions, Mr. Biddle.

I should like to point out that it is, of course, clear to me that I have no right to ask any questions of the members of the Prosecution. Formally speaking, I could at the most ask the Tribunal to supplement the questions which were put yesterday by the Tribunal. I believe, however, that this formal objection has no practical significance, because I am convinced that Sir David, who will see the pertinence of my request to have his answer extended, will be prepared to amplify the answer given to the question by Mr. Biddle without discussing the theoretical question, whether he is under any obligation to do so.

Sir David Maxwell-Fyfe was asked yesterday whether he considers the Reichsregierung, that is to say, the Reich Cabinet, as it was composed on 30 January 1933, in view of the then relatively small number of National Socialist cabinet members, criminal even at that time and if so, whether he is of the opinion that this hypothetic criminal character was at that time discernible to other people.

Sir David answered this question of Mr. Biddle’s in the affirmative and based this answer (1) on the contents of the Party program and (2) on the fact that already at that time the Leadership Principle had been set forth in the program.

I should like to ask if Sir David would supplement his answers along the following lines: Does Sir David really mean to say that the Leadership Principle as such, that is to say, purely as an abstract theory, is not only to be rejected politically or for other reasons but is also to be considered criminal? I want to make it understood that I am speaking about the abstract principle, without considering any factual developments in the ensuing period of time.

Concerning his second answer, that the Party program occasions him to declare that even at that time the Reich Cabinet is to be considered criminal and was recognizable as such, this answer—not directly in response to Mr. Biddle’s first question put in the course of further questions addressed to him by the Tribunal—he added to and substantiated by declaring that the aim expressed in the Party program of eliminating the Treaty of Versailles and the announcement therein of the desire for the annexation of Austria were the criminal points in this program.

May I ask Sir David to state, first, whether these two points of the Party program, that is to say, the abrogation of the Treaty of Versailles and the Anschluss, were with the exception of the Leadership Principle, the only points of the Party program which caused him to consider that program criminal, that is, to consider a government criminal which knew that program? Secondly, I should like to ask whether he really wants to put forward the opinion that an attempt to attain a revision or an abrogation in a peaceful fashion, that is, by way of negotiations, of a treaty found to be oppressive, very oppressive, by a nation, can be considered criminal.

Furthermore, I should like to ask him to state whether, considering the great democratic principle of the right of self-determination of nations and considering the history of the annexation movement in Austria itself—and I remind him of the plebiscite of 1919 when this Anschluss was demanded by, one may safely say, 100 percent of the Austrian population—he as a politician would consider a political party or a political program criminal which aimed at reaching this goal in a peaceful fashion. And here I should like to stress, again in order not to be misunderstood, that the later development and everything which actually happened and anything which might not have happened in accordance with the Party program is to be left out of consideration and only the Party program as such taken into consideration. Upon that, of course, the sense of his answer depended when he said, “Yes, the Party program is the basis of the criminal character.”

Now, finally, to come to the end, it would be consistent with the logical course of my explanations, to wait until Sir David has decided on this question, an answer to which I should like to request from Sir David and also from Mr. Justice Jackson, who is not here today. . .

THE PRESIDENT: [Interposing.] Dr. Dix, the Tribunal will, of course, consider anything that you have said insofar as it refers to matters of principle, but they do not think that this is the proper time for Counsel for the Defense to pose questions to counsel for the Prosecution. The matter has already been fully dealt with, and the Tribunal do not propose to ask any further questions of the Prosecution unless the Prosecution wish to say anything in answer to what you have to say.

DR. DIX: Your Lordship, that was what I took the liberty of saying at the beginning. I realize that it is Sir David’s free will and decision as to whether he cares to comply with my request to add to his answer to the questions posed by Mr. Justice Jackson. That I have to leave to him.

I have only a short question, which is intended to prevent our misunderstanding each other. It is always well not to be misunderstood.

I remember—but I may be mistaken, and that is why I wish to ask Sir David what Mr. Justice Jackson declared as his opinion—that he did not consider the Party program, as such, criminal. As I have said, this is what I remember. I did not take any notes on it, because it did not strike me particularly at that time, since I considered it self-evident. Therefore I may be mistaken. But if my memory is correct, I should like to ask Sir David to state whether there is any uniform attitude on the part of the Prosecution toward this point.

THE PRESIDENT: Dr. Dix, the Tribunal asked the Prosecution to present their arguments in principle on the question of these organizations, and they wished also to hear counsel for the organizations in order that these matters should be cleared up, with a view to any possible evidence which might have to be given. They have heard counsel for all four prosecutors. They have asked them questions which they thought right to ask them in order to clear up any points. They have heard counsel for all the organizations and they have heard Counsel for the Prosecution in reply. They do not propose to ask any further questions of the Prosecution at this stage. Of course Counsel for the Prosecution and Counsel for the Defense will be fully heard at a later stage.

DR. DIX: I have come to the end of my statement. I leave it to the Court and Sir David as to whether he wants to answer these questions now.

DR. SEIDL: Mr. President, I should like to give a short explanation to the question as to which of the indicted organizations, the Defendant Frank belonged. Is that possible at this moment?

THE PRESIDENT: Dr. Seidl, the Tribunal do not think this is an appropriate time for any of the counsel for individual defendants to go into matters connected with the charges against the organizations. They will, of course, be heard in the course of their own defense, but this is not the appropriate time. This is only a preliminary discussion for the purpose of clarifying the issues which relate to the organizations.

DR. SEIDL: Yes, but I should like to use this opportunity to clarify a mistake which slipped in the day before yesterday. The day before yesterday I protested against the statement that the Defendant Frank was a member of the SS and this seems to have been translated incorrectly.

THE PRESIDENT: But Dr. Seidl, won’t it appear in the shorthand notes? You have not seen the shorthand notes yet?

DR. SEIDL: I have not seen the transcript yet, but I believe that by error “SS” was translated as “SA.” The Defendant Frank has never denied that he was an SA Obergruppenführer. What I wanted to point out is only that the statement in the Indictment that he was an SS general is not correct and also that the statement in Annex B about the nature of the criminal element is not pertinent, because it is said there that he was an SS general. But I attach importance to the fact that the Defendant Frank has never denied that he was an SA Obergruppenführer.

THE PRESIDENT: Very well, but you will have an opportunity to develop the whole case of Frank when your turn comes.

DR. SEIDL: Yes, but the question is merely this, as to whether the Defendant Frank was a member of the SS or not. As long as the Prosecution do not present any definite proof of the membership of the Defendant Frank in the SS, I have to contradict this statement. I do not believe that it is the task of the Defense to prove that the Defendant Frank was not a member of the SS. I am convinced that, on the other hand, this is one of the tasks of the Prosecution.

THE PRESIDENT: Very well; I have heard what you said.

DR. SERVATIUS: Dr. Servatius, for the Leadership Corps. . .

THE PRESIDENT: Dr. Servatius, the Tribunal are prepared to hear counsel for the organizations very shortly in the rebuttal, but only very shortly, as otherwise we may go on interminably.

DR. SERVATIUS: I do not want to make a speech, but merely to speak for about 5 minutes, in order to define my attitude towards a few matters of evidence. First, I have two questions to ask concerning the limitation of the proceedings to certain groups of members. I should be grateful if the Prosecution could give a statement as to whether the exception of certain parts of the organizations, as has taken place, is a final one or whether other procedures and steps are being held in reserve. This was stated originally in reference to the Leadership Corps. Concerning the limitation of the proceedings to certain groups of members in reference to the Leadership Corps, I do not wish to make any further motion inasmuch as that limitation has already been effected. I should be glad, however, if a decision could still be reached concerning the women. The female technical aides who were employed in the offices cannot, in my opinion, be included in the staffs. At any rate, they do not belong to the Leadership Corps, although they worked with the staffs. These women themselves are of this opinion, and also the officers in the camps shared this opinion. Accordingly not a single application for leave to be heard has been made by any woman in the British zone.

I presume it is known that women, as a matter of principle, were kept away from politics in the National Socialist State; and therefore, they can hardly be connected with the crimes stated in Article 6.

Now I should like to speak about two points concerning questions of evidence. As every profession creates the tools which it needs, so the jurist creates concepts to solve his problems. These concepts are not created for their own sake; thus the concept of the criminal organization shall serve to call guilty persons to account who would otherwise possibly evade this responsibility of theirs. In establishing the Charter the procedure was this, that one did away with the traditional structure of the state in order to reach the individual organs. But in order to be able to seize these organs, one brought them together again through the concept of the guilt of conspiracy. In this way, however, only a relatively small circle can be reached, since its members would have to be bound to each other by means of an agreement. In order to enlarge this circle by means of legal technique, the concept of a criminal group or organization was created. This organization is involved in the agreement of conspiracy only at the very top, while the members automatically, without their own knowledge, are included in the conspiracy. Such a definition of the concept of a criminal organization is justifiable only insofar as it is useful in getting hold of the really guilty persons and only the guilty ones.

In order to define the limits of this concept, I should like to discuss two further points concerning the determination of guilt and therefore necessarily relevant to the question of admissibility of evidence. First, there is the question of the members’ lack of knowledge of this criminality—the lack of knowledge resulting from secrecy—and then the attitude of the members after they had recognized the offenses being committed. In my opinion, the examination of guilt cannot be dismissed by pointing to the alleged knowledge of foreign countries about the real conditions. In foreign countries a propaganda was effective which exaggeratedly brought these things to light. In Germany all these facts remained secret, since because of their very nature they had to be secret—for instance, what was going on in the extermination camps—and because they had to be kept secret for political reasons. Moreover, the things which have become known here were so unimaginable that even in Germany one could not have believed them, had they become known during the war. It must be relevant to determine not whether a single individual member had no knowledge, but that 99 percent of the individual members acted in good faith. In this case, the organization is not criminal, but there could have been a criminal in it. If this is determined, then the legal construction of the criminal organization is superfluous and thereby false. The legal concepts existing until now will then be sufficient for bringing the guilty to trial.

The next viewpoint: The criminal nature or the criminal character of which the Charter speaks shows that that must be something which concerns the entire organization, and that it must be a continuous state of affairs. Individual acts which were rejected as wrong by the organization or the overwhelming majority of its members cannot establish the criminal character of the organization. The attitude of all the members to the incriminating acts is therefore of decisive importance and thus of evidentiary relevancy.

We do not need the concept of the criminal organization in order to punish individual criminals whose acts were rejected by the majority. Among such individual cases, in organizations which comprise millions of members, there may be cases in which smaller or even larger groups or merely certain local districts took part.

I believe that it is really a major task of the Tribunal to define, with the objectivity of the judge, the nature of this guilt as applied to the entire organization. I am of the opinion that the points I have mentioned, the secrecy of these facts and the attitude of the members after gaining knowledge, must form the basis for the collecting of evidence.

THE TRIBUNAL (Mr. Biddle): I want to ask some questions.

Dr. Servatius, I would like to ask you—and I will ask other counsel for the organizations—whether in general you accept the definition of criminal organizations suggested by Mr. Justice Jackson, which is found on Pages 19 and 20 of his statement? You will remember that he made five general tests. Now, in order to determine what evidence should be taken, we must determine what is relevant. Now, the test of what is relevant depends on a general definition of what is common to all organizations for that purpose. Now, do you or could you now say whether in a general way you accept those tests for the purpose of taking evidence?

DR. SERVATIUS: I have not yet thought about that and have not had a chance to discuss it with my colleagues. I should be grateful if we would be given such an opportunity. Perhaps this afternoon a representative of the Defense Counsel for the organizations could report to the Court about this.

THE TRIBUNAL (Mr. Biddle): Let me ask you another question. What, in your mind, are the tests that should be applied for the purpose of taking evidence?

DR. SERVATIUS: I did not quite understand the question.

THE TRIBUNAL (Mr. Biddle): I said that Mr. Justice Jackson had suggested a definition from which the relevancy of certain evidence could be established. Now, have you got any suggestion to offer for that same purpose?

DR. SERVATIUS: I should not like to commit myself without having spoken to my colleagues. It is a question of great importance which I should not like to deal with by myself.

THE TRIBUNAL (Mr. Biddle): Yes, but it is the basis of this entire argument. The very purpose of the argument was to develop that.

DR. KUBUSCHOK: In the course of yesterday’s debate the problem was discussed as to whether the task set before the Tribunal by the Charter can be considered a legislative act. The question was brought up as to whether, if we answer the preliminary question in the affirmative, the Court has the possibility of giving any binding instructions to the national court which has to try individuals, according to Law Number 10. That concerns, above all, the extent of the examination of the guilt of the individual member and the limitation of the scope of punishment for minor cases. I believe that if we follow up this deliberation we shall be led from a play upon words into a labyrinth when it comes to the practical application. Actually the task given the Court is not a legislative act. It is not a procedural innovation, if the national court in subsequent proceedings is bound by the previous decision of this Tribunal. Such cases are quite plausible and legally admissible. If elsewhere in criminal procedure a criminal court is bound by a previous decision, say of an administrative court, we consider these cases quite in order and unobjectionable. Likewise a criminal court could, for instance, be bound in judging a case of embezzlement to wait for the previous decision of the civil court as to whether the object embezzled was the property of somebody else.

Here, too, nobody would think that the civil judge was undertaking an act of legislation. That another court’s decision is binding on the criminal court and is the premise for its sentence does not in any way mean that the author of the criminal code has not completed his legislative task and that this has now to be done by the court which takes the preceding decision. In my opinion we therefore do not have to consider this point any further, for Article 9, Paragraph 1, of the Charter demands of the Tribunal a clear and unequivocal decision of the question whether the organization is criminal or not.

More cannot be read either into the Charter or into Law Number 10. Yesterday Sir David defined his attitude to the five points which were submitted by me for consideration as to relevancy of evidence. In regard to the two last points he raised the objection that they were to be dealt with in the subsequent trials envisaged by Law Number 10. It was a question of the grounds for exonerating persons—for instance, coercion, deception, et cetera. I want to avoid repetition and point out only the following: It is quite correct that the question of coercion and deception and other reasons for the exoneration of persons be discussed in subsequent trials. In connection with this, Sir David also called the attention of the Court to a really noteworthy problem—that is, the problem of a deception by the state, that is, a problem of mass suggestion. This is really a very important problem. It affects many members, as far as their joining is concerned. But it leads to the broadest deduction as to the guilt of the entire membership and the character of the total organization.

We have therefore to pay particular attention as to how the problem of deception on the part of the state affected the member and thereby was characteristic of the organization. All grounds for the exoneration of persons are therefore also to be examined by the Tribunal in judging the question of the character of the organization. Furthermore, evidence must be taken on the broadest basis.

If the Tribunal were to make any limitation now, there would be the possibility that later, at the end of the Trial, in contrast to its present opinion, it might consider as relevant material now excluded.

In yesterday’s debate the importance of the question was discussed, in regard to the proposed declaration of criminality, as to what should be considered as constituting knowledge on the part of the single member. Sir David here applied the standard of a person of average intelligence and wants to consider as guilty anybody who was above that standard.

I have already recently explained that in regard to laws threatening such a severe punishment as in this case, all systems of penal law require that willful intent on the part of the perpetrator be proved. Offenses of negligence are punishable only in exceptional cases, and then only with minor penalties. At any rate in a case of an offense by negligence it must be clear to the offender that he is under an obligation to examine his action from the point of view of penal law. Law Number 10—and now in connection with it the proposed verdict of this Court—represents an ex post facto law.

In the case of the main defendants the Prosecution have justified the deviation from the generally recognized principle nulla poena sine lege on the ground that they themselves did not act in accordance with this principle and cannot, therefore, base themselves on it now. This, however, does not in any way apply to the organizations, quite apart from the question whether this argument can be accepted at all.

At any rate, however, in considering the element of negligence one should also not overlook the fact that the obligation to exercise attention differs in the case of ex post facto laws from what it would be in the case of existing laws.

In this connection I should like to refer to the fact that the question of whether the statutes of the Party organizations were illegal or not has often been examined already, even earlier, at the time of the Weimar Republic. Political considerations definitely favored such a declaration. Apparently, legal considerations at that time did not let the carrying out of such a procedure seem practical. What measure should we then apply to the individual member’s ability to judge such matters, if the legal problem is so difficult and lends itself so very much to discussion?

The Prosecution has restricted the motion so as to exclude the auxiliary workers in the case of the Gestapo. The reason for this can only have been that in the case of these members knowledge cannot be assumed to be self-evident. I ask that the conclusions drawn in this individual case be applied to the members of other organizations. Should not the individual member of an organization comprising millions who had far less contact with the executive organ than did an auxiliary worker of the Gestapo—should not this member be judged much more favorably, as far as knowledge is concerned, than this group which has been excepted?

Are we not in particular obliged to use the best methods possible to inform ourselves as to the knowledge or lack of knowledge of the individual member? Sir David, in discussing the problem of negligence, suddenly spoke of an ostrich policy. But here we have to consider that the person who sticks his head into the sand in order not to see has actually seen something and therefore does not want to see any more. It is quite different in the case of this member who from the sources at his disposal can gain no knowledge of individual actions; who, in particular, has no knowledge of whether possibly only. . .

THE PRESIDENT: Forgive my interrupting you, but the Tribunal have already heard and listened with attention to your interesting argument, and the argument that they now are prepared to listen to is only a very short argument in rebuttal. As I have already pointed out, it seems to me that the greater part of what you are now saying is what you have already said. We cannot go on hearing these arguments at great length.

DR. KUBUSCHOK: Since I have arrived at the end of my remarks, I should like in conclusion just to introduce one point of view which concerns the defense of the Reich Cabinet. The number of members of the Reich Cabinet is very limited. One half are in the defendants’ dock. Is it really necessary to consider the other half cumulatively as an organization, since the small number of those concerned makes possible an individual trial, with all the legal guarantees given therein? To this extent I should like to refer to the remarks made by my colleague, Dr. Laternser, who mentioned the provision of the Charter that the Tribunal is not compelled to reach a decision but that for reasons of expediency it can refrain from doing so.

THE PRESIDENT: Mr. Biddle wants to ask you some questions.

THE TRIBUNAL (Mr. Biddle): I have just one question. Will you listen to this very carefully?

If the Tribunal find that an organization was being used for a criminal purpose, and certainly, with respect to some organizations, there is ample evidence that might justify such a finding, why, then, would the Tribunal not be justified in holding that organization as a criminal organization insofar as it was composed of persons who had knowledge that it was being so used and voluntarily remained members of the organization? In other words, the definition would state that it consisted of members who had actual knowledge that the organization was engaged in the commission of crime.

DR. KUBUSCHOK: The organization cannot be separated from the total number of its members. The declaration of criminality in connection with Law Number 10 is to affect each individual member. The task of the Tribunal would not be fulfilled if it limited that task and excluded from the organization unspecified individuals. In the task which I have mentioned we cannot overlook the practical purpose, and that will not be guaranteed if such a limitation is made.

THE TRIBUNAL (Mr. Biddle): I will ask just one more question. I do not think you have answered my question. I will put it very simply again.

How would that definition be unfair to any individual?

DR. KUBUSCHOK: If only a limited circle of persons in connection with the organization is branded as criminal, this necessarily results in an injustice to the other members of the organization. The declaration naturally affects the name of the entire organization, and, therefore, the declaration of criminality affects each individual member, even if one tries to limit the definition.

THE TRIBUNAL (Mr. Biddle): Thank you.

THE PRESIDENT: I think in view of the time we had better adjourn for 10 minutes.

[A recess was taken.]

DR. LATERNSER: Mr. President, it was not my intention to make statements today about the concept of the criminal organizations, because I believe that my statements of yesterday on this point were comprehensive. I should merely like to state briefly my attitude to the second question put by Mr. Biddle to my colleague, Kubuschok.

The second question, if I understood it correctly, was as follows: Why is it unfair to the individuals who were members of an organization, or why can it be unfair to them, if this organization is declared criminal? This declaration of the criminality of an organization is certainly unfair to all those members who had no knowledge of any supposedly criminal purpose and aims. For in this question one has to. . .

THE TRIBUNAL (Mr. Biddle): You misunderstood the question, I think; so, to save time—the question was a very simple one. I do not want to go into it unless you want to. I will repeat it again. I said this: If an organization was being used for criminal purposes—and I added that there was very great evidence that such was the case in certain instances—why would it not be proper to hold it a criminal organization insofar as it was composed of persons who had knowledge that it was being so used and voluntarily remained members? Of course, that would exclude from the organization everybody who did not have knowledge that it was engaged in criminal purposes.

DR. LATERNSER: Then I did not understand the question quite correctly, and further statements in regard to these questions, which have now been settled, are unnecessary.

DR. LÖFFLER: I should like first of all to correct a misunderstanding. Sir David stated yesterday in his reply that I had admitted that the SA had participated in the 10th and 11th of November 1938. I emphasize expressly that I stated that only 2 percent of the SA at the most were involved in individual actions, and that obviously applies to this event as well. This example occasions me to underscore what my colleague, Servatius, has previously stated about taking into consideration the so-called mistake of an organization, in a case where an organization deviates from its path and commits an error—which should be avoided. The 98 percent who did not participate, as well as the 2 percent who did participate there, with few exceptions, all regarded this action with aversion and disgust and were not inwardly in agreement with it.

It is therefore an error on the part of the Indictment if on the basis of this single event, on the basis of this exceptional case, general conclusions are drawn as to the general character of the organization. For it is rightfully protested that the very rejection of this action is a proof that this is an exception to the general tendency of the organization.

If, then, it is asserted as a second point that the SA was also concerned with concentration camps, that is also a further typical proof of the false conclusion to which one can come in the case of judgment against the organizations. Of 4 millions there were 1,000 men at the most, that is, only 0.5 percent. The remaining 3,999,000 had no knowledge of this, and this can be proved. No one will wish to claim that the fact that 0.5 percent were involved in something about which the others knew nothing at all allows a conclusion to be drawn as to the question of criminal character. But this small percentage, as such, is not an answer to the question which is being raised at this point. Rather we are, as before, of the opinion that the explanation which was made by attorney Kubuschok absolutely covers the criminal character as formulated by the Defense, if the basic conditions are met, as set down by attorney Kubuschok in agreement with all defense counsel for the organizations. On the basis of this formulation, that question which Justice Biddle previously put to counsel for the various organizations can readily be answered.

I should like to emphasize that yesterday Mr. Justice Jackson made the suggestion that, instead of having countless witnesses, experts be heard on the subject of what willful intent can be assumed in the case of the single organizations. I should like to oppose this emphatically. One cannot hear any witness or any expert who can tell the Court what, so to speak, that “common sense” was on the basis of which the question is to be judged—what knowledge the single members had.

The members, as far as intelligence is concerned, vary greatly. There are those of average intelligence and there are less intelligent members of the organizations. If a judgment is to be passed here which also affects less intelligent members of the organizations and condemns them, then it is a basic principle of law that this should not be done on the basis of what the intelligent members of the organizations might and could have known; that would be an injustice to the average persons and the less intelligent. Not even the average persons can be taken as a basis, since this would be an injustice to the still less intelligent, who would be included in and affected by this judgment.

In conclusion I should like to point out that yesterday’s debate on the question of the effect of the judgment which this Court is to pass confirmed in full measure the fears of the Defense Counsel. Mr. Justice Jackson declared that this judgment would have the character of a declaration. This is not compatible with the statement which Lieutenant General Clay, the Deputy Military Governor of the American occupied zone, made yesterday in an interview for the Neue Zeitung, the American paper for the German population. I should like to quote a sentence from the latest issue which refutes Justice Jackson’s opinion. Lieutenant General Clay declares in regard to the question of the fate of these interned in the United States zone of occupation:

“The decision of the Nuremberg Tribunal will decide what will happen to them. Their number is at present 280,000 to 300,000. Should the International Tribunal at Nuremberg, however, consider all the members of the indicted National Socialist organizations war criminals, then the number will be increased to 500,000 or 600,000.”

The declaration made by Justice Jackson yesterday that no mass retribution is intended could be made only in reference to the present standpoint of his Government. But there is no guarantee that other governments will not take another stand or that his Government, which is not bound to Justice Jackson’s opinion, will not alter its stand.

I should like to conclude with this remark: Justice Jackson mentioned the shock which the combination of the Charter and decision desired by the Prosecution—in connection with Law Number 10—has been to the Defense. I believe that the effect of this shock is not confined to the Defense alone but affects all people who are interested in justice, for if the combination of these various laws gives the national courts the opportunity to call millions of members of organizations to account—among whom, as Justice Jackson also could not deny yesterday, there are innocent people—and if punishments for mere membership ranging from a fine to the death sentence are provided, then it is the duty of the Defense to point out that the procedure here obviously threatens to deviate from the basis of law and will necessarily lead to arbitrary action.

If Justice Jackson then in answer to this refers to the effect of shock in connection with the death of many Jews, one can say that those things happened outside the law and in the name of force. This Charter and this Tribunal, however, want to do away with force and put justice in its place. But justice must be clear and it must be sure.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Tribunal said earlier that certain questions had been asked of me. I am perfectly prepared to answer the three questions if the Tribunal desire their time to be occupied by my so doing.

THE PRESIDENT: I don’t think the Tribunal wish to hear any further arguments unless you particularly want to answer anything.

SIR DAVID MAXWELL-FYFE: I did not intend to argue at all. It was only that Dr. Dix put two questions to me on which he asked my view, and Dr. Servatius one, but I am in the hands of the Tribunal. I do not want it to be thought that the Prosecution are not prepared to answer the questions.

THE PRESIDENT: If you can answer them shortly, we should be quite glad to hear them.

SIR DAVID MAXWELL-FYFE: The first question that Dr. Dix asked me was to clarify what I had said about the Führerprinzip in relation to the Reichsregierung. I can answer that in two sentences. I said that, in addition to the ordinary support which members of the Reichsregierung in 1933 gave to Hitler under the Führerprinzip, they entrusted their consciences and wills to him and adopted completely his points of view.

In order that Dr. Dix may be under no misapprehension with regard to his client, the case for the Prosecution may be put in the words of Dr. Goebbels, one of the conspirators, on the 21st of November 1934, in conversation with Dr. Schacht:

“I assured myself that he absolutely represents our point of view. He is one of the few who accepts the Führer’s position entirely.”

The second point was on the question of the Party program in relation to the Treaty of Versailles and the Anschluss. Dr. Dix asked me to deal with those who desired to effect the aims of the Party program in a peaceful way. The Prosecution say that does not arise, that the Party program must be considered in the background of Hitler and other publications as to the use of force and also as to the existing state of things in the relationship of Germany with the Western Powers and also of treaty obligation to Austria and Czechoslovakia.

The third question that was put to me was by Dr. Servatius, about the Leadership Corps. You will remember, My Lord, that in the statement of the Tribunal the Prosecution were asked, if they were making any limitation, to make it now. That is contained in the statement of the Tribunal. The limitation which we have made—that is, only including the staff in the case of the Reichsleitung, Gauleitung, and Kreisleitung, and excluding the staff in the case of the Ortsgruppenleiter, Zellenleiter, and Blockleiter—is the view to which the Prosecution adhere and which has been agreed upon by the different delegations. I wanted Dr. Servatius to know that that was the position. I don’t intend to repeat the reasons for it which were given by my friend, Mr. Justice Jackson.

THE PRESIDENT: There is only one thing I should like to say. I think it might be useful to the Tribunal, if you have them, to let us have copies of the British statutes to which Mr. Justice Jackson referred and also of certain judgments of the German courts—if you have copies available.

SIR DAVID MAXWELL-FYFE: They will be found for the Tribunal and the Tribunal will receive them within the shortest possible time.

THE PRESIDENT: Mr. Dodd, I understand that you have an affidavit which you wish to put in with reference to the High Command?

MR. DODD: Yes, we do have it. We located this affidavit on Thursday; the Tribunal had inquired about it on the afternoon of the day before—on Wednesday, I believe it was. We have prepared for the Tribunal a list of the offices comprising the German General Staff and High Command as defined by the Indictment in Appendix B. The list was compiled from official sources in the Admiralty Office of Great Britain, the War Office of Great Britain, and the Air Ministry of Great Britain, and supplemental information was obtained from senior German officers, now prisoners of war in England and in Germany. The list is attached to this affidavit, as we intended to submit it this morning to the Tribunal; and the affidavit describes the source from which this information was obtained and it points out that the list does not purport to be exhaustive or necessarily correct in every detail. It is, however, substantially a complete list of the members of the General Staff and of the High Command and of the High Command group, and on the basis of this compilation there appear to have been a total of 131 members, of whom 114 are thought to be living at the present time. I wish to offer the list formally, together with this affidavit, as Exhibit Number USA-778 (Document Number 3739-PS), I ask that it be accepted without reading. However, of course, if the Tribunal would like it read over the public address system, I should be glad to do so.

THE PRESIDENT: No, I do not think you need read it over. Copies have been given to the Defense?

MR. DODD: Yes, they have, Your Honor. They have been given to the Defense.

THE PRESIDENT: Very well. Thank you.

MR. DODD: Colonel Smirnov, if Your Honor pleases, is prepared to read the document with reference to Stalag Luft III. If the Tribunal would like, we will have him do so.

THE PRESIDENT: I think that might perhaps be done on Monday morning.

MR. DODD: Very well.

THE PRESIDENT: The Tribunal will now adjourn.

[The Tribunal adjourned until 4 March 1946 at 1000 hours.]

SEVENTY-THIRD DAY Monday, 4 March 1946

Morning Session

MR. COUNSELLOR SMIRNOV: Sir, a few days ago the Tribunal issued instructions concerning the expedience of reading into the record the official British report on the responsibility for the slaying of 50 officers of the Royal Air Force coincidentally, as far as possible, with the proposed interrogatory of General Westhoff and the senior criminal counsel, Wielen. May I read into the record some of the more essential passages from this report of the British Government? I shall read into the record those parts of the document which, on the one hand, testify to the general character of this criminal act and, on the other hand, establish the responsibility for the crime.

THE PRESIDENT: Colonel Smirnov, you are offering the document, are you, as evidence? You are seeking to put the document in evidence?

MR. COUNSELLOR SMIRNOV: This document has already been presented in evidence and has already been accepted by the Tribunal. I wished only to read into the record certain extracts from this document. It has been submitted as Exhibit Number USSR-413 (Document Number UK-48).

THE PRESIDENT: Very well.

MR. COUNSELLOR SMIRNOV: I am quoting Paragraph 1 of the official British report:

“1. On the night of 24-25 March 1944, 76 R.A.F. officers escaped from Stalag Luft III at Sagan in Silesia, where they had been confined as prisoners of war. Of these, 15 were recaptured and returned to the camp, 3 escaped altogether, 8 were detained by the Gestapo after recapture. Of the fate of the remaining 50 officers the following information was given by the German authorities:

“(a) On 6th April 1944, at Sagan, the acting commandant of Stalag Luft III (Oberstleutnant Cordes) read to the senior British officer (Group Captain Massey) an official communication of the German High Command that 41 officers (unnamed) had been shot, ‘some of them having offered resistance on being arrested, others having tried to escape on the transport back to their camp.’

“(b) On 15th April 1944, at Sagan, a member of the German camp staff (Hauptmann Pieber) produced to the new senior British officer (Group Captain Wilson) a list of 47 names of the officers who had been shot.

“(c) On 18th May 1944, at Sagan, the senior British officer was given three additional names, making a total of 50.

“(d) On or about 12th June 1944, the Swiss Minister in Berlin received from the German Foreign Office, in reply to his enquiry into the affair, a note to the effect that 37 prisoners of British nationality and 13 prisoners of non-British nationality were shot when offering resistance when found or attempting to re-escape after capture. This note also referred to the return of urns containing the ashes of the dead to Sagan for burial.”

The official German version—the official version of the German authorities—indicated that these officers were shot allegedly while attempting to escape. As a matter of fact, as definitely proved by the documentation of the investigation carried out by the British authorities, the officers were murdered—and murdered by members of the Gestapo on direct orders from Keitel and with the full knowledge of Göring.

I shall, with your permission, read into the record in confirmation of this fact two paragraphs—or rather two points—from the official British report, that is, Point 7 and Point 8:

“7. General Major Westhoff at the time of the escape was in charge of the general department relating to prisoners of war, and on 15th June 1945 he made a statement in the course of which he said that he and General Von Graevenitz, the inspector of the German POW organization, were summoned to Berlin a few days after the escape and there interviewed by Keitel. The latter told them that he had been blamed by Göring in the presence of Himmler for having let the prisoners of war escape.

“Keitel said, ‘Gentlemen, these escapes must stop. We must set an example. We shall take very severe measures. I can only tell you that the officers who have escaped will be shot; probably the majority of them are dead already.’ When Von Graevenitz objected, Keitel said, ‘I do not care a damn; we discussed it in the Führer’s presence and it cannot be altered.’”

Point 8: I begin the quotation of the official British report:

“Max Ernst Gustav Friedrich Wielen was then the officer in charge of the Criminal Police (Kripo) at Breslau, and he also made a statement, dated 26th August 1945, in the course of which he said that as soon as practically all the escaped R.A.F. officers had been recaptured he was summoned to Berlin where he saw Arthur Nebe, the Chief of the Kripo head office, who showed him a teleprint order signed by Kaltenbrunner, which was to the effect that on the express order of the Führer over half of the officers who had escaped from Sagan were to be shot after their recapture. It was stated that Müller had received corresponding orders and would give instructions to the Gestapo. According to Wielen the Kripo, who were responsible for collecting and holding all the recaptured prisoners, handed over to the Gestapo the prisoners who were to be shot, having previously provided the Gestapo with a list of the prisoners regarded by the camp authorities as ‘troublesome.’”

I would also ask the Tribunal’s permission to read into the record that part of the text of the official report of the British Government which deals with the methods of investigation in regard to individual officers. This documentation has been systematized and divided into three parts. I take the liberty of reading into the record the data of the findings referring to the three separate parts. I quote Page 3 of the Russian text, beginning from Paragraph 2:

“Flight Lieutenants Wernham, Kiewnarski, Pawluk, and Skanziklas.

“On or about 26th March 1944 . . .

THE PRESIDENT: Colonel Smirnov, are you going to read now some of the evidence upon which the report is based?

MR. COUNSELLOR SMIRNOV: Mr. President, I should like to read out only from the text proper and particularly those parts of the report which testify to the methods of investigation applied in the case of individual officers. I should like to begin reading from the paragraph dealing with the three groups of officers.

THE PRESIDENT: Paragraph 4?

MR. COUNSELLOR SMIRNOV: Yes.

THE PRESIDENT: Very well.

MR. COUNSELLOR SMIRNOV: “On or about the 26th of March 1944 these officers were interrogated at the police station in Hirschberg and were then moved to the civil gaol in that town. On the morning of 29th March Pawluk and Kiewnarski were taken away and later in the day Skanziklas and Wernham left. Both parties were escorted, but their destination was unknown. They have not been seen since and the urns later received at the Stalag showing their names bear the date 30th March 1944.”

And now the next group of British officers:

“Squadron Leader Cross, Flight Lieutenants Casey, Wiley, and Leigh, and Flight Officers Pohe and Hake.

“Between 26th and 30th March 1944 these officers were interrogated at the Kripo headquarters in Görlitz and then returned to the gaol there. During the interrogation Casey was told that ‘he would lose his head,’ Wiley that ‘he would be shot,’ and Leigh that ‘he would be shot.’ Hake was suffering from badly frostbitten feet and was incapable of traveling for any distance on foot. On 30th March the officers left Görlitz in three motor cars accompanied by 10 German civilians of the Gestapo type. The urns later received at the Stalag bear their names and show them to have been cremated at Görlitz on 31st March 1944.

“Flight Lieutenants Humpreys, McGill, Swain, Hall, Langford, and Evans; Flight Officers Valenta, Kolanowski, Stewart, and Birkland.

“These officers were interrogated at the Kripo headquarters in Görlitz between 26th and 30th March. Swain was told that ‘he would be shot,’ Valenta was threatened and told that ‘he would never escape again.’ Kolanowski was very depressed after his interview. On 31st March these officers were collected by a party of German civilians, at least one of whom was in the party which had come on the previous day. The urns later received at the Stalag bore their names and show them to have been cremated at Liegnitz on a date unspecified.”

I wish to draw the attention of the Tribunal to the fact that similar data also relate to different groups of British officers slain by the Germans in Stalag Luft III.

The following page of the text includes identical data relating to Flight lieutenants Grisman, Gunn, Williams, and Milford, Flight Officer Street and Lieutenant McGarr. Similar information is given concerning Flight Lieutenant Long, Squadron Leader J. E. Williams, Flight Lieutenants Bull and Mondschein, and Flight Officer Kierath. The same information is given with reference to Flight Officer Stower, Flight Lieutenant Tobolski, Flight Officer Krol, Flight Lieutenants Wallen, Marcinkus, and Brettell, Flight Officer Picard and Lieutenants Gouws and Stevens, Squadron Leader Bushell and Lieutenant Scheidhauer, Flight Officer Cochran, Lieutenants Espelid and Fugelsang, Squadron Leader Kirby-Green and Flight Officer Kidder, Squadron Leader Catanach and Flight Officer Christensen, and Flight Lieutenant Hayter.

I shall, with your permission, read into the record one more paragraph from this official report. I refer to Paragraph 6 of the official British report and also to Paragraph 5, because it is of essential importance.

THE PRESIDENT: I was going to suggest you should read Paragraph 5.

MR. COUNSELLOR SMIRNOV: I am going to read Paragraph 5 of the British text:

“According to the evidence of the survivors there was no question of any officers having resisted arrest or of the recaptured officers having attempted a second escape. All were agreed that the weather conditions were against them and that such an attempt would be madness. They were anxious to be returned to the Stalag, take their punishment, and try their luck at escaping another time.

“6. The Swiss representative (M. Gabriel Naville) pointed out on 9th June 1944 in his report on his visit to Sagan that the cremation of deceased prisoners of war was most unusual (the normal custom being to bury them in a coffin with military honors) and that was the first case known to him where the bodies of deceased prisoners had been cremated. Further it may be noted that if, as the Germans alleged, these 50 officers who were recaptured in widely scattered parts of Germany had resisted arrest or attempted a second escape, it is probable that some would have been wounded and most improbable that all would have been killed. In this connection it is significant that the German Foreign Office refused to give to the protecting power the customary details of the circumstances in which each officer lost his life.”

Those are the parts of the official report of the British Government which I had the honor to communicate to the Court.

THE PRESIDENT: I think it would perhaps be better if you also read the appendix so as to show the summary of the evidence upon which the report proceeded, Paragraph 9.

MR. COUNSELLOR SMIRNOV: I refrained from reading the appendix because it had already been read in due course by Sir David Maxwell-Fyfe. I shall read it once more with pleasure:

“9. The appendix attached hereto gives a list of the material upon which this report is based. The documents referred to are annexed to this report.

“Appendix.

“Material upon which the foregoing report is based:

“(1) Proceedings of court of inquiry held at Sagan by order of the senior British officer in Stalag Luft III and forwarded by the protecting power.

“(2) Statements of the following Allied witnesses: (a) Wing Commander Day, (b) Flight Lieutenant Tonder, (c) Flight Lieutenant Dowse, (d) Flight Lieutenant Van Wymeersch, (e) Flight Lieutenant Green, (f) Flight Lieutenant Marshall, (g) Flight Lieutenant Nelson, (h) Flight Lieutenant Churchill, (i) Lieutenant Neely, (k) P. S. M. Hicks.

“(3) Statements taken from the following Germans: (a) Major General Westhoff, (b) Oberregierungsrat und Kriminalrat Wielen (two statements), (c) Oberst Von Lindeiner.

“(4) Photostat copy of the official list of dead transmitted by the German Foreign Office to the Swiss Legation in Berlin on or about 15 June 1944.

“(5) Report of the representative of the protecting power on his visit to Stalag Luft III on 5 June 1944.”

THE PRESIDENT: Then, for the purposes of the record, you had better read in the signature and the department at the bottom.

MR. COUNSELLOR SMIRNOV: The document is signed by H. Shapcott, Brigadier, Military Deputy, and is certified by the Military Department, Judge Advocate General’s Office, London, 25 September 1945.

THE PRESIDENT: Colonel Smirnov, so far as the Russian Chief Prosecutor is concerned, does that conclude the case for the Prosecution?

MR. COUNSELLOR SMIRNOV: Yes.

THE PRESIDENT: Thank you.

DR. NELTE: Mr. President, Paragraph 9 of the report which has just been read by the Prosecution mentions the documents which served as a basis for it and says that they are attached to the report. The individual documents on which the report is based are listed in the appendix. I ask the Tribunal to decide whether Document USSR-413 satisfies the requirements of Article 21 of the Charter, since the material on which it was based, and which is expressly mentioned in the report, has not been produced along with it. I request that the Prosecution be asked to make the appendix available to the Defense as well.

THE PRESIDENT: Dr. Nelte, do you mean that you have only had the report made by the Brigadier and have not seen any part of the other evidence upon which the report proceeds?

DR. NELTE: Mr. President, the Tribunal decided during an earlier phase of this Trial . . .

THE PRESIDENT: [Interposing.] Yes, but I did not ask you what we had decided. I asked what you had received. Have you received from the Prosecution the whole of this document or only the report made by the Brigadier?

DR. NELTE: Only the report, without the appendix.

THE PRESIDENT: Well, the Tribunal certainly intended that the whole of the document should be furnished to defendant’s counsel, and that must be done so that you may have all the documents before you.

DR. NELTE: But that has obviously not been done. The appendix expressly mentions statements made by Major General Westhoff and by Oberregierungsrat Wielen. I am not acquainted with either of these statements. They were not attached to the report.

THE PRESIDENT: You must have them. The Prosecution must see that the whole of this document is furnished to the Defense Counsel.

SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I do not think the whole of it has been copied, but if Dr. Nelte will let us know if he wants the whole of it, or a part, we will co-operate the best way we can. The last thing we desire is that he should not have it. We want him to have everything he wants.

THE PRESIDENT: Well, Sir David, will you inform the Tribunal whether the Prosecution have now concluded their case.

SIR DAVID MAXWELL-FYFE: Yes, My Lord. That is the conclusion of the case for the Prosecution.

THE PRESIDENT: Very well. Then we will now proceed with the applications for witnesses and documents by the second four of the defendants: Kaltenbrunner, Rosenberg, Frank, and Frick.

DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): The Defendant Kaltenbrunner wishes to call a number of witnesses whom I will name now. First, Professor Dr. Burckhardt.

SIR DAVID MAXWELL-FYFE: My Lord, if the Tribunal approves, we will adopt the same procedure as was done on the first four defendants.

With regard to the three Swiss witnesses, Burckhardt, Brachmann, and Meyer, the interrogatories were granted on the 15th of December and submitted on the 28th of January. The Prosecution considered that the interrogatories were rather on the vague side and suggested that they might be made more precise. The Prosecution have no objection to interrogatories in principle, and I am sure that there would not be much difference between Dr. Kauffmann and the Prosecution as to the form. That applies to the first three witnesses.

THE PRESIDENT: We are informed that none of these three witnesses has been located yet.

SIR DAVID MAXWELL-FYFE: Well, I respectfully agree, My Lord. That is the position of the Prosecution, that we have no objection in principle to these interrogatories, and if we can help the Court in any way to locate the witnesses, we should be glad to do so.

THE PRESIDENT: When were the interrogatories furnished to the Prosecution?

SIR DAVID MAXWELL-FYFE: The 28th of January, My Lord.

THE PRESIDENT: And were the Prosecution’s objections communicated to the Defense Counsel shortly afterwards, or when?

SIR DAVID MAXWELL-FYFE: I am sorry, I am afraid I have not got that date, My Lord.

THE PRESIDENT: Wouldn’t the most sensible course be for the Prosecution to try to agree upon a suitable form of interrogatory whilst the General Secretary is continuing his inquiries to find the witnesses?

SIR DAVID MAXWELL-FYFE: Yes. Well, if Dr. Kauffmann will communicate with me, I have no doubt that we could agree on a form that would be mutually acceptable.

THE PRESIDENT: Very well.

DR. KAUFFMANN: Mr. President, I think there is no need for me to repeat the individual questions which I have listed in the interrogatory. There are 19 of them. I do not think that I need repeat them now.

THE PRESIDENT: No, certainly not.

DR. KAUFFMANN: The fourth witness is the former German Minister in Belgrade, Neubacher. At present he is in the internment camp Oberursel near Frankfurt, in American custody.

SIR DAVID MAXWELL-FYFE: No objection to this witness.

DR. KAUFFMANN: Does the Tribunal want me to specify the evidence?

THE PRESIDENT: Yes, if you would.

DR. KAUFFMANN: Neubacher will, in the opinion of the Defendant Kaltenbrunner, be able to testify that the order given by Hitler in October 1944 to stop the persecution of the Jews was really given at Kaltenbrunner’s suggestion.

Furthermore, in the opinion of the defendant, he will be able to testify that when Himmler was appointed Chief of the Reichssicherheitshauptamt he put the defendant in charge of Amt III and VI. This seems to me to be important, since so far the Indictment has always been based on the defendant’s definite connection with Amt IV, which is, indeed, borne out to a certain extent by the evidence. Neubacher is expected to be able to testify to this.

THE PRESIDENT: Dr. Kauffmann, if those are the questions which it is desired to interrogate Neubacher on, couldn’t they be dealt with by interrogatories?

DR. KAUFFMANN: According to the information given to me by Kaltenbrunner, Kaltenbrunner attaches importance to the personal appearance of this witness for reasons which are easy to understand. I believe that Kaltenbrunner considers this witness one of the most important witnesses, and he would like to see this witness called.

THE PRESIDENT: Well, the Tribunal will consider that.

DR. KAUFFMANN: The next witness is Number 5, Wanneck, at present in American custody in Heidelberg.

SIR DAVID MAXWELL-FYFE: The Prosecution suggests that the witness Wanneck is cumulative. According to Dr. Kauffmann’s application, he is going to deal with the point that the Defendant Kaltenbrunner was actually occupied mainly with the task of the intelligence service and that he objected to persecution of the Jews. That is already covered by Neubacher, and it is also covered by the cross-examination of the Prosecution’s witness Schellenberg, who was the chief of Amt VI, which Dr. Kauffmann has set out in his note on the witness Neubacher, Number 4, as being one of the Intelligence Ämter.

DR. KAUFFMANN: I leave it to the Tribunal to decide whether this witness could be dealt with by means of an interrogatory. But I do consider the evidence material relevant in the case of Wanneck as well. In a certain sense it is cumulative, but some points in it go further. But I agree to an interrogatory.

The sixth witness is Scheidler.

THE PRESIDENT: Sir David, do you think it would be unreasonable to administer an interrogatory?

SIR DAVID MAXWELL-FYFE: No, My Lord. Generally I make no objection to interrogatories at all.

With regard to Scheidler, he was, as I understand the application, the Defendant Kaltenbrunner’s adjutant, and as such the Prosecution would not make any objection. But I think it would be convenient if I were to draw the attention of the Tribunal to the fact that the next six witnesses, Numbers 6 to 11 inclusive, all deal with concentration camps, and numbers 6, 8, 9, and 11 deal with Mauthausen. I want to give Dr. Kauffmann warning that I shall ask for some selectivity among these six witnesses.

The Prosecution feel that the application for an adjutant is a reasonable one, but it will be reflected in objections to later witnesses.

DR. KAUFFMANN: The defendant naturally considers it important that the adjutant who served him for many years and who accompanied him on every single trip, as Kaltenbrunner told me himself, be called. He knows also, for instance, that the wireless message to Fegelein, which is part of the accusation, did not come from Kaltenbrunner and that his radiogram was never sent. He also knows that Kaltenbrunner had made all preparations for the Theresienstadt camp to be made accessible to the Red Cross. These are things which have not been mentioned by previous witnesses, but which shed some light on the person of the defendant.

THE PRESIDENT: You are speaking now of Scheidler?

DR. KAUFFMANN: Yes.

THE PRESIDENT: Sir David, the Tribunal would like you to deal with the whole of that group together, and then Dr. Kauffmann can answer what you say.

SIR DAVID MAXWELL-FYFE: With pleasure, My Lord.

The next witness is Ohlendorf, who was called as a witness for the Prosecution. The situation as I have found it is that Dr. Kauffmann did cross-examine the witness Ohlendorf on the Defendant Kaltenbrunner’s responsibility on concentration camps on the 3rd of January of this year, at Page 2034 of the transcript (Volume IV, Page 335).

The witness Wisliceny, Number 12, who has not been cross-examined on behalf of Kaltenbrunner by Dr. Kauffmann, would be the natural person to deal with that point. But, of course, if Dr. Kauffmann has any special point for the recalling of Ohlendorf, he will tell the Tribunal.

That is the position.

THE PRESIDENT: Dr. Kauffmann, if you had the opportunity of cross-examining General Ohlendorf and actually availed yourself of the opportunity wasn’t that the appropriate time for you to put any questions which you had on behalf of the Defendant Kaltenbrunner?

DR. KAUFFMANN: I should like to remind you that Kaltenbrunner was ill for more than 12 weeks and that I could get almost no information from him. At the session of 2 January the right of cross-examining the witnesses at a later date was expressly granted me by the Tribunal. I had, as the Court will remember, made a motion to adjourn, and then I was permitted to cross-examine the witnesses at a given time which would suit me.

That appears in the transcript of 2 January 1946.

As these witnesses have all been called in Kaltenbrunner’s absence, I should like to cross-examine now in his presence. I am, however, prepared to forego the cross-examination, if I can talk to the witnesses beforehand. Perhaps it will not be necessary to call one or the other witness.

THE PRESIDENT: What do you mean by one or the other witness? Which is the other? Wisliceny?

DR. KAUFFMANN: Number 7, Ohlendorf, and then Number 11, Höllriegel, and Number 12, Wisliceny, also Number 14, Schellenberg. All these witnesses have been heard here, and Kaltenbrunner was ill at the time.

THE PRESIDENT: What do you say about it, Sir David?

SIR DAVID MAXWELL-FYFE: I should suggest that Dr. Kauffmann cross-examine Number 11, Höllriegel, and Number 12, Wisliceny, whom he has not cross-examined so far. And then, if there is any special point which remains to be dealt with by the witness Ohlendorf, Dr. Kauffmann can make a special application to the Court.

THE PRESIDENT: Yes. Well, the Tribunal would like to know what position you take about the defendants’ counsel seeing these witnesses and discussing with them their evidence before they call them. I mean, there is a distinction between cross-examination when defendants’ counsel cannot see them and calling them as their own witnesses when they can see them.

SIR DAVID MAXWELL-FYFE: Well, the Prosecution feel that they ought simply to cross-examine witnesses that have been called by the Prosecution, unless there are very special circumstances. I think that Dr. Seidl showed special circumstances with regard to the case that he mentioned of one witness in special relation to the Defendant Hess. But as a general rule, the Prosecution submit that witnesses that they have called should be cross-examined without prior consultation.

THE PRESIDENT: Well, Sir David, the Tribunal would like to know your view. Of course, we are not deciding the point now, but we should like to know your view as to whether it would be a proper course to allow the defendants’ counsel to see the particular witness in the presence of a representative of the Prosecution, because it may be that that would lead to a shortening of the proceeding, because the defendants’ counsel might after that not wish to cross-examine the witness any further.

SIR DAVID MAXWELL-FYFE: Well, I am afraid that would require discussions with my colleagues on each particular witness. I am afraid I have not covered that point; witnesses 11 and 12 were called by my American colleagues and although I take the general position which I put before the Tribunal, I have not discussed that point; but I shall be pleased to discuss it with them and perhaps to inform the Tribunal later on in the day.

Of course, you will appreciate the fact that there may be a special point relating to a special witness that may come up in this connection.

DR. KAUFFMANN: Perhaps I can explain this. The witness Ohlendorf was reserved for me for cross-examination. In accordance with an agreement made with the American Prosecution, I dispensed with a cross-examination of Ohlendorf and on this condition was allowed to speak to him. I think it would be quite fair if I could do the same with other witnesses. I forego the cross-examination and can speak to the witnesses beforehand. Perhaps one or the other will turn out to be unnecessary.

THE PRESIDENT: I am not quite sure that you understand the view being put to you, Dr. Kauffmann. The view is that when a witness is called on behalf of the Prosecution the defendants’ counsel certainly have the right to cross-examine the witness, not to see the witness beforehand, but only to cross-examine him. If on the other hand they are entitled to call that witness as their own, then they are entitled to see him beforehand, which is. . .

DR. KAUFFMANN: Yes, that is what I mean. But if I am allowed to speak to the witness beforehand, then the Court will understand that I should like to avoid as far as possible the presence of a representative of the Prosecution, since the reasons which might cause me to forego the calling of a witness would then be known to the Prosecution. I think everyone will understand that, and I also think it is fair.

THE PRESIDENT: I wanted to clarify what the difference in view between you and the Prosecution is. The Prosecution said that when the witness was called for the Prosecution the right of the defendants is only to cross-examine. Can you help us further with respect to this group, Sir David?

SIR DAVID MAXWELL-FYFE: Certainly. With regard to Eigruber, Number 8, he is no longer in Nuremberg, and he is being held as a probable defendant in the case concerning Mauthausen Camp, which will be dealt with by a military court, and therefore the Prosecution suggests that in these circumstances, as he is one of this group dealing with concentration camps in general and Mauthausen in particular, he ought to be dealt with by interrogatories.

Then with regard to Höttl, Number 9, he deals with two aspects of one point, that is, that Kaltenbrunner on his own initiative ordered the surrender of the concentration camp of Mauthausen and that he took steps to induce Himmler to release people from concentration camps. These seem to be general points that again might be conveniently dealt with by interrogatories.

And the same applies to the witness Von Eberstein, who deals with the point that Kaltenbrunner is alleged not to have given an order to destroy the concentration camp at Dachau, and that he did not give an order to evacuate Dachau. The Prosecution suggest that these ought also to be interrogatories.

With regard to the next witness, Höllriegel, the Prosecution make no objection to further cross-examination, and respectfully suggest to the Tribunal that he will be able to deal with the question of Mauthausen, which is one of the main questions that this whole group of witnesses is called to deal with.

DR. KAUFFMANN: [Interposing.] Maybe I can say something so that. . .

THE PRESIDENT: [To Sir David Maxwell-Fyfe.] Are you in agreement with Number 12, in the same group?

SIR DAVID MAXWELL-FYFE: Number 12 is not in the same group, because he deals with the question of Kaltenbrunner’s relations with Eichmann and with reports he received regarding the action against the Jews. We have no objection to this witness being called for cross-examination, as Dr. Kauffmann did not cross-examine him.

THE PRESIDENT: Yes, Dr. Kauffmann?

DR. KAUFFMANN: Concerning the witness Eigruber, Number 8, may I point out that this witness is here in Nuremberg. However, I agree that interrogatories be sent. The subject of the evidence itself seems to me decidedly relevant, for what Eigruber is supposed to testify is neither more nor less than the fact that the concentration camp at Mauthausen was directly supervised by Himmler through Pohl and the commander of the camp. Kaltenbrunner denies the possession of exact knowledge regarding Mauthausen. The witness Höttl. . .

THE PRESIDENT: You were in error in saying he was here in town. Sir David said he has been removed from Nuremberg for the purpose of trial by a military court. So perhaps you would not object to interrogatories in that case.

DR. KAUFFMANN: Yes. The witness Höttl is, in my opinion, an important witness. As we know, Kaltenbrunner is also accused of having participated in the conspiracy against the peace. Here I intend to prove that Kaltenbrunner conducted an active peace campaign ever since 1943. An important name in this connection is Mr. Dulles. He is, according to Kaltenbrunner, the late President Roosevelt’s confidential agent. Mr. Dulles was in Switzerland. According to Kaltenbrunner, meetings between them constantly took place with this object. I believe that this subject of evidence is relevant.

THE PRESIDENT: You mean that you want Dr. Höttl in person, not by way of interrogatories?

DR. KAUFFMANN: Yes, if I may ask for that.

THE PRESIDENT: The Tribunal will consider that.

DR. KAUFFMANN: Witness Number 10, General of the Police Von Eberstein, is called to prove that the statement of another witness by the name of Gerdes is untrue. The Tribunal will perhaps remember that the Prosecution submitted an affidavit by a man named Gerdes who was an important figure in Munich. He was the confidential agent of the former Gauleiter of Munich. In his affidavit, Gerdes accuses Kaltenbrunner of ordering the destruction of Dachau through bombing. Kaltenbrunner emphatically denies that.

THE PRESIDENT: That is a matter which could be clearly dealt with by interrogatories, whether or not Kaltenbrunner did give an order to destroy a concentration camp, or an order to evacuate Dachau. Surely those are matters which admit of proof by interrogatories.

DR. KAUFFMANN: I agree. The same problem arises in connection with the next witness, Number 11, the witness Höllriegel, who has already been heard. Am I to have the opportunity of speaking to this witness before he is cross-examined? Kaltenbrunner denies that he ever saw gas chambers, et cetera.

THE PRESIDENT: Dr. Kauffmann, isn’t Number 11 really cumulative to Number 6, whom you particularly wanted to call?

DR. KAUFFMANN: Yes, Mr. President, certainly.

THE PRESIDENT: Anyhow, the Tribunal will consider the question whether you ought to be given the right merely to cross-examine or to recall as your own witness, with reference to Numbers 11 and 12.

DR. KAUFFMANN: Yes. Just a word about witness Number 12. Eichmann, as is well known, was the man who carried out the whole extermination operation against the Jews, and Kaltenbrunner’s name has been mentioned in connection with this operation. Kaltenbrunner denies it. For that reason I consider Wisliceny a relevant witness.

THE PRESIDENT: That concludes that group. What about the other ones, Sir David? Are they in the same category?

SIR DAVID MAXWELL-FYFE: Not quite, but I think it might be convenient if I deal with them.

Dr. Mildner, Number 13, is sought to testify that Kaltenbrunner did not authorize the chief of the Gestapo to sign orders for protective custody or internment, and I should submit that in view of the previous evidence, of Scheidler and Number 4, Neubacher, Dr. Mildner’s evidence is cumulative and that interrogatories would suffice.

As to Schellenberg, Number 14, I have already said that the Prosecution make no objection to his recall for cross-examination.

Finally, Dr. Rainer. We do object to that request, because the object of his testimony, that Kaltenbrunner recommended to the Gauleiter of Austria not to oppose the advancing troops of the Western Powers and not to organize Werewolf movements, is in our submission irrelevant to the issues before this Tribunal.

THE PRESIDENT: Yes. Dr. Kauffmann?

DR. KAUFFMANN: The witness Dr. Mildner, Number 13, is here in Nuremberg, in custody. I have asked to call this witness because he has submitted an affidavit containing certain accusations against Kaltenbrunner which Kaltenbrunner denies. I do not think that an interrogatory can clear up these difficulties.

Now, Number 14 . . .

THE PRESIDENT: Dr. Mildner had submitted an affidavit?

DR. KAUFFMANN: Yes, Sir. There is a reference in the Indictment to an affidavit made by Dr. Mildner. I believe it was on 3 January. The witness’ name was mentioned in connection with the charges against Kaltenbrunner. There are one or two affidavits. . .

THE PRESIDENT: But if the affidavit has not been produced to the Court, what have we got to do with it? We have not seen it, at least in my recollection. You know about it, Sir David?

SIR DAVID MAXWELL-FYFE: I have not been able to trace this affidavit of Dr. Mildner’s. I do not remember it, but I will willingly check the reference that Dr. Kauffmann has given.

THE PRESIDENT: Of course, if the Prosecution have used the affidavit, then you would have no objection to the witness being called for cross-examination?

SIR DAVID MAXWELL-FYFE: Well, in general, no. The reason why I am rather surprised is that usually that point has been taken when it is sought to use the affidavit. The Defense Counsel involved has asked for the production of the witness—but I will have it looked into, this particular point; but in general the Tribunal may take it that unless we put forward a special point, where an affidavit has been given, and where we have not argued to the Court previously, it is a very good case for the witness’s being brought here, if it is convenient.

THE PRESIDENT: I did not understand that Dr. Kauffmann was saying that the affidavit had actually been put in by the Prosecution, but there was some reference made to it. Is that right, Dr. Kauffmann?

DR. KAUFFMANN: It would not take me long to look it up. I have the files for 3 January here.

THE PRESIDENT: Dr. Kauffmann, we will give you an opportunity for looking that up. We will adjourn now for 10 minutes.

[A recess was taken.]

DR. KAUFFMANN: The name of Mildner appears in the transcript of 2 January, not in the form of an affidavit but in the form of a letter written by a third person and this letter is only mentioned in connection with Mildner’s name; it is not an affidavit. I should like to request that Mildner be interrogated in writing.

Now turning to witness Number 15 . . .

THE PRESIDENT: Fourteen?

DR. KAUFMANN: We have already dealt with Number 14.

THE PRESIDENT: Oh, you have already dealt with that? Very well, then 15.

DR. KAUFFMANN: Witness Number 15 is Rainer, who was a Gauleiter. I should like to request that this witness be heard as well. He is in Nuremberg. The subject of the evidence seems important to me. In the case against Kaltenbrunner, he is not expressly charged with the contrary; but if we are dealing with peace and violations of peace, an effort on the part of the defendant to prove that he has done everything in his power to prevent further bloodshed seems to me relevant.

THE PRESIDENT: Would an interrogatory satisfy you for that witness?

DR. KAUFFMANN: Yes, My Lord.

THE PRESIDENT: Yes.

DR. KAUFFMANN: I have not yet submitted any documents, Mr. President. Later on, I may present some affidavits, but, as I have not yet received them, I cannot present them at the moment.

THE PRESIDENT: The Tribunal understands, Dr. Kauffmann, that you wish to reserve for yourself the right to apply to put in documents at a later stage.

DR. KAUFFMANN: Yes, I request that.

THE PRESIDENT: The Tribunal will consider that and let you know when they make the order.

Yes, Dr. Thoma?

SIR DAVID MAXWELL-FYFE: Dr. Thoma suggests that we deal with the document list.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL-FYFE: On the first six documents, which are quotations from various books on philosophy, the Prosecution submit that they are irrelevant to the question of the ideology propounded by the Defendant Rosenberg, which the Prosecution make part of the case against him.

Of course, if the purpose is merely that Dr. Thoma would quote from such books in making his speech, and if he would let us know the passages he wants to quote so they can be dealt with mechanically, we do not make any anticipatory objection.

I think that takes us up to Number 6—which are purely general books on philosophy. The Prosecution view with some dismay all these books being put in evidence and the Prosecutors having to read them.

I think I have made the position quite clear that if Dr. Thoma wishes to use them to illustrate the argument, and if he lets us know the passage, we make no general objection, but we object to their being put in as evidence, as not being relevant to the matters before the Court.

DR. THOMA: I do not think that it is possible without a consideration of world philosophy before Rosenberg’s time to understand the morbid psychological state of the German people after their defeat in the first World War. Unless this psychological condition is appreciated, it is impossible to understand why Rosenberg believed that his ideas could help them. I am extremely anxious to show that Rosenberg’s theories were representative of a phase of contemporary philosophy taught in similar form by many other philosophers both at home and abroad. I am extremely anxious to refute the charges made against Rosenberg’s ideology as degenerate and—I must quote the expression—a “smutty ideology.” I have to bear in mind that the members of the Prosecution, especially M. De Menthon, who has made a special study of the National Socialist ideology, made the very natural mistake of confusing the extravagances and abuses of this ideology, usually dubbed “Nazism,” with its real philosophic content. The French Revolution of 1789 was in the same way, I believe, represented by neighboring peoples as a disaster of the first magnitude, and all the rulers in Europe were called upon to fight against it.

I believe that the Court was specially impressed by M. De Menthon’s statements, which represented the Nazi ideology as having no spiritual value and described it as a dangerous doctrine. I think we must allow the possibility of its being taught in other countries as well at that time. I should like, therefore, to ask permission to present the philosophical systems of the time in question, by which I mean the views expressed by other philosophers on Rosenberg’s main concepts, especially the question of blood or race, the soil as a fact of nature and as political and economic living space. Science declares that these ideas are based on the irrational presentation of natural and historical facts. They cannot be dismissed for that reason as unscientific, although they may be disturbing to rationalism and humanism.

I should like, in particular, to prove that these ideas have been respected and developed by rational and empirical science on account of their significance, and that they have been put into practice by other countries in their policy—a fact which I think is important. I need only remind you of the U.S.A. immigration laws, which also give preference to particular races.

SIR DAVID MAXWELL-FYFE: As I understand Dr. Thoma, he wants to use the teachings of other philosophers as illustrations and arguments. If he is going to quote from them, then all that the Prosecution ask is that he tell us which passages he is going to quote, but we suggest that it is not relevant for us to go into an examination of, say, M. Bergson’s book as a matter of evidence.

It is a perfectly clear distinction, and I suggest that Dr. Thoma will be well able to develop the point which he has just put with the limitation which I have just suggested.

THE PRESIDENT: Dr. Thoma, the Tribunal would like to know what it is that you actually propose. Are you proposing to put in evidence certain passages from certain books and that the Tribunal should read them or are you simply asking for the production of books so that you may consult them, read them, and then incorporate in your argument certain ideas which you may gather from the books?

DR. THOMA: I ask the Tribunal to note—officially, at least—the contents of the books which I shall submit. I shall not read all these quotations from the books, but I shall ask the Tribunal to note the outlines. I think it is important for the Tribunal to have the passages quoted from these books actually before them, so that they may have a clear picture of the philosophical—and particularly of the ethical situation—of the German people after their defeat in the World War.

THE PRESIDENT: But the books are not books of any legal authority. You can only cite, surely, to a court of international law, books that are authorities on international law. You can, of course, collect ideas from other books which you can incorporate in your argument. You cannot cite them as authorities.

DR. THOMA: Gentlemen, by submitting quotations from the works of well-known philosophers who presented ideas similar to Rosenberg’s, I propose to prove that this ideology is to be taken quite seriously. In the second place I want to prove that those features of Rosenberg’s ideology which have been branded as immoral and harmful are extravagances and abuses of this ideology; and in my opinion it is most important for the Tribunal to know from a consideration of the history of philosophy, that even the best ideas—such as the French Revolution—can degenerate. I should like to point out these historical parallels to National Socialism and to Rosenberg’s ideology.

I also need these books to prove that Rosenberg was concerned only with the spiritual combating of alien ideology and that he was not in a position to protest any more energetically against the brutal application of his ideology in National Socialism, but that as a matter of principle he allowed scientific discussions of his works to proceed freely and never called in the Gestapo against his theological opponents.

He assumed that his ethnic ideas were not to be carried through by force, but that every people should preserve its own racial character and that intermingling was only permissible in the case of kindred races. He believed that this ideology was for the good of the German people and in the interest of humanity generally.

For these reasons I believe that the Tribunal, in order to have a vivid picture of the background of the development of National Socialism, should inform itself of the spiritual conditions of that time.

THE PRESIDENT: The Tribunal will consider the argument you have addressed to it.

SIR DAVID MAXWELL-FYFE: With regard to Document Number 7, that is, excerpts from certain books, the first five are from Rosenberg’s own works, and the last is a book by another author on Hitler.

Again I submit that if Dr. Thoma wants to support the thesis contained in the first half of his note—that “the Defendant Rosenberg does not see individual and race, individual and community, at contrast but represents the new romantical conception that the personality finds its perfection and its inner freedom by having the community of the racial spirit developed and represented within itself”—if Dr. Thoma will give any of the extracts from Rosenberg’s works on which he bases that argument, then he can present them at whatever part of his case is convenient; and similarly, with regard to the specific points set out in the second part of his note—there again, if he will give the relevant extracts, they can be considered and their relevancy for the purpose of this Court dealt with when he introduces them in his presentation. But again I take general objection to the fact that either the Court or the Prosecution should read all these works and treat them as evidence. I developed that about the previous document.

DR. THOMA: Gentlemen, if I quote Rosenberg’s actual words and ask the Tribunal to take official notice of them, I shall be in the fortunate position of being able to show that Rosenberg’s philosophy and ideology differ basically from the extravagances and abuses which were attributed to him and to which he took exception.

I am in a position to show that it is clear from his works that Rosenberg intended the Leadership Principle to be restricted by a special council exercising an authoritative, advisory function. I shall also be able to show that the Myth of the Twentieth Century was a purely personal work of Rosenberg’s which Hitler did not by any means accept without reserve. More especially, I am in a position to prove that Rosenberg, as his works will show, would have nothing to do with the physical destruction of the Jews and that, as far as his writings show, he took no part in the psychological preparations for war and that, as far as his writings show, he worked for a peaceful international settlement, especially between the four great European powers of the period. Therefore I beg the Tribunal to allow me to submit the real, genuine quotations from his writings as evidence material.

THE PRESIDENT: Dr. Thoma, the Tribunal will consider the whole question of the production of and the citation from these books.

SIR DAVID MAXWELL-FYFE: Number 8, My Lord, falls into a rather different field. The first 11 documents seem to be books and writings containing Jewish views of an antinational basis. The Prosecution reminds the Tribunal that the questions at issue are: Did the defendants as co-conspirators embark on a policy of persecution of the Jews; secondly, did the defendants participate in the later manifestations of that policy, the deliberate extermination of the Jews? Within the submission of the Prosecution, it is remote and irrelevant to these important and terrible accusations that certain Jewish writings, spread over a period of years, contained matters which were not very palatable to Christians.

DR. THOMA: Gentlemen, I should like to reply to this point as follows: I am not interested in showing that the Nazi measures against the Jews were justified. I am interested only in making clear the psychological reasons for anti-Semitism in Germany; and I think I am justified in asking you to listen to some quotations of this kind taken from newspapers, since they must by their very nature offend the patriotic and Christian susceptibilities of very many people.

I must go rather more deeply into this question, too, in order to show the reason for the existence of the so-called Jewish problem in history and religion and the reason for the tragic opposition between Jewry and other races. I should like to quote both Jewish and theological literature on the point.

THE PRESIDENT: The Tribunal will consider the question.

SIR DAVID MAXWELL-FYFE: My Lord, I think the Tribunal can take the remaining documents, 9 to 14, together. They seem to deal with specific and, if I may say so without the least intention of offense, more practical matters, in that they deal with the government of the Eastern territories, for which this defendant was responsible; and the Prosecution has no objection to my friend’s using these documents in such a way as it seems fit to him.

DR. THOMA: I should like to mention the following points in connection with the documents:

I have had four additional documents allowed in part by the Tribunal. I have not been able to submit them, because they have not yet been handed over to me; but I would like to tell the Tribunal what they are: First, a letter written by Rosenberg to Hitler in 1924, containing a request by Rosenberg not to be accepted as a candidate for the Reichstag; second, a letter written by Rosenberg to Hitler in 1931 regarding his dismissal from the post of editor in chief of the Völkischer Beobachter, the reason being that Rosenberg’s Myth of the Twentieth Century created a tremendous stir among the German people. Rosenberg asked at the time that his work be considered a purely personal work, something which it actually was, and that if his writing was in any way detrimental to the Party, he would ask to be released from his position as editor of the Völkischer Beobachter; third, I should like to include a directive from Hitler to Minister for the Eastern Occupied Territories Rosenberg, dated June 1943, in which Hitler instructs Rosenberg to limit himself to matters of principle; fourth, an eight-page letter from Hitler to Rosenberg, written by hand and dating from the year 1925.

THE PRESIDENT: And the fourth one? Will you state the fourth one, the fourth document?

DR. THOMA: I am coming to that.

Point 4—a letter written by Hitler to Rosenberg in 1925, in which Hitler stated his reasons for refusing on principle to take part in the Reichstag elections. Rosenberg’s view at that time was that the Party should enter the Reichstag and co-operate practically with the other parties.

I have just learned that this letter is dated 1923.

Gentlemen, this is something of decisive importance. From the very beginning, Rosenberg wanted the NSDAP to co-operate with the other parties. That could constitute the exact opposite of a conspiracy from the start. May I present to the Court a copy of my four applications?

SIR DAVID MAXWELL-FYFE: My Lord, these seem to be individual documents whose relevancy can be finally dealt with when Dr. Thoma shows their purpose in his exposition. I do not stress that the Tribunal need not make any final decision on them at the present time.

DR. THOMA: I should like to refer to the fact that I have already asked the General Secretary to admit these documents.

THE PRESIDENT: Dr. Thoma, have you the documents in your possession?

DR. THOMA: Yes, My Lord. The only documents that are lacking are the four I have just mentioned. They are still in the hands of the Prosecution.

THE PRESIDENT: They are in the hands of the Prosecution, are they?

DR. THOMA: Yes.

SIR DAVID MAXWELL-FYFE: I have not appreciated that. If Dr. Thoma wants the documents we will do our best to find them. The first time I heard of them, of course, was when Dr. Thoma started speaking a few minutes ago. If the Prosecution have them or can find them, they will let Dr. Thoma have them or have copies of them.

THE PRESIDENT: May I ask you, Dr. Thoma, why it is that you have not put in a written application for these four?

DR. THOMA: I have made such a request, My Lord, several days or a week ago. I made the first request already in November.

THE PRESIDENT: For these four documents?

DR. THOMA: It is like this: The first two documents were granted me already in November or December 1945, but I have not as yet received them.

THE PRESIDENT: Very well, we will consider that. Well, that finishes your documents, does it not?

DR. THOMA: Yes.

SIR DAVID MAXWELL-FYFE: My Lord, with regard to the witnesses, it might be convenient if I indicated the view of the Prosecution on the, say, first six. The Prosecution has no objection to the first witness, Riecke, the State Secretary of the Ministry of Agriculture, or to Dr. Lammers, who is being summoned for a number of the defendants, or to Ministerialrat Beil, who was the deputy chief of the Main Department of Labor and Social Policy in the East Ministry.

With regard to the next one, Number 4, Dr. Stellbrecht, the Prosecution suggests that that is a very general matter which does not seem very relevant, and they say that Dr. Stellbrecht should be cut out, or at the most that that point be dealt with by a short interrogatory.

We also object to 5 and 6, General Dankers and Professor Astrowski. General Dankers is sought to say that certain theaters and museums of art in Latvia remained untouched, and that hundreds of thousands of Latvians begged to be able to come into the Reich.

There are papers about certain laws. The Prosecution submits that that evidence does not really touch the matters that are alleged against the Defendant Rosenberg and again they make objection.

Professor Astrowski, who is alleged to be the Chief of the White Ruthenian Central Council and whose whereabouts are still unknown, who was last in Berlin, is to be called to prove that the Commissioner General in Minsk exerted all efforts in order to save White Ruthenian cultural goods. There again the Prosecution says that that is a very general and indefinite allegation and, if the defendant and certain of his officials are called to give evidence as to his policy and administration, it is suggested that the witnesses 5 and 6 are really unnecessary.

I might also deal with Number 7, because the first seven witnesses are the subject of a note by Dr. Thoma. Number 7 is Dr. Haiding, who is the Chief of the Institute for German Ethnology, and it is sought to call him in order to prove that in the Baltic countries cultural institutions were advanced and new ones founded by Rosenberg. That witness, the Prosecution submits, falls into the same category as Dankers and Astrowski. But, with regard to him, if there is any general point, they say that he could be dealt with by interrogatories but certainly should not be called.

It is relevant for the Tribunal to read the note under Number 8 dealing with these witnesses. Dr. Thoma says:

“The witnesses can present evidence for the refutation of the Soviet accusation that Rosenberg participated in the planning of a world ideology for the extermination of the Slavs and for the persecution of all dissenters.”

The Prosecution submits that the three witnesses that they have suggested, coupled with the interrogatories, if necessary, in the case of Stellbrecht and Haiding, should cover these points amply.

DR. THOMA: I agree with Sir David that as far as Dr. Haiding and Dr. Stellbrecht are concerned an interrogatory will be sufficient. Regarding witnesses Numbers 5 and 6, I was interested in bringing in as witnesses people who actually lived in these countries and who have their personal impressions of Rosenberg’s cultural activities; and I request that these witnesses be granted.

THE PRESIDENT: Very well, the Court will consider that.

SIR DAVID MAXWELL-FYFE: The witness Scheidt comes into the story of the Defendant Rosenberg’s connection with Quisling, and this has been dealt with by interrogatories by the Defense and by certain cross-interrogatories by the Prosecution. This is obviously an important part of the case, and I suggest that the Tribunal does not decide as to the personal summoning of Scheidt until the answers to the interrogatories are before the Tribunal.

Number 10 is Robert Scholz, the department chief in the Special Staff of creative art, and roughly the evidence is to show that the defendant did not take the works of art for his personal benefit. The Tribunal ordered the alerting of this witness on the 14th of January, but on the 24th of January the application for this witness was withdrawn and it is now renewed by Dr. Thoma. If the Tribunal will look at the way in which it is put in Dr. Thoma’s application, which is limited and guided by certain specific acts on which Mr. Scholz can speak—the Prosecution suggest that the Tribunal might think the most convenient way was again to get a set of interrogatories on Mr. Scholz, and see how he can deal with the many individual points put to him.

DR. THOMA: Gentlemen of the Tribunal, the case of the witness Wilhelm Scheidt touches the question of Norway. Scheidt is the decisive witness as to the reports made by Quisling of his own volition without being invited to do so, either through the Amt Rosenberg for foreign policy or through the Reich Ministry for Foreign Affairs. I believe that a personal hearing, a cross-examination, of this witness Scheidt is extremely important, because he can give a great deal of detailed information which is decisive for the question of whether or not Hitler conducted a war of aggression against Norway.

I have been granted an interrogatory for the witness, Departmental Director Scheidt, and I have already taken steps to confer with the Prosecution in this connection. The witness Wilhelm Scheidt has not made an affidavit; but I must point out to the Tribunal that I should have to be present when the affidavit is made and that I should be allowed to question the witness myself, in common with the Prosecution. I should like to repeat my request to cross-examine this Wilhelm Scheidt as a witness.

THE PRESIDENT: Dr. Thoma, if the witness was granted to you as a witness to give evidence in court, it would not be necessary for you to have any representative of the Prosecution when you saw the witness wherever he might be. The advance of a witness would entitle you to see him yourself and to obtain proof of his evidence. Is that clear?

DR. THOMA: So far I have been granted only an affidavit. I have not been granted him as a witness as yet.

THE PRESIDENT: Yes, I only wanted to make clear to you the difference between interrogatories and being allowed to call a witness to give all the evidence. Of course, if you are submitting to written interrogatories, you would not see the witness; but if, on the other hand, you were going to call the witness as a witness or to present an affidavit from him, you would then be at liberty to see the witness before he made his affidavit or before he drew up his proof.

DR. THOMA: Then I should like to put the request that Wilhelm Scheidt be called as a witness.

THE PRESIDENT: I understand that you are making that request.

DR. THOMA: As far as Robert Scholz is concerned, I should like to point out to the Tribunal that Scholz was the director of the Special Staff entrusted with the practical application of measures to be taken for the safekeeping of works of art in both eastern and western districts and I should like to draw the special attention of the Tribunal to the fact that a number of learned German experts were members of this Special Staff and that they did a great deal of very conscientious work in safeguarding, restoring, and protecting these works of art and in preserving them for posterity. The way in which this Special Staff did its work is of decisive importance, therefore, for a good many men. Robert Scholz knows every detail of the procedure. Robert Scholz can testify, in particular, to the fact that Rosenberg did not appropriate for himself a single one of the enormous wealth of art treasures that passed through his hands and that he kept a careful record of those that went to Hitler and Göring. He also knows that all these works of art—or, at least, the greater part of them—were left where they were at first, especially in the East, and were only brought to the Reich when it was no longer safe to delay.

I beg the Tribunal to hear this important witness.

THE PRESIDENT: Dr. Thoma, can you explain why the application was withdrawn on the 24th of January?

DR. THOMA: It was said then—I think by the British or American Prosecution—that the Special Staff would not be mentioned again during the proceedings. The French Prosecution, however, have now given detailed accounts of the looting of France; and so this witness is once more required.

THE PRESIDENT: That concludes your witnesses, I think?

DR. THOMA: I have one other request. I want to call a further witness, and I have already filed a request with the General Secretary for this witness, ministerial Subdirector Bräutigam. Bräutigam was Junior Assistant Secretary in the Ministry for the Occupied Eastern Territories, and he is to be called as a witness to prove that Rosenberg, in his capacity of Reich Minister for Occupied Eastern Territories, did not persecute the churches but granted freedom to all religious sects by the issue of an edict of tolerance; that, further, Rosenberg himself consistently opposed the use of force, supported a policy of promoting culture and represented the view that the peasant class should be strengthened and established on a healthy basis. Further—and this seems to me to be particularly significant—that very many letters and telegrams of thanks from the clergy in the Soviet Union arrived at the ministry for Occupied Eastern Territories addressed to Rosenberg. Gentlemen, if Dankers and Astrowski are not granted as witnesses, then I request permission to go back to Bräutigam.

And then I have one further witness. To show how Rosenberg behaved towards his academic opponents, I should like to call one of these academic opponents, to wit, Dr. Kuenneth, a university professor who wrote an important book attacking the Mythos. He will testify that those who disagreed with Rosenberg’s philosophy were not at all afraid of the Gestapo and that they had no cause to fear the Gestapo.

THE PRESIDENT: Yes. Sir David, did you want to review those last two?

SIR DAVID MAXWELL-FYFE: My Lord, in my submission these last two witnesses are not really relevant to the charges against this defendant which have been developed by the Prosecution. They are general witnesses, and if I may put it—I hope the Tribunal will not think it flippant to put it this way—they are really witnesses who say that the Defendant Rosenberg would not hurt a fly; we have often seen him doing it—not hurting flies. That really puts it quite briefly as to what this class of evidence amounts to, and I respectfully submit, on behalf of my colleagues, that that should not be the subject of oral evidence, and it should be disallowed; or if there is any special point raised, it should be dealt with by an affidavit.

THE PRESIDENT: Does the Indictment allege that he instigated the persecution of churches?

SIR DAVID MAXWELL-FYFE: The Indictment says that he took part in antireligious teaching. I am speaking from memory. That is one of the matters. And I think there was certain correspondence between him and the Defendant Bormann, which was directed towards his antireligious views. I do not remember at the moment that there was any evidence that he had personally participated in physical destruction of churches. That is my recollection.

My Lord, I am reminded that there is a general allegation in Appendix A that he authorized, directed, and participated in the War Crimes and Crimes against Humanity, including a wide variety of crimes against persons and property.

THE PRESIDENT: Very well; those matters will be considered.

DR. SEIDL: The first witness that I ask be summoned is Dr. Hans Bühler, State Secretary with the Chief of the Administration in the Government General. This witness is detained here in Nuremberg, pending trial; and he is the most important witness for the Defendant Dr. Frank. He is called for Dr. Frank’s whole policy in the Government General, since he was head of the government during the entire period from the establishment of the Government General up to the end.

THE PRESIDENT: Sir David, have you got any objection to Dr. Bühler?

SIR DAVID MAXWELL-FYFE: No, I have not, My Lord. The only point that I want to make clear is that the Defendant Frank calls an enormous number of witnesses from his own officials; he calls something like 15. And I am not going to object to Dr. Bühler; I am going to ask the Tribunal to cut down substantially the witnesses who were officials of the Government General. And it might help Dr. Seidl if I told him before the adjournment that my suggestion would be that the Tribunal would consider allowing Dr. Bühler, an affidavit from Dr. Von Burgsdorff, and that they might consider allowing Fräulein Helene Kraffczyk, the defendant’s secretary, and Dr. Bilfinger, and Dr. Stepp, but not the succession of officials from the Government General.

THE PRESIDENT: Sir David, you say your suggestion is to allow Dr. Bühler?

SIR DAVID MAXWELL-FYFE: Dr. Bühler.

THE PRESIDENT: And affidavits from. . .

SIR DAVID MAXWELL-FYFE: Affidavits from Burgsdorff, allow Dr. Lammers—he is in the general list. . .

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: Allow the private secretary, Fräulein Kraffczyk, Number 7, and allow Numbers 9 and 10.

THE PRESIDENT: What are the names?

SIR DAVID MAXWELL-FYFE: Dr. Bilfinger and Dr. Stepp.

THE PRESIDENT: Wait a minute.

SIR DAVID MAXWELL-FYFE: And if these are allowed, I should suggest that Numbers 13 to 20, who are various officials from the office of the Government General, should not be allowed. If I may say so, with the submission of the Prosecution, the height of irrelevancy will be Number 18, Dr. Eisfeldt, who is chief of the Forestry Department.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: I thought it might be convenient for Dr. Seidl to know what the views of the Prosecution were. Of course, if he has any suggestions of any alternatives we should be pleased to consider them.

THE PRESIDENT: We will continue with that after the adjournment, Dr. Seidl.

Before the Tribunal rises, before the adjournment, I want to say that the Tribunal will rise this afternoon at 3:30.

[The Tribunal recessed until 1400 hours.]

Afternoon Session

THE PRESIDENT: Yes, Dr. Seidl.

DR. SEIDL: Mr. President, Your Honors, if I understand correctly, Sir David has no objection to the calling of the witnesses Dr. Hans Bühler, Dr. Bilfinger, and Fräulein Kraffczyk.

THE PRESIDENT: Yes.

DR. SEIDL: The second witness named by me is Dr. Von Burgsdorff, whose last appointment was that of Governor of Kraków. He is at present in the Moosburg Internment Camp, which means that he is close to Nuremberg.

The witness Dr. Von Burgsdorff is the only one of the nine governors whom I have named to the Court as a witness. Considering the importance of the position of the governors in the Government General and in view of the great difficulties which these governors had to overcome, it seems proper to me that the witness Dr. Von Burgsdorff should be heard personally by the Court and not by means of an interrogatory.

Is it necessary for me to read out the evidence material in detail now, or is it enough to refer to the application for evidence?

THE PRESIDENT: We have got it in writing, and we understand that, while Sir David suggests an affidavit, you want to insist upon his coming personally.

DR. SEIDL: Yes, Mr. President, since the Court approved the calling of this witness at an earlier date.

THE PRESIDENT: Yes.

DR. SEIDL: The next witness is Reich Minister and Chief of the Reich Chancellery Dr. Lammers. This witness has already been approved for the Defendant Keitel, so that no further discussion is necessary.

The fourth witness is State Minister Dr. Meissner. With regard to the fact that this witness is called in connection with evidence for which the witness Dr. Lammers was also named, I should like to ask the Tribunal to allow an interrogatory unless this witness is called for another defendant and can appear in person.

SIR DAVID MAXWELL-FYFE: My Lord, I did check that point as far as I could from my records, and I could not find that he was being called as a witness for any other defendant. And, as Dr. Seidl very fairly says in his first sentence, Dr. Meissner is named for the same evidence material as the witness Dr. Lammers. That is my point.

THE PRESIDENT: Yes.

DR. SEIDL: The next witness is Dr. Max Meidinger, former Chief of the Chancellery of the Government General, who, like Dr. Von Burgsdorff, is in Moosburg. My written application shows that this witness held a very important appointment. He received all the correspondence of the administration of the Government General and is acquainted in particular with the substance, with suggestions and complaints addressed by the Defendant Dr. Frank to the central government authorities in Berlin, and in particular with the proposals which the Defendant Dr. Frank repeatedly made to the Führer himself.

The witness was likewise approved previously by the Tribunal, and I think that considering the vast knowledge of this witness—he worked in the Government General for several years—a personal hearing before this Court seems advisable.

THE PRESIDENT: You say he was approved. Was he not approved as one out of a group of which Frank was to choose three? There was a large group of witnesses.

DR. SEIDL: Yes, Mr. President. The witnesses Von Burgsdorff and Dr. Max Meidinger were chosen from this group. Those are the two witnesses who were selected from a group of 13.

THE PRESIDENT: Which was the other one?

DR. SEIDL: The other one was witness Number 2, Dr. Von Burgsdorff. Witness Number 6, whom I have named and whom I should like to have called in person, is the witness Hans Gassner. His last appointment was that of press chief of the Government General, and he is also in the Moosburg Internment Camp. He was named, along with some others, to give evidence that the Defendant Frank did not hear of the existence of the camp of Maidanek and the conditions prevailing there until 1944, and then only because the witness informed him of reports published by the foreign press.

The witness was also present—this is not stated in my application—when Dr. Frank told a press reporter that the forests of Poland would not be large enough to publish the death warrants. The witness will also be able to describe the interview in detail, to say what Frank meant by this remark, how he intended it to be understood, and what his reasons were for making the remark.

I may add that the Court likewise approved this witness at an earlier date. I may say also, generally speaking, that, according to the wishes of the Tribunal, my applications for evidence will only indicate the general lines on which the witnesses are to be questioned and that I have consciously refrained from formulating the separate questions which I intend to put to the witness.

THE PRESIDENT: Sir David, will you express your view about Number 6?

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases, it seemed to the Prosecution that the second matter which Herr Gassner was desired to speak about, that the Defendant Frank learned from him only in 1944 about Maidanek, is really a matter about which no witness can be as satisfactory as the defendant himself. All the witness can say is, “I told the Defendant Frank about Maidanek, and it appeared to me that he did not know anything about it.” Well, that is not, in the view of the Prosecution, satisfactory evidence.

The Court will be able to judge from the Defendant Frank himself when he has been cross-examined on that point. If it is desired that that interview should be before the Court, the Prosecution submit that it could be adequately dealt with by an affidavit or an interrogatory. Apart from that, the grounds are entirely general and again could be covered by a written statement.

THE PRESIDENT: Well, then, the next one Sir David has already expressed his views on.

DR. SEIDL: Yes, Mr. President.

The next witness is Helene Kraffczyk, the defendant’s last secretary. If I understand correctly, there are no objections on the part of the Prosecution.

Witness Number 8 is General Von Epp, the last Reich Governor of Bavaria. He is at present in the internment camp at Oberursel. The statements to be made by this witness will be mainly concerned with the attitude of the Defendant Frank towards the concentration camps in 1933. As the witness is at present in the neighborhood of Frankfurt, I should be satisfied in this case with an interrogatory.

THE PRESIDENT: Yes, Sir David?

SIR DAVID MAXWELL-FYFE: Your Lordship will see that General Ritter von Epp seems to cover the same incident as Dr. Stepp. I said that I would not object to Dr. Stepp, but if Dr. Seidl wishes an interrogatory on some specific points from General Ritter von Epp, I should not make any objections.

DR. SEIDL: The next witness, Number 9, is Dr. Rudolf Bilfinger, late Oberregierungsrat and SS Obersturmbannführer in the Reich Security Main Office. This witness is already here in Nuremberg. The Prosecution apparently has no objection to the hearing of this witness.

The next witness, Number 10. . .

SIR DAVID MAXWELL-FYFE: [Interposing] My Lord, I would just like to say one word about Dr. Bilfinger. I want the Tribunal to understand what the Prosecution have in mind. The general plan for these witnesses is to show from both ends the relationship between the Defendant Frank and the central agencies. The Prosecution thought that it was right that the defendant should be allowed to call two or three members of his own staff and a member from headquarters, who was in the position of Dr. Bilfinger, to give the other side of the picture. I just wanted the Tribunal to understand the plan on which we were working.

THE PRESIDENT: Yes.

DR. SEIDL: Number 10 is Dr. Walter Stepp, former chief judge of the highest regional court of appeal in Munich. He is at present in the internment camp at Ludwigsburg. If I understand Sir David correctly, he has no objection to the calling of this witness.

I should be glad if in this case I could submit to the Court an affidavit which is in my possession, and which will prove the veracity of these points. The reading of this affidavit would only take a few minutes, if the Court would permit me to call another witness instead, or if it would withdraw its objection to my calling another witness. . .

SIR DAVID MAXWELL-FYFE; I have to ask for some notice as to who the other witness is. I was stating that I had no objection to Dr. Stepp, because he speaks as to the Defendant Frank’s position in relation to other people in Bavaria in earlier years. Of course I cannot speak on behalf of my colleagues and accept just another witness blindly until I know who the witness is and what he is going to say.

DR. SEIDL: The witness is Dr. Max Meidinger.

SIR DAVID MAXWELL-FYFE: I want to be as reasonable as possible. The reason that I had objected to Dr. Meidinger was because, as the Tribunal will see under Number 7, it is stated that Fräulein Kraffczyk is called for positive facts for which the witness Dr. Meidinger has already been named. It seemed to me that the private secretary is probably the most useful witness, but I am afraid that I cannot help Dr. Seidl any further. I have put my view, but I shall not say anything further against him. I am afraid that is as far as I can go on that point.

DR. SEIDL: The next witness, Number 11, is Von dem Bach-Zelewski, SS Obergruppenführer and general of the Waffen-SS, who has already been heard by this Tribunal as a witness for the Prosecution. The Court has already at an earlier date granted permission for an interrogatory. In the meantime I have spoken to the witness. He has made an affidavit, which I shall submit instead of calling him in person.

SIR DAVID MAXWELL-FYFE: I should have thought that it would be most convenient if the witness Von dem Bach-Zelewski came back, and then Dr. Seidl could put any affidavit to him if he wanted. We might want to re-examine on the point. I do not know what is in the affidavit.

THE PRESIDENT: Was he cross-examined by Dr. Seidl?

DR. SEIDL: When the witness was heard here I had no opportunity to cross-examine him, and for that reason. . .

THE PRESIDENT: Why did you have no opportunity to cross-examine him?

DR. SEIDL: Because I did not know beforehand that he would be called by the Prosecution as a witness and had no opportunity to speak to the Defendant Frank about the questions which might have been put to this witness.

THE PRESIDENT: Well, we will consider whether the witness ought to be recalled for cross-examination or whether you will be allowed to call him yourself. The affidavit which you say he has made, has that been submitted to the Prosecution?

SIR DAVID MAXWELL-FYFE: I have not seen it, My Lord.

DR. SEIDL: No, Mr. President, my opinion on this point is the following. . .

THE PRESIDENT: When you saw Von dem Bach-Zelewski did you see him with a representative of the Prosecution?

DR. SEIDL: No, Mr. President, the General Secretary himself granted me permission to speak to the witness, and that was after the Court had already approved the use of an interrogatory.

THE PRESIDENT: But when the witness was called by the Prosecution and you had the opportunity of cross-examination, if you were not ready to cross-examine, you ought to have asked to cross-examine him at a later date. I mean if you were not able to cross-examine at that time, because you had not had any communication with the Defendant Frank on the subject, you ought to have asked to cross-examine at a later date.

DR. SEIDL: I could have made this application to the Court if I had thought that there was any reason for questioning the witness. I did not find out until later that the witness possessed any vital information relevant to Frank’s case.

THE PRESIDENT: Well, the Tribunal will consider the matter.

DR. SEIDL: May I perhaps add something to this point? The difficulty of a cross-examination is just this, that we do not learn of the intended calling of a witness by the Prosecution until the witness is led into the courtroom, and we do not know the subject of the evidence until the Prosecution start to examine the witness. It would have been much easier for us to cross-examine, if we had received information about the witnesses and the subjects of evidence as far in advance as the Prosecution—that is, as the Prosecution is informed about the witnesses for the Defense.

The next witness is witness Number 12, Von Palezieux. His last appointment was that of art expert in the Government General. In regard to this witness I should like to suggest that an interrogatory might be granted in this case too.

SIR DAVID MAXWELL-FYFE: If Dr. Seidl asks for an interrogatory, I have no objection. I just want to be clear that that is a written interrogatory. I do not want Dr. Seidl to be under a misapprehension.

THE PRESIDENT: You meant a written interrogatory, did you not, Dr. Seidl?

DR. SEIDL: Yes; I assume that in cases where a written interrogatory is admitted the submission of an affidavit is also admitted by the Court. The purpose is obviously to avoid bringing witnesses here and thus to save time.

The next witness is Number 13, Dr. Böpple. His last appointment was that of State Secretary in the administration of the Government General. He is now in the internment camp at Ludwigsburg near Stuttgart. This witness seems to me to be one of the most important because in the administration of the Government General he answered a number of questions which play an important part in the case against the Defendant Frank. I may refer to the details in my list of evidence and should like to add, above all, that this witness can give detailed information as to whether, during the 5 years of the Government General’s existence, the industrial equipment of the area was exploited or whether in 1943 and 1944, as a result of transfers from the Reich, the Government General did not possess a considerably greater industrial potential than before.

SIR DAVID MAXWELL-FYFE: The Prosecution submit that, as is stated in the first sentence, Dr. Böpple is called for a number of facts of evidence for which Dr. Bühler has been already generally mentioned. Part of the evidence stated is the relationship with the Government General agencies, and the remainder, as to the happenings in the Government General, can be dealt with by the witness already agreed to by the Prosecution.

DR. SEIDL: It is correct that some of the things which Dr. Böpple is to confirm are also to be testified to by Bühler. But in my opinion it cannot be denied that the subject of evidence for which I have named this witness is so important that one witness might not be sufficient to convince the Court.

I should like furthermore to point out the following: The witness Bühler was chief of the administration of the Government General. He has already been interrogated many times by the Polish Delegation as well. There is a danger that proceedings may be instituted against this witness as well, on account of the importance of the position he held. It is self-evident that under these circumstances every conscientious Defense Counsel should take into account the fact that the witness may try to shield himself when he answers certain questions; and considering the importance of the evidence, it seems proper that, in these difficult circumstances, the Defendant Frank be granted additional witnesses.

THE PRESIDENT: Sir David, in your suggestion, did you include any of the other witnesses who were cumulative to Bühler?

SIR DAVID MAXWELL-FYFE: I suggested an affidavit from Böpple and only Fräulein Kraffczyk on the general work of the Government General. The others, I think, are on the different points of the relationship with the central agencies.

THE PRESIDENT: Yes, I see.

DR. SEIDL: The next witness is Number 14, President Struve, whose last appointment was that of chief of the main labor department of the Government General. In other words, he was Minister for Labor in the Government General. Since both the United States Prosecution and the Russian Prosecution have made grave charges against the Defendant Dr. Frank on this very point of the alleged compulsory transfer of workers, it seems to me proper that one witness at least—the competent official—should be examined on the facts presented by the Prosecution so that he can say what orders he received on the subject from the Government General. Information as to the location of this witness has also been obtained. He is in an internment camp near Paderborn.

SIR DAVID MAXWELL-FYFE: I should suggest, My Lord, with great deference, that if Dr. Seidl would run through the other witnesses and show those to which he attaches special importance, it would be convenient for the Tribunal; and if Dr. Seidl would be good enough to say quite bluntly whether he attaches importance to any of the others or if he does not, then it might be possible for the Prosecution to reconsider the elimination of all these witnesses; but the position at the moment is that there are requests for all sections, all departments of the Government General, and the Prosecution failed to see how these are necessary. If Dr. Seidl would indicate any special purpose that he attaches to any of them, then one might come back and consider President Struve again; but the position at the moment is that the Prosecution do not see how it really helps the case of the Defendant Frank that each one of the departmental chiefs should be called.

DR. SEIDL: It is not the case that all the officers or rather holders of office, were named as witnesses. A good many others could have been named. For instance, I have already said that out of nine governors, each of whom was in charge of 3 to 3½ million people, I have named only one: the witness Von Burgsdorff.

I have also foregone witnesses whom I had previously named—for instance, the various military commanders. If, however, the Prosecution wishes to know which witnesses I consider of special importance, I shall give the numbers of these witnesses.

They are, besides State Secretary Dr. Bühler, witness Number 2, Von Burgsdorff; Lammers has already been approved; further, the witness Dr. Max Meidinger; the witness Gassner, Number 6; the witness Number 7, Helene Kraffczyk; the witness Number 9, Bilfinger—he was not a member of the administration of the Government General; members of the Government General; Numbers 13, 14, 15, and 19. That does not mean, however, that I am willing to forego the witnesses which I have not mentioned. Witness Number 15, President Dr. Naumann, is an important witness because he was the chief of the main department for food and agriculture and can give us detailed information about the Defendant Dr. Frank’s policy with regard to the feeding of the Polish and Ukrainian peoples and how he tried in particular, through the highest authorities of the Reich, to have the demands of the Reich reduced. The witness’ address was not known until now, but I understand that the chief Polish public prosecutor, Dr. Sawicki, is supposed to know where he is at present. The next witness is Number 16, President Ohlenbusch, who is called mainly to testify to the cultural policy pursued by the Defendant Frank in the Government General. He is not, however, one of our most important witnesses; and I imagine that in his case an interrogatory would suffice.

The same applies to witness Number 17. Witness Number 18 is Dr. Eisfeldt whose last appointment was head of the main department of forestry, and who will testify to the forestry policy of the defendant and especially—this seems to me an essential point—to the fact that there was so much trouble with the partisans in the Government General that it was in the interest of the Polish and Ukrainian people themselves to take strong measures against them. Witness Number 19 is President Lesacker, lately head of the main department of internal administration, whose last known place of residence was Bad Tölz. His present address may now have become known. Witness Number 20 is Professor Dr. Teitge, who, as my application shows, is to testify to the efforts made by the Defendant Dr. Frank in the field of public health.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, I have now had the advantage of hearing everything that Dr. Seidl has to say, and it seems to me that, so far as the witnesses from the Government General itself are concerned, the position is that Dr. Böpple, Number 13, does not add greatly to the general position which would be explained by Dr. Bühler and Dr. Von Burgsdorff and Fräulein Kraffczyk; that the witness Number 5, Dr. Meidinger, seems to deal with very much the same problems as President Struve, witness Number 14, and the witness Naumann, Number 15, and that, on reconsideration, I think the Prosecution would be prepared to agree that one of these witnesses, either Dr. Meidinger, or Dr. Struve, or Dr. Naumann, might well be called.

With regard to all the others, Dr. Ohlenbusch, Dr. Senkowsky, and Dr. Eisfeldt seem to speak about points that are really removed from the issues in this case, and Dr. Lesacker speaks on the general attitude of the defendant towards Poles and Ukrainians, which is covered by Dr. Bühler and Von Burgsdorff, and Meidinger, if he is granted; and the last witness, Teitge, seems again to speak on a really departmental point which is not a serious issue in the case. And, therefore, in trying to apply our own principle of recommending any witness where there is a real relevancy, the Prosecution would be prepared to go as far as I said in their recommendation, that, in addition to the witnesses that I have mentioned, they would suggest that either Dr. Meidinger or one of the witnesses Struve or Naumann should be called.

COL. POKROVSKY: I ask for permission to add a few words to that which has been said by my esteemed colleague, Sir David.

THE PRESIDENT: Yes.

COL. POKROVSKY: After listening very carefully to Dr. Seidl, I have come to the conclusion that we must ask you to take notice of our negative attitude towards a further summoning of the witness Von dem Bach-Zelewski. The Soviet Delegation fears that should the Tribunal deem it possible to grant Dr. Seidl’s application—which, to my mind, appears completely unfounded—then a very dangerous precedent would be created for the factual annulment of the basic decision already accepted by the Tribunal in this respect.

As far as I understand, the Tribunal are of opinion that every witness can and must be called once only for purpose of cross-interrogation. In reply to your question Dr. Seidl confirms that he was present here during the cross-examination by my colleague, Colonel Taylor, and myself. He saw and heard how the cross-examination was progressing. His reference to the fact that he did not have time enough to prepare for participation in this cross-examination appears to me unworthy of the slightest attention. He was in the same position as the rest of us. The Tribunal will remember that a number of the Defense Counsel participated in the cross-examination of the witness Von dem Bach-Zelewski. I see no reason why a different attitude should be adopted for Dr. Seidl’s sake and I do not see why, to gratify a wish of Dr. Seidl, which, to me, is completely incomprehensible, the basic decision of the Tribunal should be changed concerning the repeated calling of witnesses for cross-examination.

This is what I wanted to add to the words of my respected colleague, Sir David Maxwell-Fyfe.

DR. SEIDL: Mr. President, I do not believe that the desire to hear an important witness is incomprehensible in itself, if the cross-examination is rendered difficult for reasons over which we have no control. In the first place, I have only asked the Court for permission to submit an affidavit from this witness to the Tribunal. If now the affidavit is such. . .

THE PRESIDENT: Are you dealing with Number 20?

DR. SEIDL: No, Sir. I am speaking about the witness Von dem Bach-Zelewski.

THE PRESIDENT: The Tribunal will consider what you said about it.

DR. SEIDL: May I now begin with the list of documents?

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents, Dr. Seidl asks for the correspondence between the Governor General and the Reich Chancellery. I have just verified that we do not have the other part of the correspondence. Of course, if any of it comes into our possession, we will be only too pleased to give it to Dr. Seidl. We do not have it, and we also do not have the personal files of the Defendant Frank in the Reich Security Main Office. The same applies to that—that if we do get possession we will let Dr. Seidl know at once.

THE PRESIDENT: Have the Prosecution any objection to the other documents which are asked for?

SIR DAVID MAXWELL-FYFE: I think that is all. The others are the diary. Dr. Seidl can comment on and call evidence as he desires as to the diary.

THE PRESIDENT: Yes, very well. Now counsel for the Defendant Frick.

DR. PANNENBECKER: Your Honors, the first witness I have named is Dr. Lammers, who has, however, already been approved for the Defendant Keitel. I believe, therefore, that I need make no statement on this point.

As my second witness I have named the former State Secretary of the Ministry of the Interior, Dr. Stuckart. He is one of the State Secretaries of the Ministry of the Interior, and he is in custody in Nuremberg. He was chief of the central office.

THE PRESIDENT: Is Dr. Stuckart being asked for by the Defendant Keitel?

SIR DAVID MAXWELL-FYFE: I think the explanation is that it was certainly thought that on the 9th of February this witness was to be so called by the Defendant Keitel, and on that basis he was approved in connection with the Defendant Frick. That is not directly my request to write it on the Defendant Keitel’s final list.

THE PRESIDENT: You have no objection to him?

SIR DAVID MAXWELL-FYFE: I have no objection to him, Your Lordship.

THE PRESIDENT: Very well.

DR. PANNENBECKER: Mr. President, as witness Number 3 I have named General Daluege, who was formerly general of the Regular Police, and who is now in custody here in Nuremberg. He is informed especially about the attitude of the Defendant Frick to the anti-Jewish demonstration on 9 November 1938, and he also knows the relations between Frick and Himmler.

SIR DAVID MAXWELL-FYFE: I have no objection.

DR. PANNENBECKER: As witness Number 4 I have named Dr. Diels, who is now in an internment camp in the Hanover district. The witness was chief of the Gestapo in Prussia in 1933-1934. He is acquainted with the measures which the Defendant Frick, as Reich Minister of the Interior, decreed for the supervision of the provinces by the Reich, as well as about the concentration camps, and also, in particular, about measures taken in individual cases and about conditions in the camps.

SIR DAVID MAXWELL-FYFE: I submit that this witness’ evidence should be taken in writing. With regard to the earlier part, the Tribunal will have the advantage of the Defendant Göring who was concerned especially with the practices of the police in Prussia in 1933 and 1934, and with regard to the other points, as to the measures of the Defendant Frick, these are either laws or orders or administrative measures, which could be included, in the submission of the Prosecution, as being dealt with by written testimony supplemented by testimony of the Defendant Frick himself.

DR. PANNENBECKER: I should like to say something to that. I believe that it would be more practical to hear the witness here before the Court. We can then have a talk with him beforehand and find out the points on which he has detailed information, whereas in an interrogatory these things could not be discussed in detail.

THE PRESIDENT: We will consider that.

DR. PANNENBECKER: As witness Number 5 I have named the former police commissioner, Gillhuber. Gillhuber accompanied the Defendant Frick on all his official trips as his police guard. He therefore knows what trips Frick made and can therefore testify that Frick never went to the Dachau Concentration Camp, which contradicts the testimony given here by the witness Dr. Blaha.

SIR DAVID MAXWELL-FYFE: I have no objection, of course, to the Defendant Frick’s dealing with that point. The only difficulty as to a witness of this sort is, I will say, the unfamiliarity with all of his travels, because if he is or was a bodyguard, he is almost certain to have periods of leave, and periods of interruption would occur. I should have thought that this could have been dealt with by affidavits, or an interrogatory, if necessary. When they are seen the matter could be reconsidered. But I would suggest at first stage the interrogatories, indicating in the witness’ own account how often he was with the Defendant Frick and what interruptions would be most frequent in that period; therefore, it is for the Court to decide.

DR. PANNENBECKER: I agree with that, Mr. President.

SIR DAVID MAXWELL-FYFE: Now dealing with the next point, I have a suggestion to make in regard to the witness—the next witness, Denson. The point, as I understand it there, is that the Witness Blaha said before the Tribunal that Frick had visited Dachau, that it was, however, his evidence at the Dachau trial that Frick did not come to Dachau. I should say the most satisfactory way in dealing with that is to get the shorthand notes of the Witness Blaha’s evidence at the Dachau trial and put in a certified copy.

DR. PANNENBECKER: Agreed. I believe also that these notes. . .

SIR DAVID MAXWELL-FYFE: Actually we have a certified copy of the shorthand notes of Blaha’s evidence here, and I also say in fairness to the witness that it does show he did say that at Dachau Frick visited the concentration camp, and I will show it to Dr. Pannenbecker whenever he likes.

DR. PANNENBECKER: As witness Number 7 I have named Dr. Messersmith. An affidavit from him has been read here by the Prosecution. An interrogatory has already been approved for this witness. We have not as yet received an answer. I should like for the time being to withhold the question as to whether a hearing of this witness in person seems necessary.

As an additional application I have also named the witness Dr. Gisevius.

SIR DAVID MAXWELL-FYFE: I should submit that Dr. Gisevius’ evidence might also be reasonably dealt with directly in an affidavit in answer to interrogatories. He was consultant of the Reich Minister of the Interior under the Defendant Frick and supposedly went to Switzerland after 20 July 1944; he has exact knowledge of the responsibility and actual authority of the Defendant Frick to issue orders in police matters. I should think that such matters might be conveniently dealt with in an affidavit.

THE PRESIDENT: What do you say, Dr. Pannenbecker?

DR. PANNENBECKER: I should like to say that the Witness Dr. Gisevius is also required as a witness by the Defendant Schacht, as far as I know, about the events of 20 July 1944. I believe that this witness will have to appear in person for the Defendant Schacht. It would also be better if the witness could be heard here in person for the Defendant Frick. In case of necessity an affidavit would suffice.

THE PRESIDENT: There is one other point about it. You asked earlier for the return of Colonel Ratke. I think that you were told you could have him or Stuckart. Will you now leave him out of your application because you have Stuckart?

DR. PANNENBECKER: No, it was like this. I had named three witnesses for Dr. Blaha—Gillhuber, Ratke, and a third. We dropped Ratke when I got Gillhuber.

May I speak about the document book here?

THE PRESIDENT: Yes.

DR. PANNENBECKER: In order to give a general description of the Defendant Frick’s character, I asked permission to refer to two books. One of them is a small book, We Build the Third Reich, which contains speeches made by Frick. I intend merely to quote short excerpts from these speeches in the course of my presentation of evidence. As regards the other book, Inside Europe, by John Gunther, I want to read here, too, only a short excerpt, one sentence about Frick.

Then I have offered further evidence material on the question of whether Frick intervened by means of restrictive decrees against arbitrary measures in imposing protective custody and have based my observations mainly on documents originally submitted by the Prosecution but not read in court. These documents I have listed simply under Number 2a-c.

I have further asked for permission to refer to the files of the police department of the Ministry of the Interior, where restrictive decrees issued by the Defendant Frick in regard to protective custody are also to be found.

With reference to his intervention in individual cases, I request permission to read a letter written to me by the former Reichstag Deputy Wulle. I have listed it under Number 3. The Prosecution has submitted an affidavit by Seger, in which the latter declares that Frick, as chairman of the Committee for Foreign Affairs of the Reichstag, had made statements on putting political opponents into concentration camps as early as December 1932. In Number 4 I have asked for the stenographic records of the Foreign Affairs Committee to prove that such a statement was never recorded and never made.

Number 5 concerns the records of the Dachau trial in regard to the Blaha incident already discussed.

Number 6 concerns an affidavit by the Witness Dr. Stuckart, which he made for the American Prosecution on 21 September 1945. I could just as well ask this witness about these questions when he is heard in person; but it would shorten the hearing if I could read this affidavit, which was made for the Prosecution.

With regard to Frick’s position as Reich Protector of Bohemia and Moravia, I should like to submit the Prosecution’s Document Number 1368-PS, which contains details of the limitations imposed on the Defendant Frick’s powers as Reich Protector at the time of his appointment.

I have also made a supplementary application for Gisevius’ book, To the Bitter End. I learned of this book through an extract published in the Süddeutsche Zeitung on 26 February 1946 which gave interesting details of the Röhm Putsch of 30 June 1934. This extract states that for the events of 30 June 1934, police power was assumed by Hitler and transferred to Göring and Himmler. The book will give further details in precisely this field, since Gisevius was at that time expert for police matters in the Reich Ministry of the Interior. I request the Tribunal, therefore, to refer to this book, which is not yet in my hands, or to assist me to procure a copy.

SIR DAVID MAXWELL-FYFE: I might say I do not think that there is much disagreement between Dr. Pannenbecker and the Prosecution. I might run through the documents asked for. In the book, We Build the Third Reich, if Dr. Pannenbecker will indicate the excerpts he is going to use, the Prosecution will have no objection to his quoting from them, and the same with regard to the quotations from Mr. Gunther’s book, Inside Europe. To Paragraph 2 of the Document 779-PS and the excerpt from a newspaper, the Document 775-PS—to these there are no objections. The files of the police division are not in the hands of the Prosecution. If we do get any of them, then we shall let Dr. Pannenbecker know. As far as the letter from the former representative Wulle is concerned, there is no objection to that. I have not seen any letter yet, but there is no objection to it in principle.

With regard to Number 4, I think there is some misunderstanding there. That is Document L-83. The affidavit of Seger is before the Tribunal as Exhibit Number USA-234, and the statement referred to by Seger was that the Defendant Frick said to him, “Don’t worry, when we are in power, we shall put all of you guys into concentration camps.” This was alleged in the affidavit as said by Frick to Seger during the course of a conversation. It is not alleged to have been said in the Foreign Affairs Committee.

Then Number 5—I say I have the shorthand notes, and it will be shown to Dr. Pannenbecker. As to Number 6, I understand that Dr. Stuckart is going to be called. Of course, the affidavit can be put to him and he can verify its truth. The Document 1336-PS will be put at the disposal of the Defense and they can make such use of it as they can. That covers the documents. As to Dr. Gisevius’ book, I understand that Dr. Pannenbecker has not a copy of that. Perhaps the Tribunal will see that a copy can be obtained for him. I do not know whether we have a copy. We will see what we can do and see that a copy is available.

DR. PANNENBECKER: As to Number 4, Dr. Seger, I still have a brief comment to make on Document 83. Perhaps an interrogatory could show whether or not Frick made the statement in question in his capacity as chairman of the Foreign Affairs Committee—in other words whether or not that statement is in the stenographic minutes.

SIR DAVID MAXWELL-FYFE: I understood that it was not in the minutes.

It would not be in the minutes because Dr. Seger alleges that it was made during the course of a conversation, and not in that committee.

DR. PANNENBECKER: Thank you.

THE PRESIDENT: The Tribunal will continue tomorrow morning at 10 o’clock, if possible, with the further applications for witnesses and documents, which the Tribunal understand have been lodged on Friday evening.

[The Tribunal adjourned until 5 March 1946 at 1000 hours.]

SEVENTY-FOURTH DAY Tuesday, 5 March 1946

Morning Session

THE PRESIDENT: I have an announcement to make.

The attention of the Tribunal has been drawn by Dr. Hanns Marx, one of the German counsel appearing in this case for the Defense, to an article which was published in the newspaper Berliner Zeitung for February 2, under the heading, “A Defense Counsel.” The article, which I do not propose to read, criticizes Dr. Marx in the severest terms for an error in his cross-examination of a witness when he deputized for Dr. Babel on behalf of the SS. The article suggested that in asking the question he did he was behaving most improperly, that he was expressing private and personal views under the guise of acting as counsel, and that his proper course was to remain silent in view of the character of the evidence.

The matter assumes a graver aspect still because the article goes on to threaten Dr. Marx with complete ostracism in the future and does so in language both violent and intimidating.

The Tribunal desires to say in the plainest language that such conduct cannot be tolerated. The right of any accused person to be represented by counsel is one of the most important elements in the administration of justice. Counsel is an officer of the Court, and he must be permitted freely to make his defense without fear from threats or intimidations. In conformity with the express provisions of the Charter, the Tribunal was at great pains to see that all the individual defendants and the named organizations should have the advantage of being represented by counsel; and the Defense Counsel have already shown the great service they are rendering in this Trial, and their conduct in this regard should certainly not leave them open to reproach of any kind from any quarter.

The Tribunal itself is the sole judge of what is proper conduct in Court and will be zealous to insure that the highest standard of professional conduct is maintained. Counsel, in discharge of their duties under the Charter, may count upon the fullest protection which it is in the power of the Tribunal to afford. In the present instance the Tribunal does not think that Dr. Marx in any way exceeded his professional duty.

The Tribunal regards the matter as one of such importance in its bearing on the due administration of justice that they have asked the Control Council for Germany to investigate the facts and to report to the Tribunal.

That is all.

Sir David, the first application is for the Defendant Streicher. I call upon counsel for the Defendant Streicher.

DR. HANNS MARX (Counsel for Defendant Streicher): Mr. President, the Defendant Streicher is indicted under two counts: Firstly, that he was active in the planning and in the conspiracy for preparation of aggressive war; and secondly, Crimes against Humanity.

As far as the first point is concerned, the Defense does not think it necessary to offer any evidence because the Defendant Streicher, during the whole of this proceeding, was never mentioned in a single document; neither can it be proved that he took part in any of the intimate conferences with Hitler. In this respect I did not see fit to offer any proof. As to the second point, first of all I should like to call the wife of the Defendant Streicher, Frau Adele Streicher nee Tappe as witness.

SIR DAVID MAXWELL-FYFE: I wonder if it would be convenient for me to indicate the views of the Prosecution on these witnesses; there are only six of them. Then perhaps Dr. Marx could make his comments on my suggestions.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: The Tribunal will see that there are six witnesses, and if it would take them in my order, I would indicate the point of view of the Prosecution.

Number 3, Ernst Hiemer, was the editor in chief of Der Stürmer, and apparently the defendant’s principal lieutenant.

Number 4, Wurzbacher, was an SA brigade leader in Nuremberg, and is alleged to be able to give evidence as to the speeches of the defendant.

Number 2, Herrwerth, was the defendant’s chauffeur, and he is to speak on one point, namely, the defendant’s annoyance at violence being used on the 10th of November 1938.

And Number 6, Dr. Strobel, who is a lawyer, is to speak on the same point, the disapproval expressed by the defendant in December 1938 of the measures taken in November.

Then there are two members of the defendant’s family: Frau Streicher, who was his secretary from 1940 to 1945; and his son, Lothar Streicher.

The Prosecution would have no objection to Herr Hiemer, as the defendant’s principal lieutenant, speaking, as suggested by Dr. Marx, on what Dr. Marx calls the Defendant Streicher’s basic attitude to the Jewish question. There are a number of matters on which he is said to be able to speak, to which the Prosecution would object as irrelevant. However, the time for so doing is later.

Then, with regard to Herr Wurzbacher, he is said to have always been present at meetings where Streicher spoke, from the early days. To that also the Prosecution would not make objection, but they draw attention to the fact that in the earlier applications Herr Wurzbacher was said to be able to speak as to the boycott in 1933 and the events of November 1938. Therefore the Prosecution respectfully remind the Tribunal that he can speak on the events in 1938, and, in the view of the Prosecution, it is not necessary to have oral testimony to repeat that point. They therefore suggest that with regard to Herr Herrwerth, the defendant’s chauffeur, who really speaks on one main point—that the defendant showed anger with regard to the events of 1938—an affidavit would be sufficient. They suggest the same course with regard to Dr. Strobel, the attorney who is mentioned.

With regard to Frau Streicher, Number 1, the Tribunal will see that it is said that Frau Streicher was the defendant’s secretary during the period from May 1940 to May 1945. The gist of the case against this defendant refers, of course, to a much earlier period, both before and immediately after the rise to power.

The Prosecution suggest that the evidence which is desired from Frau Streicher is really a description of the life of the defendant during the war years, and they suggest that that, again, be covered by an affidavit.

That leaves Lieutenant Lothar Streicher, the eldest son of the defendant. If I may remind the Tribunal of how the matters mentioned in regard to him come into the case: In a report of the Göring commission on the question of corruption in regard to Aryanization, part of the report stated that this defendant paid a visit to three boys in prison, and that certain disgusting and cruel actions took place. The Prosecution, of course, submit that that is not really a matter relevant to the charges against the defendant, but they realize that it is a highly prejudicial matter; it has been read and a bad effect has resulted from that evidence. Therefore they feel it must be a matter for the Tribunal; and the Prosecution, having put in the report including that, ought not to take objection, except to point out that it is not strictly relevant. However, if the Tribunal feel that this defendant ought to have the advantage of his son’s counteracting that account of very unpleasant matters, the Prosecution would not take any objection, although they are bound to point out that it is not strictly relevant.

THE PRESIDENT: In the view of the Prosecution, would an affidavit be suitable in that case?

SIR DAVID MAXWELL-FYFE: Certainly, that is the line the Prosecution would suggest.

Therefore, if I may summarize, what I am suggesting is that the Prosecution would make no objection to Herr Hiemer and Herr Wurzbacher giving oral evidence, and to affidavits from the other witnesses.

DR. MARX: I beg to differ in a few respects with Sir David Maxwell-Fyfe. The Prosecution hold that the testimony to be given by Frau Adele Streicher would not be specially relevant. Opposing this I should like to state that this witness was for 5 years, that is from 1940 to 1945, close to the defendant, handled his entire correspondence, and knows what contacts Streicher had during the whole war.

The Defense is particularly anxious to prove that Streicher had no connection with any of the leading men of the State or Party while he lived in isolation in Pleikershof. There was no exchange of letters or opinions with Hitler, Himmler, Kaltenbrunner, or Heydrich, or any other leading personalities, whatever their names might be. Streicher was completely isolated and played no political role whatsoever; neither had he any authority. In view of this, I, as his counsel, cannot waive the evidence of this witness, as otherwise the vital interests of the Defendant Streicher would be prejudiced. I therefore suggest that my application to call Frau Streicher as witness before the Tribunal be granted, so that the pertinent questions may be put to her.

The same applies to the witness Herrwerth. It cannot be said that this witness can give information only on irrelevant matters or on an insignificant incident. On the contrary the incident in question is of decisive importance. This man Herrwerth was present on the night of 9 November 1938, when SA Group Leader Von Obernitz reported to the then Gauleiter Streicher that demonstrations against the Jewish population were being planned. He therefore knows from personal experience what passed between these two men, and that Streicher was opposed to this demonstration, because he considered such a demonstration to be entirely wrong.

Thus, in opposition to the Führer’s will and order, Streicher kept himself aloof from this demonstration against the Jewish population. There can be no doubt that this incident is of particular importance. It is clear that the behavior of Streicher, who at the time was already in bed and received Obernitz in his bedroom, corroborated the stand taken by his defense, I therefore submit that Fritz Herrwerth be called as witness before the Tribunal, so that he can be examined by me and, if necessary, also by the Prosecution.

As to the witness Hiemer, the Prosecution and I seem to be in agreement that he as well as Wurzbacher appear before the Tribunal. I may mention that Wurzbacher is now in the Altenstaedt Camp near Schongau, Camp Number 10.

As to the witness Lothar Streicher, the Defendant Streicher attaches particular importance to having it confirmed by this witness that what the Göring report mentions about the Defendant Streicher’s indecent words or acts, when visiting the prison, is untrue.

If the Prosecution are prepared to state that they will drop this point and no longer use this report, then I would agree to refrain from calling this witness. Otherwise, I consider it my duty to insist on having this witness called before the Tribunal to vindicate my client’s honor. An affidavit could not possibly meet this purpose, and I therefore ask that the application of the Defense be granted.

SIR DAVID MAXWELL-FYFE: On that last point, My Lord, I have indicated from the Prosecution that that incident is not relevant to the charges against the Defendant Streicher. The Prosecution, of course, produced the report and I thought I had made it clear to the Tribunal that it is one of these collateral matters that do come in, and the Prosecution for that reason would not oppose an affidavit from Lothar Streicher. But the main case of the Prosecution against this defendant is on the stirring up of and consistent incitement to persecution of the Jews. I do not think I can put it further than that. But I had hoped I had made clear that the incident was not one that was relevant upon any other issue. The report under discussion was on the Aryanization of Jewish properties, and that was a passage in the report. The report itself is relevant to persecution.

THE PRESIDENT: The Tribunal will consider that matter.

DR. MARX: Mr. President, may I make a few additional remarks?

This matter which is to be proved by Lothar Streicher forms a part of the Göring report and cannot therefore be dealt with separated from its context. The defendant contends that this Göring report originates from a man who wanted to harm him, who, after having received many favors from him, became his enemy and used this Göring commission, which was originally meant for quite other purposes, to deal the defendant, whom he hated, a sudden blow.

It is a rather serious matter to say of a man that he indulged in sadism in the presence of other persons in a disgusting manner. That is why the defendant is so anxious to have the falsity of this allegation exposed here publicly. I therefore request once more that Lothar Streicher be brought before this Tribunal.

As to the last witness, Attorney Strobel, I would be very pleased to comply with Sir David Maxwell-Fyfe’s wishes, but also in this case I am afraid I cannot do so.

Attorney Strobel’s testimony is offered as proof for the following: Sometime, approximately three weeks after the events on the night of 9 November 1938, Streicher addressed a meeting of the Association of Lawyers at Nuremberg. At that public meeting of lawyers, Streicher defined his attitude to the events of 9 November 1938 and made it clear that he had been against the demonstration and the firing of synagogues. Attorney Strobel, as he said, was very surprised at the time that Streicher so openly took a stand against Hitler’s order and made no secret of what he had said to Obernitz, that he would not take part in the demonstration and that he considered the whole thing to be a mistake.

Strobel’s testimony may carry more weight than that of chauffeur Herrwerth, since in the case of the latter the Prosecution can hold against the Defense the fact that Herrwerth was an employee of the defendant and may therefore be inclined to take the defendant’s side. This argument, however, does not apply to Attorney Strobel, as he, in a letter addressed to the Tribunal, wanted to express his aversion to the defendant and mentioned the meeting only incidentally.

Consequently, Strobel must be regarded as an impartial witness, whereas one might say of Herrwerth that he is perhaps not wholly disinterested. I therefore submit that Attorney Strobel also be called before the Tribunal in order to enable the Defense and, if necessary, also the Prosecution to put direct questions to this witness.

THE PRESIDENT: That concludes your witnesses, does it not? Now you can turn to the documents. No documents? Very well, the Tribunal will consider your applications.

DR. MARX: Mr. President, may I have a word please? Up to now it has not been possible for me to collect all the documents we need. There are a number of newspaper articles which I should like to submit to the Tribunal, and I ask for leave to submit the list of documents later on. I shall get in touch with the Prosecution beforehand as to which documents should be discarded and which should be put in.

THE PRESIDENT: Yes, Dr. Marx, the Tribunal will have no objection to your getting in touch with the Prosecution with reference to documents later on, but you must understand that no delay can be permitted.

I call upon the Counsel for the Defendant Funk.

SIR DAVID MAXWELL-FYFE: If Dr. Sauter would allow me, I should like to say that, with regard to these applications, there is so little between the applications and the views of the Prosecution that it might shorten matters if I were to indicate the views of the Prosecution, and then Dr. Sauter could add anything he has to say. I could be extremely short, but I do not want to forestall Dr. Sauter if he has any objection.

THE PRESIDENT: Would that meet with your view, Dr. Sauter?

DR. FRITZ SAUTER (Counsel for Defendant Funk): That I present my applications now and that the Prosecution then reply?

THE PRESIDENT: I think Sir David meant that he should first indicate any objections which he has, and then you could explain your view.

DR. SAUTER: I quite agree, My Lord.

SIR DAVID MAXWELL-FYFE: If the Tribunal please, the witnesses fall into four groups. The first group is three witnesses from the Ministry of Economics, Numbers 1, 2, and 10 on the list. As I understand Dr. Sauter, he wishes to call Number 2, Herr Hayler, as an oral witness, and to have affidavits from the witnesses Landfried, Number 1, and Kallus, Number 10. The Prosecution have no objection to this course, except that with regard to the witness Landfried they may have some observation to make on the form of the interrogatories, which could no doubt be settled with Dr. Sauter, and then put to the Tribunal for their approval. Secondly, they want to reserve the right to apply for further cross-interrogatories. Apart from that, which I submit are really minor points, they agree with that suggestion.

The second group is two witnesses from the Reichsbank, Number 5, Herr Puhl, and Number 7, Dr. August Schwedler. Again, as I understand Dr. Sauter, he wants an affidavit in the form of answers to questions. The Prosecution have no objection to that, only again they reserve the right to apply for cross-interrogatories, if necessary; if the answers take a certain form, they might have to apply to the Court that the witness be brought for cross-examination. They simply want to reserve that right, but, of course, they cannot take up their position until they have seen the form of the answers.

Then, the third group consists of one witness, who is Dr. Lammers, who has been called by most of the defendants orally, and there is no objection to that, and the Prosecution suggest that Dr. Sauter will put his questions to Dr. Lammers when he is called by the other defendants.

Then, the fourth group is a general one. There is Herr Oeser, who is an editor, Number 6; Herr Amann, Number 8; and Number 9, Herr Roesen; and lastly, Number 4, Frau Funk. As I understand it, with regard to all these witnesses, Dr. Sauter wished either an interrogatory or an affidavit. The Prosecution make no objection to that, with the same understanding that they reserve their rights to put cross-interrogatories or to ask the Tribunal to summon any of them as witnesses if any point emerges. Subject to the reservation of these points, there is nothing between us, because the result is, if I have understood it all correctly, that Dr. Sauter is asking for two oral witnesses and eight sets of interrogatories.

THE PRESIDENT: Sir David, don’t you draw any distinction between an affidavit and interrogatories?

SIR DAVID MAXWELL-FYFE: Well, I do, certainly. But, My Lord, Dr. Sauter has shown in the case of most of the witnesses the interrogatories which he is putting—apart from Dr. Lammers, who, of course, will be dealt with orally, because he is being produced as a witness. I understand that when Dr. Sauter says “affidavit” he means an affidavit in the form of answers to questions, such as those he has set out in the appendix.

THE PRESIDENT: Well, then, Sir David, so far as the Prosecution are concerned, they would take the line that you have suggested, meaning by an affidavit, interrogatories and, if necessary, cross-interrogatories?

SIR DAVID MAXWELL-FYFE: That is so.

THE PRESIDENT: Very well. Yes, Dr. Sauter?

DR. SAUTER: Mr. President, I am in agreement with the suggestions of the Prosecution as to the individual applications. As to the wording of the individual interrogatories I shall come to an agreement with the Prosecution.

THE PRESIDENT: Just one moment. Dr. Sauter, perhaps you could tell us, dealing, for instance, with Number 6—you say there, “I have in hand an affirmation from this witness with a supplement thereto.” Does that mean answers to interrogatories, or does that mean an affidavit, a statement? Have you got the passage?

DR. SAUTER: Yes, I have an affidavit from this witness, Albert Oeser, Number 6, and this affidavit will be submitted to the Tribunal, together with my document book. I am already in possession of this affidavit.

THE PRESIDENT: Well, Sir David, that is not quite the same as interrogatories. I do not know whether you have seen the affidavit. I mean, it may be that at a later stage you would want to cross-examine or to put cross-interrogatories to that witness.

SIR DAVID MAXWELL-FYFE: Yes, that would be so, Your Honor. I must reserve the right, until I have seen the affidavit, to do that. The ones that are attached to Dr. Sauter’s application are all in the interrogatory form, but where the document is in the form of a statement, the Prosecution would have to reserve these rights. Really, one cannot make any declaration until one has seen that.

DR. SAUTER: Mr. President, before I put in evidence this affidavit by the witness Oeser, Number 6, I shall, of course, pass it to the Prosecution so that they have ample time to decide as to whether they wish to cross-examine this witness. This goes without saying.

THE PRESIDENT: Where is that particular witness? Where is he?

DR. SAUTER: He is witness Number 6, My Lord.

THE PRESIDENT: Yes, but where is the man? Where is he at the present moment? Is he in Nuremberg or where?

DR. SAUTER: Witness Oeser is at Schramberg in the Black Forest, in Baden, near the Rhine. It is some distance from Nuremberg. Moreover, Mr. President, the points to which the witness is to testify are comparatively so insignificant that it would hardly be worth while to bring the witness himself to Nuremberg. I personally do not know the witness, but an acquaintance of mine mentioned him to me as a person who could give favorable information on the conduct of the Defendant Funk. Thus we got to know about witness Oeser and obtained from him an affidavit which I shall pass to the Prosecution in good time.

SIR DAVID MAXWELL-FYFE: With regard to the documents, My Lord, the first one is a biography of the Defendant Funk. The extracts were submitted as part of the Prosecution’s case. I ask that Dr. Sauter intimate what passages he desires to use, and then the Prosecution can make such objections or comments as may or may not be necessary.

The second request is, I think, the same as we had yesterday, namely for the record of the Dachau trial and of the evidence of the witness Dr. Blaha. The American prosecutors will be pleased to show Dr. Sauter the report that they have of Dr. Blaha’s evidence at that trial.

With regard to the speeches of the Defendant Funk, there again, if Dr. Sauter will intimate what they are and what he intends to use, the Prosecution will consider them. Prima facie they would be a relevant matter.

And with regard to Number 4, the copy of the newspaper with a report of the defendant’s speech, that again would prima facie be relevant, and we shall look into it. It is very unlikely that there would be any objection, but we shall look into it; and, if necessary, deal with it when Dr. Sauter makes his presentation.

THE PRESIDENT: Has Dr. Sauter the newspaper?

DR. SAUTER: Mr. President, the newspaper mentioned under Number 4, and also the speeches mentioned under Number 3, are now in my possession. I shall not use the entire text of the speeches in my brief.

THE PRESIDENT: Then you would be prepared to indicate to the Prosecution the passages in your Document 1 and the passages in 3 and 4, which you wanted to use, so that they can have them translated?

DR. SAUTER: Yes, My Lord. I shall include in the Document Book from the book mentioned under Number 1 only a few—I think two or three—pages and from the speeches and newspaper articles only those passages which I am going to use, and submit these to the Prosecution in time for translation. As to the record of the Dachau trial, this request is settled by what the Prosecution stated yesterday regarding the Defendant Frick. I believe the Dachau stenographic report is already available. I shall peruse it, so that this matter is settled.

THE PRESIDENT: Very well. Then I call upon counsel for Dr. Schacht.

DR. DIX: I am very pleased to be able to tell the Tribunal that I believe I am in agreement with Sir David as to the compass of evidence to be submitted by me, especially as to those applications which I shall either withdraw or restrict. In order to facilitate matters, may I therefore first tell the Tribunal which applications on my list I withdraw and which ones I restrict, so that eventually those will be left which I maintain. I withdraw application Number 5 for the examination of Dr. Diels. I heard yesterday that Dr. Diels has been called for as witness in another application. Should the Tribunal grant yesterday’s application and order Diels to appear, then I should like to reserve the right to examine. I myself shall, however, not apply for him.

Then I should like to call your attention to applications Number 6, Colonel Gronau; Number 7, Herr Von Scherpenberg; Number 8, State Secretary Carl Schmid; Number 9, Consul General Dr. Schniewind; Number 10, General Thomas of the armament staff; Number 11, Dr. Walter Asmus; Number 12, Dr. Franz Reuter; and Number 13, Dr. Berckemeyer. For all these witnesses I am willing to accept an affidavit. I quite realize that I have to pass affidavits to the Prosecution and that the latter have the right to apply for these witnesses to be summoned for cross-examination.

The following witnesses, therefore, remain to be called before the Tribunal: Witness Number 1, Dr. Gisevius; witness Number 2, Frau Strünck; witness Number 3, the former Reichsbank Director, Vocke; and witness Number 4, the former Reichsbank Director, Ernst Huelse. In respect to these witnesses, I must insist on my application for their personal appearance. Schacht’s defense cannot dispense with the oral examination of these witnesses. May I put forward my reasons in each case. The testimony of these witnesses is in no way cumulative. One witness knows things the other does not. Vocke and Huelse were Schacht’s closest collaborators at the Reichsbank and at the International Bank at Basel. They know of events and developments which Schacht may not be able to recall in detail. The oral examination of these witnesses cannot therefore be replaced by interrogatories because he is no longer sufficiently versed to draw up the relevant questions. These witnesses must be informed of the theme of the evidence and be given the opportunity to make a comprehensive statement.

The same, namely that they still remember events in detail which Schacht no longer recollects, applies to Frau Strünck and Gisevius, who can testify particularly as to the plans for the various attempts on Hitler’s life from 1938 to 1944.

This is all I have to say regarding my application for these witnesses.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Dix and Professor Kraus were good enough to indicate to me and my colleagues yesterday their proposals which Dr. Dix suggested be put before the Tribunal. The Prosecution felt that by limiting all the witnesses to the first point and Point 2, Dr. Dix was making a reasonable suggestion. The Prosecution, of course, reserve all rights as to the relevancy of the various points set out as to these witnesses, but they felt that that, as I say, was a reasonable suggestion. On Numbers 3 and 4 it means that the Defense are limiting all the witnesses, on the general economic course of conduct of the defendant, and again the Prosecution felt that that was a reasonable suggestion. With regard to the others, the Prosecution must, as I have said—and Dr. Dix agreed—reserve all rights by way of cross-interrogatories or of asking that the witness should be summoned, but the Prosecution felt that they could be in a position really to decide what their rights and proper course should be only when they had seen the affidavits that were put in. That is the reasoning of the Prosecution in the matter.

THE PRESIDENT: As to documents, Dr. Dix?

DR. DIX: Regarding the documents, I should like to make it clear that wherever in my list I have referred to books, published speeches, and such like, especially under Number 2, this does not mean that I intend to present to the Tribunal long extracts from these books. Only short quotations will be made and these quotations will be. . .

[The proceedings were interrupted by technical difficulties in the interpreting system.]

THE PRESIDENT: The best course would be for us to adjourn now and then this mechanical defect will be remedied.

[A recess was taken.]

THE PRESIDENT: Just one moment, Dr. Dix. I have one or two announcements to make. In the first place, the application which has been made on behalf of the defendants for a separate trial of the organizations named under Articles 9 and 10 of the Charter is denied.

Secondly, with reference to the application made on behalf of counsel for the Defendant Bormann, the Tribunal have considered the application dated February 23, 1946, by Dr. Bergold, counsel for the Defendant Bormann, in which he asks that Bormann’s case should be heard last, at the end of the cases of all the other defendants. The Tribunal have decided to grant this application.

The Tribunal also rule that the hearing of Dr. Bergold’s applications on behalf of Bormann for witnesses and documents, in accordance with Article 24(d), shall not take place at the present time, when the Tribunal are hearing the applications of all the other defendants, but at a later date to be fixed within the next three weeks.

Thirdly, with reference to the business of the Tribunal, the Tribunal will sit in closed session after the conclusion of the applications on behalf of the four defendants who are being heard today. Tomorrow the Tribunal will continue the applications on behalf of the next four defendants, and on Thursday the Tribunal will hear the case on behalf of the Defendant Göring.

Yes, Dr. Dix.

DR. DIX: Before the recess, I was about to tell the Tribunal, as to Number 2 of the list of documents, that in my presentation I would confine myself to really important and quite short quotations, after having made them available to the Prosecution in our document book. This disposes of Number 2.

Number 1 consists of extracts from copies already submitted by the Prosecution. I shall give but one example, namely, the report by Ambassador Bullitt to the Secretary of State in Washington. The Prosecution presented the last part of this report, in which they were interested, whereas I wish to reserve the right to present the first part, which deals with Schacht’s peaceful intentions and his lack of political influence on Hitler, and which is therefore of importance to the Defense.

I now turn, to Number 3, Subparagraph (a), which is the Schacht memorandum to Hitler of 3 May 1935 concerning the legal rights of Jews, dissolution of the Gestapo, et cetera.

May I again ask the Prosecution to see to it as far as possible that this document, which has not been introduced so far, be procured together with Document 1168-PS, which at the time of Schacht’s interrogation by Colonel Gurfein was produced. As I heard yesterday, the document has not yet been found, but perhaps Colonel Gurfein, who has already gone back, can assist us in this matter. These two documents are very important, as they constitute parts of a Schacht memorandum which can be understood and appreciated only in its entirety.

Furthermore, here is a letter addressed by Schacht to General Field Marshal Von Blomberg. It deals with restriction of armaments, et cetera, and its relevancy is, I think, obvious.

Still a word about Subparagraph (c). This is a Hitler memorandum of August 1936 regarding the Four Year Plan. This memorandum, in which Hitler reproaches Schacht most bitterly, even with sabotage, is of decisive importance to us. Contrary to what appears in the list, I am not in a position to produce a reliable copy of this memorandum, which under certain circumstances could replace the original. What I have is an extract, which in no way can be considered reliable and thus cannot be submitted to the Tribunal as evidence. In order to ascertain the exact contents of this memorandum, we must have the original. To my knowledge the original was among the files of the Dustbin Camp in the Taunus, and again I ask the Prosecution to assist in procuring it.

Then there is the letter written by Schacht to Göring in November 1942. Göring’s answer was to dismiss Schacht for defeatism, or rather in consequence of this letter Schacht was dismissed for defeatism. A further consequence of this letter was that Göring excluded him from the Prussian State Council. A copy of this letter was last seen by Schacht in the possession of one Von Schlaberndorff, who worked with General Donovan, but who is no longer here. Where Schlaberndorff is now, I do not know. May I ask the Prosecution to assist us also in this matter. Furthermore, there is a telegram of January 1943 from Göring to Schacht, excluding him from the State Council.

As to Subparagraph (f), I have to ask the Russian Prosecution to assist us in procuring this item. It is made up of miscellaneous notes, records of Schacht’s reflections, written soliloquies and letters, which were kept in a box at Schacht’s country seat, Guehlen, near Lindow, Mark Brandenburg—that is in the Russian occupation zone. According to information received, this box has been confiscated by Soviet troops. I should be very much obliged to the Russian Delegation if they would do their utmost to procure the box with its contents.

The documents under Number 4 are already in our possession. I do not think it necessary to enumerate and comment on them here; they will be included in our document book and the Prosecution will then have the opportunity of making observations on their relevancy. That is all I have to say now regarding the documents.

SIR DAVID MAXWELL-FYFE: With the approval of the Tribunal I shall confine the very few remarks I have to make to Paragraph 3 of Dr. Dix’ memorandum. With regard to the document for which Dr. Dix has made a request, it is not yet procured. I have asked my colleagues to make inquiries, but at the moment they cannot find certain of these documents, although a search has been made. For example, (a), the note handed to Hitler on the same day, is Document Number 1168-PS. Mr. Dodd tells me that an exhaustive search was made by the American Delegation two months ago, and they are convinced that that document is not in their possession, and the same applies to the Soviet Delegation regarding (e).

THE PRESIDENT: Who was the interrogator, Judge Gurfein?

SIR DAVID MAXWELL-FYFE: Colonel Gurfein is the one who started the American Prosecution, who conducted the interrogations at the earlier stages.

THE PRESIDENT: Where is he now?

SIR DAVID MAXWELL-FYFE: New York. That point has been borne in mind in the usual interrogations. If the document is used, it is very carefully referred to, and the American Delegation informs me that they took that line of search, and they had that in mind, and that they have not been able to find it. Similarly, in regard to Number (e), my Soviet colleagues told me that they have no trace of the document there mentioned.

THE PRESIDENT: You mean there is no reference, to that document in the interrogation conducted by Judge Gurfein?

SIR DAVID MAXWELL-FYFE: That is so, yes. They are unable to find any reference, I am told, going through the interrogation.

THE PRESIDENT: Have you any knowledge of any communication that has been sent to Judge Gurfein?

SIR DAVID MAXWELL-FYFE: I am not sure; he had gone when the search was made two months ago. I am sure that the American Delegation will look into that. What I was going to say in regard to Number (e) was that my Soviet colleagues informed me that no trace of this document has been discovered by the Russian authorities. With regard to the others, the Prosecution would like some further time to make further inquiries, and then they will report to Dr. Dix and to the General Secretary if anything can be done. With regard to the other documents, the ones which are referred to by Dr. Dix, and the many extracts, his plan is one which entirely suits the Prosecution if it suits the Tribunal.

THE PRESIDENT: I call on Counsel for the Defendant Dönitz.

FLOTTENRICHTER OTTO KRANZBÜHLER (Counsel for Defendant Dönitz): I should like to call the following witnesses: First, Judge Admiral Kurt Eckhardt. He was expert on international law in the Naval War Staff. He is to testify that the rules of international law were considered when the German U-boat war policy was laid down. This testimony is relevant in view of the documents submitted by the Prosecution, according to which the U-boat war was conducted without regard for international law.

SIR DAVID MAXWELL-FYFE: Again it might help Dr. Kranzbühler and the Tribunal, if I indicated the view of the Prosecution. They consider that Number 1, Admiral Eckhardt, and Number 2, Rear Admiral Wagner, and Number 4, Rear Admiral Godt, should not be the subject of objections; they do not make objections to these three. With regard to Commander Hessler, Number 3, it seems to the Prosecution that he is really cumulative to Rear Admiral Godt, as he ceased to be a U-boat commander at the end of 1941, before most of the material orders were issued. That is really the only point; as I said, we raise no objections to the other three. With regard to the second portion, the interrogatories, the interrogatory of Mr. Messersmith has been granted. With regard to the next three, Vice Admiral Kreisch, Captain Roesing, and Commander Suhren, these were granted on 14 February, and a slight error crept into the Prosecution’s action which was purely mechanical. The Prosecution replied that they did not object in principle and did not wish to file cross-interrogatories; they objected to two of the questions to be addressed to Commander Suhren, Numbers 7 and 8. It was intended that the same objection to the same questions should be made with regard to the other two. It appears that the document only related to Commander Suhren, but in general there is no objection; with regard to Number 5, that has been done.

THE PRESIDENT: Well, Sir David, have those mistakes been rectified, in reference to 2 and 3?

SIR DAVID MAXWELL-FYFE: I am not quite sure. I want to mention that same objection, to narrow the issues of this objection to two of the interrogatories, and in connection with all three sets of interrogatories, I do not think this has been before the Tribunal so far as I know.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: And with regard to Captain Eck, that evidence has been taken on commission, and so there is no objection. Finally, with regard to Admiral Nimitz, the Prosecution do object to that application; that is a new application, and if the Tribunal will look at the grounds, they are that the United States submarines attacked all ships apart from the United States and Allied vessels without warning, and that the United States submarines attacked all Japanese ships without warning, at the latest from the time when it could be surmised that the Japanese ship would resist being taken as a prize. And third, that the United States submarines did not assist shipwrecked people in such waters where the submarine would have endangered herself through such assistance. The reason which Dr. Kranzbühler gives is that this testimony proves that the United States Admiralty made the same strategical and legal considerations in carrying out its submarine warfare. In the submission of the Prosecution this is irrelevant. That they followed the same legal considerations might have been done as retaliation, and if so, the question whether the United States broke the laws and usages of war is quite irrelevant; as the question before the Tribunal is whether the German High Command broke the laws and usages of war, it really raises the old problem of evidence directed to tu quoque, an argument which this Prosecution has always submitted throughout this Trial is irrelevant.

FLOTTENRICHTER KRANZBÜHLER: I shall confine myself to the points to which Sir David has raised objections.

First of all, witness Number 3, Commander Hessler. I do not consider his testimony to be cumulative. He is to testify as to when Order 154, which has been submitted by the Prosecution, was abrogated. This testimony is important because the Prosecution contend that the order of September 1942 need not have been issued at all but that it would have been sufficient to refer to the old Order 154. To counter this contention Hessler is to testify that Order 154 was no longer in force at that time.

Moreover, Captain Hessler, being on the staff of the U-boat commanders from 1941 on, instructed nearly all U-boat commanders putting to sea about the orders issued, particularly the orders regarding treatment of shipwrecked persons. For these reasons, his testimony is, in my opinion, indispensable as a check on the statement of witness Moehle.

I now turn to the interrogatories for Numbers 2, 3, and 4: Admiral Kreisch, Captain Roesing, and Commander Suhren. I think that the objections of the Prosecution to two of the questions asked in my interrogatory can be dealt with only after these questions have been answered. I heard only today that objections would be raised, but I do not yet know on what grounds.

THE PRESIDENT: Have the Tribunal got the interrogatories and the objections of the Prosecution to Number 4?

FLOTTENRICHTER KRANZBÜHLER: The Tribunal have received only the interrogatories from me.

THE PRESIDENT: Have the Prosecution given us their objection to one question? This, I understand, was an objection that was made to the interrogatories put to Suhren, which should have been an objection to a particular question on the other two as well.

SIR DAVID MAXWELL-FYFE: Yes. It is very short. I will indicate it, if Dr. Kranzbühler will allow me.

The two questions were: “Is it known to you that in September 1942 German submarines saved shipwrecked people after torpedoing the British steamer Laconia and while doing so were bombed by an Allied plane?” Number 8, “Do you know whether this incident was the reason for the commander of the U-boat fleets issuing an order by which assistance at the risk of endangering one’s own boat was prohibited, and for the declaration that this was not at variance with the laws of sea warfare?”

The objections—I will read them out: “Question 7. Objection is entered on the ground that this question is unnecessary and the facts are admitted.”

“Question 8: Objection entered. It is not seen how the witness could possibly know the reason for the orders from the Defendant Dönitz.”

These are the objections that were made.

THE PRESIDENT: Yes.

FLOTTENRICHTER KRANZBÜHLER: May I say something to this? I think that the officers mentioned can testify as to the reasons for the orders received by them from the commander of the U-boat fleet, because the events which led to the order of September 1942 were generally known among the U-boat commanders, and U-boat commanders in the various theaters of war may possibly have picked up the wireless messages sent to the U-boats concerned with the Laconia incident. That is all.

I now turn to the application regarding the interrogatory to be put to Admiral Nimitz. The stand taken by the Prosecution differs entirely from the conception on which my application is based. I in no way wish to prove or even to maintain that the American Admiralty in its U-boat warfare against Japan broke international law. On the contrary, I am of the opinion that it acted strictly in accordance with international law. In the United States’ sea war against Japan, the same question arises as in Germany’s sea war against England, namely the scope and interpretation of the London Submarine Agreement of 1930. The United States and Japan were also signatories to this agreement.

My point is that, because of the order to merchant vessels to offer resistance, the London Agreement is no longer applicable to such merchantmen; further, that it was not applicable in declared operational zones in which a general warning had been given to all vessels, thus making an individual warning unnecessary before the attack.

Through the interrogatory to Admiral Nimitz I want to establish that the American Admiralty in practice interpreted the London Agreement in exactly the same way as the German Admiralty, and thus prove that the German conduct of sea warfare was perfectly legal. The same applies to the treatment of shipwrecked persons in waters where the U-boat would endanger herself by rescue measures.

THE PRESIDENT: Yes, Dr. Kranzbühler.

FLOTTENRICHTER KRANZBÜHLER: I now turn to the documents.

THE PRESIDENT: If you are departing from Admiral Nimitz I should like to ask a question of Sir David.

SIR DAVID MAXWELL-FYFE: If Your Lordship pleases.

THE PRESIDENT: Sir David, I understood you to submit that these questions to Admiral Nimitz were entirely irrelevant?

SIR DAVID MAXWELL-FYFE: Yes.

THE PRESIDENT: Would it make any difference to your submission whether the German Navy had attacked merchant ships without warning in the first instance in the beginning of their war against England?

SIR DAVID MAXWELL-FYFE: Well, that of course would be a clearer breach of the treaty, as, at that time, there was no question of armament, so far as I am aware; and there was certainly no question that the German submarines thought that they were attacking armed vessels which were really ships of war. Then, of course, one comes to the position which the Prosecution developed in evidence, that, the German Navy having indulged in the beginning in that form of submarine warfare, the position changed, and armament had to be installed in British ships. In my submission it would make a difference even if one takes the argument as Dr. Kranzbühler has put it now; he is saying that he is not alleging breaches of the laws and usages of war, but is relying on his interpretation of the London Agreement, that merchant ships that were armed could be attacked. It really becomes a very difficult matter if one is to construe these treaties by a sort of general investigation of the interpretation by various commanders. Within the point that Your Lordship put to me there is that very clear point which appears in our documents that the arming of merchant ships was the result of the attacks without warning which took place in the first months of the war.

THE PRESIDENT: But would you say that these questions to Admiral Nimitz are irrelevant because the United States came into the war in December 1941 when the sea warfare between Germany and England had developed to that stage, when attacks were being made without warning?

SIR DAVID MAXWELL-FYFE: That is so, My Lord. That is what I was saying. I am very grateful to Your Lordship for clarifying the argument that I wanted to make.

THE PRESIDENT: Is that clear to you, Dr. Kranzbühler? The argument which I understand Sir David is putting forward with reference to these interrogatories is that they are truly irrelevant because of the date at which the United States came into the war; a date when the sea war between England and Germany had, for reasons which must be investigated, arrived at the stage that submarines were attacking merchant vessels without warning, and merchant vessels were defending themselves against those attacks.

FLOTTENRICHTER KRANZBÜHLER: Yes, Mr. President. It is, however, my opinion that the conditions which developed in the sea war between Germany and England do not necessarily have a bearing on the measures applied in the sea war between the United States and Japan, as here an entirely different theater of war was involved, in which German forces did not operate. In my opinion, the directives for sea warfare in the East Asia theater of war should be based on the conditions prevailing there and not be derived from experiences made in the European theater of war.

THE PRESIDENT: Then the Tribunal will consider these arguments.

THE TRIBUNAL (Mr. Biddle): How can what any navy did show the proper construction of a law? It may show what a particular admiral thought about it, but how are we interested in knowing what one admiral or another admiral thought about the law? Isn’t that for us to decide? How is that any evidence? Isn’t that your point, Sir David?

SIR DAVID MAXWELL-FYFE: Yes.

THE TRIBUNAL (Mr. Biddle): How does that really throw any light on the meaning of a law?

FLOTTENRICHTER KRANZBÜHLER: I do not think that the principles for the conduct of sea war originate from one admiral, but that in view of their far-reaching implications they have become a matter for the government. It is recognized in international law that it springs not only from treaties, but also from acts of governments. May I give as an example that Mr. Justice Jackson in his first report to President Truman specially emphasized that international law is developed by acts of governments. Consequently, if the London Naval Agreement of 1930 did not originally imply that merchant vessels which had orders to resist were excluded, then acts to this effect on the part of the governments of all nations would have been instrumental in creating new international law to this end. I am therefore of the opinion that the attitude taken in this question by the United States as one of the greatest sea powers is decisive as to the interpretation of the London Agreement and hence as to the legality of Germany’s conduct.

THE TRIBUNAL (Mr. Biddle): Do you claim that the London Agreement is ambiguous?

FLOTTENRICHTER KRANZBÜHLER: Yes.

THE TRIBUNAL (Mr. Biddle): What words in the London Agreement are ambiguous?

FLOTTENRICHTER KRANZBÜHLER: The term “merchant vessels.”

THE TRIBUNAL (Mr. Biddle): You have not got the citation there, have you?

FLOTTENRICHTER KRANZBÜHLER: Which is it?

THE TRIBUNAL (Mr. Biddle): The phrase in the London Agreement which you claim is ambiguous.

FLOTTENRICHTER KRANZBÜHLER: I have not got it here, but I can give a fairly accurate quotation. It says that submarines are subject to the same rules as surface vessels in their conduct towards merchant vessels.

I shall later submit proof that the term “merchant vessel,” even at the Washington Conference of 1922, was considered ambiguous, and that also in books on international law published later it had repeatedly been stressed that this term is ambiguous.

THE TRIBUNAL (Mr. Biddle): Dr. Kranzbühler, you want Admiral Nimitz to give us his opinion of his construction of the treaty, do you not? Isn’t that the purpose of these interrogatories?

FLOTTENRICHTER KRANZBÜHLER: No, I do not want to hear Admiral Nimitz’ opinion, but the policy pursued by the United States in its sea war against Japan.

THE PRESIDENT: The Tribunal will consider the arguments you have addressed to them, Dr. Kranzbühler.

FLOTTENRICHTER KRANZBÜHLER: I now turn to the documents. As I have just heard from Sir David, there are no objections on the part of the Prosecution. I do not know whether I need give my reasons for submitting the individual documents.

First of all, there are the war diaries and the standing orders of the Admiralty and of the commander of the U-boat fleet. They have already been admitted, and the Prosecution do not raise any objections.

Under Number 3, I ask for the “British Confidential Fleet Orders” and “Admiralty Merchant Shipping Instructions” of the British Admiralty to be produced.

SIR DAVID MAXWELL-FYFE: My Lord, this matter came up before the Tribunal in closed session on an application from Dr. Kranzbühler. I have not heard definitely from the British Admiralty whether they agreed to do this, but I have asked Dr. Kranzbühler if he will leave this matter over for 10 days in the hope that we may be able to meet him. If Dr. Kranzbühler will not press it for 10 days, I shall, of course, let him know as soon as I have any definite information.

THE PRESIDENT: Yes.

FLOTTENRICHTER KRANZBÜHLER: I agree to that. Under Number 4 I declare my intention to submit a number of statements and letters I have received from German U-boat commanders and officers, some of them through the General Secretariat. These statements contain items from the lecture given at Gydnia by the Commander-in-Chief of the Navy and referred to by witness Heisig, including the instruction of U-boat commanders by witness Moehle and the orders regarding the treatment of shipwrecked persons. I understand the Prosecution have no objections.

THE PRESIDENT: Have you got any objection, Sir David?

SIR DAVID MAXWELL-FYFE: My Lord, many of these matters may have to be considered when the actual document is put before us. There are no class objections to them.

FLOTTENRICHTER KRANZBÜHLER: I should like to mention that I shall probably have to submit some further documents later, after I have spoken to Judge Admiral Eckhardt. May I again ask the Tribunal to allow me as soon as possible to call this witness, who is particularly important for the defense of the methods employed in U-boat warfare.

THE PRESIDENT: Yes, I think the Tribunal would grant that, subject, of course, to there being no delay regarding further applications.

FLOTTENRICHTER KRANZBÜHLER: Yes.

THE PRESIDENT: The Tribunal will now adjourn.

[The Tribunal adjourned until 6 March 1946 at 1000 hours.]

SEVENTY-FIFTH DAY Wednesday, 6 March 1946

Morning Session

THE PRESIDENT: I desire to announce a slight change in the order of business.

Dr. Stahmer has submitted a motion in writing, stating that he desired a little more time in the preparation of his documents and for other reasons would be grateful if the case of the Defendant Göring did not come on on Thursday, as announced.

The Tribunal realizes that the case of the first defendant to be heard may present some difficulties in getting the documents translated in time. As the Tribunal has announced that they would continue the hearing of the applications for witnesses until they are all completed, they will adhere to this decision. It is anticipated that this will give Dr. Stahmer one day more, but at the conclusion of the hearing of the applications for witnesses the case of the Defendant Göring will come on without further delay.

The Tribunal wishes to make it quite clear that no further applications for delay or postponement on the part of the defendants will be entertained, save in the most exceptional circumstances.

DR. SIEMERS: For the Defendant Raeder, I should like to apply first for a witness who will testify to the defendant’s character.

SIR DAVID MAXWELL-FYFE: My Lord, if it would be convenient, I might first indicate the views of the Prosecution, and then Dr. Siemers can deal with this point.

The Prosecution has no objection to the following witnesses being called for oral testimony: Number 3, the retired Minister Severing; Number 5, Vice Admiral Schulte-Moenting; Number 6 has already been sought for and not objected to by the Prosecution—a witness for the Defendant Dönitz; Number 10, Admiral Boehm.

Then, with regard to the following witnesses the Prosecution suggest an affidavit as the suitable procedure: Number 2, Vice Admiral Lohmann. . .

THE PRESIDENT: Do you mean an affidavit or interrogatories?

SIR DAVID MAXWELL-FYFE: Well, in this case I should prefer an affidavit, because it is only a history of past events that is involved.

THE PRESIDENT: Very well. Affidavit in which case?

SIR DAVID MAXWELL-FYFE: In the case of Number 2—Lohmann.

Then with regard to Number 4—that is Admiral Albrecht—his evidence covers the same ground as Number 5. It might be that interrogatories would be more convenient, but that would be a matter for my friends to decide.

Then the next, Number 7. That is Dr. Süchting, who is an engineer, and it is desired to have him speak about the Anglo-German Naval Treaty and technical questions. The Prosecution suggest an affidavit there, because apparently it is desired that he speak on technical matters.

Number 8, Field Marshal Von Blomberg, I am told, is still ill. I think that Dr. Siemers has already submitted questions and has received the answers. He ought to be dealt with by interrogatories. That is probably the easiest thing for the Field Marshal and the most suitable.

THE PRESIDENT: Was that not suggested in the case of one of the other defendants?

SIR DAVID MAXWELL-FYFE: Von Blomberg, yes. I have a note that the Defense Counsel have submitted questions. I was not quite sure whether this was Dr. Siemers or another Defense counsel. I think it was Dr. Nelte, for Keitel.

THE PRESIDENT: I think so, yes. That is Number 8.

SIR DAVID MAXWELL-FYFE: Then the next one, Von Weizsäcker, who was the Secretary of State at the Foreign Office. He is asked for with regard to the Athenia case. At the moment I cannot see the point for which the Defense want this gentleman, but I suggest that if they get an affidavit from Weizsäcker we should know what he can speak about.

Then the other one is Number 14, Colonel Soltmann. It is desired to give the results of the interrogation of certain British prisoners of war at Lillehammer. It would appear that the object was merely to give further evidence which would be cumulative to the statements in the German White Book, and therefore the Prosecution suggest an affidavit.

There are two witnesses that the Prosecution think are in the border line between admissibility and affidavits. They are really, in the submission of the Prosecution, not relevant witnesses, but the Tribunal might like to consider the question. These are Number 1, a naval chaplain who really speaks as to the general moral and religious outlook of the Defendant Raeder. That is, in the submission of the Prosecution, really irrelevant, and at the most it would be a matter for an affidavit. The position of the Prosecution is that it is really irrelevant, but it certainly should not be more than an affidavit, even if a different view was taken.

The other is Number 16, Admiral Schultze. He speaks as to an interview with the late Admiral Darlan, and the Prosecution submit that that is irrelevant; if there are any approaches to relevance—which the Prosecution have been unable to see—why then it could only be a matter for an affidavit.

The Prosecution submit that the following are unnecessary: Number 11. . .

THE PRESIDENT: Sir David, dealing with Number 16, would that not be more suitably dealt with by interrogatories? The Tribunal granted interrogatories on 9 February in that case, but I suppose they have not yet been produced.

SIR DAVID MAXWELL-FYFE: Which one was that?

THE PRESIDENT: Number 16.

SIR DAVID MAXWELL-FYFE: Yes. Well, if the Tribunal feel that it is a matter that should be explored, I agree that interrogatories would be suitable.

Then, My Lord, the ones that the Prosecution make objection to in toto are:

Number 11, Vice Admiral Bürckner, because he is cumulative to Numbers 5 and 10; Number 12, Commander Schreiber, because on 21 February Dr. Siemers said that he was willing not to call this witness if Number 5, Schulte-Moenting, was allowed; Number 13, Lackorn, who is a Norwegian merchant, who is supposed to speak of the Allied plans, without any means of knowledge being stated. This witness was temporarily given up on 21 February; Number 15, Alf Whist, who was Secretary of Commerce in the Quisling cabinet, as I understand the application. There is no indication why this witness should be competent to speak on the reputation of the Defendant Raeder; and Number 16 has been dealt with; Number 17 is Colonel Goldenberg, who was the interpreter at the meeting between the Defendant Raeder and Darlan. The Defendant Raeder gives evidence and Admiral Schultze answers an interrogatory. It will appear that that interview is well covered.

THE PRESIDENT: Yes, Dr. Siemers?

DR. SIEMERS: I thank Sir David for taking up the individual points, as a consequence of which I can, as I presume, count on the Tribunal’s approval of the points to which Sir David has agreed, without giving specific reasons.

THE PRESIDENT: The Tribunal thinks that the best course would be for you to go through the ones upon which Sir David has not agreed as to being called as oral witnesses, and then perhaps it may be necessary to deal with the ones where he has agreed. I would begin in the order in which he took them up—2, 4, 7, 8, 9—if that is convenient for you.

In the case of Number 2 he suggested an affidavit.

DR. SIEMERS: Number 2 is the Vice Admiral Lohmann. In this connection I refer to the last page of my brief, where I have discussed the documents under “III.” There I have stated that I suggested to the British Delegation that we come to some agreement as to the figures with regard to the Treaty of Versailles and the Naval Treaty. The British Delegation has promised me that such an agreement may be possible and has in the meantime communicated with the British Admiralty in London on this matter. If, as I expect, an understanding is reached, I am agreeable to an affidavit from Vice Admiral Lohmann, for then he is to testify on only a few points. I ask, therefore, that he be approved for the time being, and I undertake not to call him if the agreement mentioned is reached with the Prosecution. If this understanding is not reached, the proof of some important figures would be very difficult, and I could not do without Lohmann who is well informed about the figures; otherwise, I could.

THE PRESIDENT: What do you say about that, Sir David?

SIR DAVID MAXWELL-FYFE: I have circulated Dr. Siemers’ note and request for agreement to my colleagues, and I have also sent it to the Admiralty, and I hope that we may be able to give the information and probably to agree on these matters, but I am waiting to get that confirmed from the Admiralty in Britain; so I think if we could leave over the question of this witness until I see if I can get an agreement which will satisfy Dr. Siemers on the point. . .

THE PRESIDENT: Yes. Then if you cannot make the agreement, probably the witness would have to be called?

SIR DAVID MAXWELL-FYFE: Yes. I can let Dr. Siemers know whether there is any controversy on the point, whether I am going to challenge what he puts forward. If I am going to challenge it, obviously I should not object to the witness being called.

DR. SIEMERS: Under these circumstances, I shall be satisfied with the submission of an affidavit. I have written to Vice Admiral Lohmann, asking him to answer the other brief questions; and regarding the main points the principles just stated by Sir David will be adhered to.

THE PRESIDENT: Very well.

DR. SIEMERS: Witness Number 4, Admiral Albrecht, was one of the closest collaborators of Grand Admiral Raeder. From 1926 to 1928 he was Raeder’s Chief of Staff in Kiel; from 1928 to 1930, chief of the Navy personnel office of the OKM. From then on he was commanding admiral in Kiel, and finally Navy Group Commander East in 1939.

I should like to remark in this connection that in this last year he also joined, upon the suggestion of the Security Group commander, this organization, and from this point of view also he appears important to me. Admiral Albrecht has also, as I know, written directly to the Tribunal for this reason.

Albrecht has known the Defendant Raeder so long that he is well acquainted with his main ideas and thus orientated on the main charges of the Indictment. He has known Raeder’s trend of thought since 1928, that is to say, from the time in which the charges against Raeder have their beginning. I ask that consideration be given to the tremendous charges which are brought against Raeder covering a period of 15 years. I cannot refute all the accusations with one or two witnesses. The differences among the testimonies are so great that in such a case one cannot speak of “cumulative.”

Furthermore I ask that note be taken of the fact that so far I have been unable to talk to Vice Admiral Schulte-Moenting, who has been approved by the Tribunal and the Prosecution.

The Tribunal has also not yet informed me where Schulte-Moenting is. I presume that he is in a prisoner-of-war camp in England, but I do not know whether he will really be at my disposal, and whether I will be able to talk with him in time.

THE PRESIDENT: You are dealing with Admiral Konrad Albrecht, are you not? You are dealing with Number 4?

DR. SIEMERS: No; regarding Admiral Albrecht, we know that he is in Hamburg. I simply pointed out that it would not be cumulative if both Albrecht and Schulte-Moenting are heard by the Court.

THE PRESIDENT: You see, what Sir David was suggesting was an interrogatory in the case of Admiral Albrecht and an affidavit in the case of Admiral Schulte-Moenting.

SIR DAVID MAXWELL-FYFE: I will agree to Admiral Schulte-Moenting’s being called orally.

THE PRESIDENT: I beg your pardon. I was mixing the numbers. Yes, that is right, to call the one and have interrogatories from the other. Have you any objection to that?

DR. SIEMERS: Yes, I request that I be allowed to call both witnesses because Schulte-Moenting is to testify about a later period and Albrecht about the earlier period that was immediately subsequent to the Versailles Treaty. The position of both is entirely different. In addition, as I have just pointed out, the Tribunal has not yet informed me whether I can with absolute certainty count on the witness Schulte-Moenting, whether he has been found, whether it is known where he is.

THE PRESIDENT: Our information is that Schulte-Moenting has not been located.

DR. SIEMERS: I have no information as yet.

THE PRESIDENT: One moment. I am not sure that is right. Yes, he has been located in a prisoner-of-war camp in the United Kingdom. At least I think so.

Yes, I have a document before me here which shows that he is in a prisoner-of-war camp in the United Kingdom.

DR. SIEMERS: I thank you very much. I did not know that. Under the circumstances I am prepared, in regard to Admiral Albrecht, to accept an affidavit or an interrogatory, provided Schulte-Moenting really appears.

Number 7, Dr. Süchting. In this connection Sir David suggests an affidavit in order to speed up the Trial. I am satisfied with an affidavit.

THE PRESIDENT: Yes.

DR. SIEMERS: Again, however, with the one reservation that the matter of the figures will be clarified between me and the British Prosecution, in accordance with my letter as already discussed in connection with Admiral Lohmann, I believe that Sir David is agreeable to this.

THE PRESIDENT: The Tribunal would like to know how you suggest that these questions of shipbuilding in connection with the German-English Naval Agreements of 1935 and 1937 are relevant to any charge made here.

DR. SIEMERS: The Defendant Raeder is accused of not having adhered to the Treaty of Versailles and the Naval Agreement. Such a treaty violation is mainly a question of the building of ships. Consequently I must demonstrate what could be built according to the Treaty of Versailles and the Naval Agreement and what actually was built and what thoughts and orders the Navy had in this connection. As I said, however, I shall be satisfied with an affidavit.

THE PRESIDENT: Very well, the Tribunal will consider the arguments on that.

DR. SIEMERS: Number 8, Field Marshal Von Blomberg. The Prosecution have suggested an affidavit or an interrogatory. In consideration of Von Blomberg’s state of health, I am agreeable to this for the sake of simplicity. Since it does not involve any great number of questions, I suggest an affidavit.

Number 9, Ambassador Baron Von Weizsäcker. I submitted the application on 6 February and do not know thus far the position of the Tribunal. At the time of the Athenia case Weizsäcker was State Secretary in the Reich Ministry for Foreign Affairs. At that time, in September 1939, Weizsäcker spoke with the American Ambassador on the subject of the Athenia. Weizsäcker spoke with Hitler and with Raeder. He knows the details and must be heard on these details. I do not believe that an affidavit will suffice. First let me remark that I do not know where Weizsäcker is. But aside from that, the charge which has been made against the Defendant Raeder in the case of the Athenia is morally so grave that, although otherwise it might not be such an important point, I have to put particular stress on this point.

The British Delegation has given particular emphasis to the case of the Athenia and has made insulting attacks on the defendant in connection with this case. In the interest of the absolutely irreproachable life of my client I feel obliged to clarify this case completely. That can only be done by Weizsäcker.

THE PRESIDENT: Dr. Siemers, as far as the application goes, there is nothing to show, beyond the position of the suggested witness, that he knew anything about it at all. Under these circumstances would not interrogatories be the most appropriate course? You did not show whether he knew anything about it at all. All you say in your application is that he was State Secretary in the Reich Ministry for Foreign Affairs.

DR. SIEMERS: I may point out that I stated in my application that the witness is informed regarding the events connected with the Athenia case.

THE PRESIDENT: You say that he must know on the basis of his position as State Secretary.

DR. SIEMERS: The American Ambassador approached Weizsäcker immediately after the Athenia case in order to clarify the case. Thereupon Weizsäcker spoke with Raeder; however, only after he had already told the American Ambassador that no German submarine was involved. The question as to whether a German submarine was involved in the Athenia case was settled only after the return of the German submarine. Prior to that the Defendant Raeder had not known of it either. The German submarine returned on 27 September; the sinking was on 3 September.

THE PRESIDENT: Did you state these facts about conversations between the American Ambassador and State Secretary Weizsäcker in one of your previous applications?

DR. SIEMERS: Yes, on 6 February I did submit the application, and also mentioned in general terms the Athenia case. I may add that Weizsäcker knows also the subsequent occurrences. Weizsäcker knows exactly that the Navy, and particularly the Defendant Raeder, had nothing, absolutely nothing to do with the article which the Propaganda Ministry published in the newspapers. Weizsäcker was just as outraged about this article as was the Defendant Raeder. But it is precisely this that the Prosecution charges against Raeder.

THE PRESIDENT: Well, the Tribunal will consider what you say.

DR. SIEMERS: Let me add that I have made a mistake. I just heard that Weizsäcker is still at the Vatican in Rome; in other words, it is known where he is.

THE PRESIDENT: Yes.

DR. SIEMERS: Number 14, Colonel Soltmann. As far as I know, Colonel Soltmann will be requested as a witness also by the Defendant Jodl, and an affidavit or an interrogatory has already been sent to him. I therefore concur with Sir David that an affidavit from Soltmann will suffice, subject to the consent, or the applications of the Defense Counsel for General Jodl.

THE PRESIDENT: He does not appear to have been located yet.

DR. SIEMERS: Yes—the witness Soltmann? I have given his address in my application.

THE PRESIDENT: Have you?

DR. SIEMERS: It is Falkenberg near Moosach in Upper Bavaria.

Number 16, Admiral Schultze is in Hamburg, and it is an easy matter to have him testify personally here in Nuremberg. The Prosecution have accused the Defendant Raeder of participating in the National Socialist policy of conquest. This accusation is unfounded. Raeder, both in Norway and in France, constantly directed his efforts towards bringing about peace; in other words, not towards the effecting of any final conquest of the countries. In this Raeder found himself in a strong opposition to Hitler, and only after much urging did Raeder succeed in enabling himself to negotiate with Darlan in Paris concerning the possible conclusion of a peace. I believe that such a positive intervention for a quick termination of the war with France is important enough, in a trial like this, to have the witness testify personally. I cannot understand how Sir David, in view of his accusation, can say that this point is irrelevant. The Prosecution has constantly declared that the Defendant Raeder was agitating for war.

THE PRESIDENT: I do not believe that Sir David did say it was irrelevant. He suggested interrogatories.

DR. SIEMERS: I made a note that Sir David said the witness was irrelevant, but that he would, as a concession, agree to an affidavit.

THE PRESIDENT: Then I was wrong.

DR. SIEMERS: I simply wanted to make my position clear on the question as to whether or not this witness is irrelevant. I believe I have shown that he is relevant.

THE PRESIDENT: You want the witness? You would not agree to an affidavit or an interrogatory? Is that right?

DR. SIEMERS: I ask the Tribunal to hear Schultze as a witness here in Nuremberg, because, in my opinion in view of the principles of the Indictment, it is a vital point that Raeder’s attitude toward the entire problem is shown by facts prevailing at that time, and not by present assertions and statements.

I come now to the witness to whom Sir David has objected, witness Number 11, Admiral Bürckner. I asked for him on 31 January. So far I have received no answer. I asked to be allowed to speak to the witness Bürckner in order to acquaint myself with the details. The interview is denied me so long as he has not been approved as a witness. In order to speak with him therefore I am dependent on his being approved first as a witness. Should it then prove that this evidence is cumulative, I am willing to forego the witness. I presume that Sir David is agreeable to this.

THE PRESIDENT: Sir David, the Tribunal does not quite understand why the counsel should not have seen this officer who is in prison in Nuremberg, subject of course to security.

SIR DAVID MAXWELL-FYFE: We have no objection to the counsel’s seeing Admiral Bürckner. I think up to now the Prosecution have always taken the view that what Dr. Siemers wanted to see him about was not relevant. I do not think the Tribunal has ruled on that.

THE PRESIDENT: The view of the Tribunal is that Counsel for the Defense ought to be in touch with the witnesses before, in order to see whether they are able to give relevant evidence or not. They cannot give the evidence or the relevancy of it unless they know what the witness is going to say.

SIR DAVID MAXWELL-FYFE: No objection will be made, and Dr. Siemers can make arrangement, as far as the Prosecution are concerned, to see Admiral Bürckner at the earliest date he likes.

DR. SIEMERS: I am grateful to the Tribunal for clarifying this point. This point has made the work of the Defense Counsel extremely difficult. I have been waiting for more than a month to speak to Bürckner. For four weeks I have not been able to speak to Admiral Wagner for the same reason. I should like to speak to others also who are in the courthouse prison. They were all denied me because the Tribunal had not yet approved them as witnesses. I believe that the point is now clarified.

THE PRESIDENT: Go on, Dr. Siemers.

DR. SIEMERS: It is quite possible that, after speaking with the witness, I may not call him to the stand, particularly since I hear today that Schulte-Moenting can be called, and provided that Boehm is approved.

THE PRESIDENT: That who is approved?

DR. SIEMERS: Boehm, Number 10.

THE PRESIDENT: Oh, yes. That was Sir David’s only objection to Number 11, was it not, that it was cumulative to 5 and 10?

DR. SIEMERS: Number 12, Captain Schreiber. Sir David has rightly pointed out that I have already stated the possibility that I may give up this witness. This still stands. If the witness Schulte-Moenting and the witness Boehm actually appear, the witness Schreiber is not necessary.

Number 13, the witness Lackorn, in Leipzig. Before the occupation of Norway Lackorn was on business in Oslo. He had nothing to do with the military. It was purely by accident that he learned, in the Hotel Bristol in Oslo, that the landing of English troops was imminent. This point is important because one can only judge the defendant’s attitude toward the Norwegian undertaking if one considers the general situation of Norway. The general situation of Norway means, however, the relations of Norway with Germany, England, Sweden, and all the other countries adjacent to Norway. It is not proper, in such a decisive question, to state that only a small part is relevant. I am agreed, however, that the witness is not to be heard here. I have, therefore, while I was waiting for the decision of the Prosecution, written to the witness in order to obtain an affidavit. It is therefore agreeable to me if an affidavit only is submitted here. He need not be approved as a witness.

THE PRESIDENT: Sir David, you did not deal with that aspect of the matter, with an affidavit.

SIR DAVID MAXWELL-FYFE: Well, My Lord, I am afraid the view of the Prosecution is that the story, which apparently started in the bar of a hotel in Oslo, is not evidence which is really admissible, relevant, or of any weight in a matter of this kind. That is the view we have taken throughout.

THE PRESIDENT: Dr. Siemers, it appears from the application which is before us that you originally made a request for this witness on 19 January 1946, which appears to have been in perfectly general terms, and that the Tribunal ordered, on 14 February, that you should furnish supplementary details of the evidence which you wanted to obtain by calling this witness. Thereupon, on 21 February, you withdrew your application.

You now submit the application again without giving any details at all, simply saying that the witness had been in Oslo on business and received information there of the imminent landing of Allied forces in Norway. Well, that is a perfectly general statement, just as general as the original statement. It does not seem to comply with the orders of the Tribunal at all.

DR. SIEMERS: On 21 February I withdrew my application because of the basic point of view which I have also presented to the Court.

I have pointed out that, in my opinion, the Defense cannot be expected to give every single detail, when we have not for three months after we were consulted had the slightest word, not one word, about a single witness of the Prosecution. When we of the Defense have not had the opportunity even of taking a stand on the relevancy of their witnesses. . .

THE PRESIDENT: I have already pointed out on several occasions that the reason why the defendants’ counsel have to submit applications for their witnesses is because they are unable to get their witnesses themselves and because they are applying to the Tribunal to get their witnesses for them and their documents for them. It is a work of very considerable magnitude to find and to bring witnesses to Nuremberg.

I understand from you that with reference to this witness you are trying now to get an affidavit from him.

DR. SIEMERS: Yes. At any rate I have been making the effort. Whether I shall receive the answer in time from Leipzig, which is in the Russian Zone, remains to be seen. In the meantime, in order to facilitate matters and to avoid delay, I have written to the witness Lackorn.

THE PRESIDENT: Yes.

DR. SIEMERS: I hope that an affidavit will be available in time.

For this reason I am willing to waive having him testify here.

THE PRESIDENT: If you get the affidavit, you will be able to give the Tribunal particulars of the evidence which the witness would give, and also to show it to the Prosecution, who will then be able to say whether they wish to have the witness brought here for cross-examination.

DR. SIEMERS: Certainly.

THE PRESIDENT: Well, the Tribunal will consider this application.

DR. SIEMERS: Witness Number 15 is a Norwegian, Alf Whist, former Secretary of Commerce. By decision of the Court on 14 February he was rejected as irrelevant.

Whist can testify that the reputation of the German Navy in Norway was very good throughout the occupation, and that in Norway the complaints were directed exclusively against the civil administration and not against the German Navy. Whist knows definitely, as does every other Norwegian, that the Navy was not involved in a single illegal or criminal measure in Norway during the occupation.

If this is considered irrelevant, I presume that Sir David means that the Navy, during the occupation of Norway, behaved correctly. Of course this is a question that must be sharply distinguished from the question which I shall discuss later, that is, the question of the occupation and the attack on Norway. I am speaking now only of the time after the occupation had been carried out.

SIR DAVID MAXWELL-FYFE: The point of the Prosecution is this: That whatever the facts were, assuming for the moment that the facts were that the German Navy had behaved with meticulous correctness on every point, the view of Mr. Alf Whist, who was Secretary of Commerce in the Quisling cabinet in Norway, as to how the German Navy behaved would not have the slightest interest or relevance or weight with anyone. That is the view of the Prosecution.

DR. SIEMERS: I hoped that Sir David would make his position clear as to whether charges in this connection will be made against the Navy. Sir David speaks of the Germans in general. I draw attention to the fact that the entire administration in Norway was a civil administration, and that, in the Terboven jurisdiction, the Navy had nothing to do with this administration; if I have named a single witness where I might have named hundreds, I did this only to give the Tribunal a picture of how Admiral Boehm, the Navy, and Raeder conducted themselves.

THE PRESIDENT: The Tribunal will consider it, Dr. Siemers.

DR. SIEMERS: Thank you.

THE PRESIDENT: Then you have still Number 17, the interpreter.

DR. SIEMERS: Regarding Lieutenant Colonel Goldenberg, it is Sir David’s point of view that he is unnecessary; if Admiral Schultze is approved as witness, an affidavit from Goldenberg will suffice for me. A short affidavit appears to me to be important, because Goldenberg was present as an impartial interpreter at every conference which took place between Darlan and Raeder. An affidavit will suffice in this case.

THE PRESIDENT: I think you can pass now to your documents. I ought to call your attention to an observation at the end of your application, which is that you intend to summon one or more witnesses. Who are they?

DR. SIEMERS: The Tribunal has declared that the details about a witness have to be submitted a long time in advance only because the Tribunal must procure the witness. When it is a question of a witness who comes to Nuremberg on his own initiative, I should be obliged for a decision on the point in connection with my defense, as to whether or not the Tribunal will admit such a witness.

THE PRESIDENT: Dr. Siemers, I have stated one of the principal reasons why Defense Counsel have to make applications, and another principal reason is a necessity for expedition in this Trial—expedition and security. The question of security is important, and therefore we must insist on being told who the witnesses are that you wish to call, Dr. Siemers. Otherwise, you will not be able to call them.

DR. SIEMERS: Am I obliged to do this even when the witness is already in the building?

THE PRESIDENT: Certainly, because, as I have told you, there are 20 or 21 defendants in the dock; and we have to try and make this Trial expeditious and we therefore cannot allow them to call as many witnesses as they choose to call. But if it is a question of your not having the names of the witnesses in your mind at the moment, you can certainly specify them after a short delay, or tomorrow.

DR. SIEMERS: I shall submit information on this matter shortly. I do not want to name the witness before I have talked it over with him.

THE PRESIDENT: Dr. Siemers, the Tribunal has no objection to your applying in respect of other witnesses, provided that you do so by tomorrow.

DR. SIEMERS: Very well, I know that, at the moment, the witness in question is not in Nuremberg, so that I cannot talk to him at the moment. I ask the Tribunal to pardon me for being so cautious. The Tribunal will be cognizant of the fact that witnesses have been taken into custody. I cannot take the responsibility for somebody’s being taken into custody because I named him as a witness. That is the reason. I shall, however, notify the Tribunal as soon as the witness is in Nuremberg and I have had a chance to speak to him. I shall do so within 24 hours. It is here a question of a testimony which would take 10 minutes at the most of the Court’s time. Therefore, I do not believe that this will burden the Tribunal too much.

THE PRESIDENT: Very well.

DR. SIEMERS: Then I should like to add that I can give the address of the witness Severing, retired Reich Minister. I received it yesterday by telegraph. Witness Severing is Number 3 and the Prosecution is agreeable to his being heard. I shall submit the address in writing to the General Secretary. He is in Bielefeld and can be reached without trouble.

THE PRESIDENT: Yes. If you give it to the General Secretary, that is all that is required. And now would probably be a convenient time to break off for 10 minutes.

MR. DODD: Your Honor. There is the matter of Admiral Bürckner. So far as we know, Dr. Siemers made one request about Admiral Bürckner some time ago, and at that time he was told, as I understand it, that Admiral Bürckner was to be called or that the Prosecution intended to call him as a witness, and that therefore we did not think it proper for him to talk to Admiral Bürckner until after we had called him as a witness.

Up to a very late date in this presentation of our case, we still had in mind calling Admiral Bürckner. I think some reference was made to him, as a matter of fact, before the Tribunal, with reference to the witness Lahousen. And it was for that reason that we told Dr. Siemers that we did not think he should talk to the witness until after he had testified or a decision had been made with reference to his testimony. But we have at all times tried to co-operate with the Defense and make available these people who are here in custody so that they may talk with them.

THE PRESIDENT: We will adjourn now for 10 minutes.

[A recess was taken.]

DR. SIEMERS: May I add something regarding the witnesses? Concerning witness Number 1, Marinedekan Ronneberger, I agree to use an affidavit as suggested by Sir David. Concerning the witness Bürckner, I would like to mention that Mr. Dodd’s statement is based on an error. I am not permitted to speak to the witness, because he has not yet been approved by the Tribunal as my witness. No other reason was given.

THE PRESIDENT: We do not think any further discussion is necessary about this witness. I have already stated what the members of the Tribunal will act upon.

DR. SIEMERS: I did not understand whether Mr. Dodd agreed to my speaking with the witness Bürckner now.

THE PRESIDENT: I think he said so. He said the Prosecution have closed their case, and they now have no longer any objection to your seeing the witness.

DR. SIEMERS: Then one last remark. The Tribunal will have noticed that I have not requested any witness concerning naval warfare and submarine warfare. The reason is that I have agreed with Dr. Kranzbühler that Dr. Kranzbühler will deal with the entire complex of naval warfare and submarine warfare, although, in this respect, it not only affects Grossadmiral Dönitz, but also in a considerable degree Grossadmiral Raeder in his capacity as Commander-in-Chief of the Navy. Therefore, insofar as the interests of Grossadmiral Raeder are concerned in this matter, Dr. Kranzbühler will also represent him.

I should like to point out only that Dr. Kranzbühler’s very important application regarding the questions to Admiral Nimitz not only affects Grossadmiral Dönitz but, in particular, Grossadmiral Raeder, and beyond that, the organization of the General Staff, insofar as the Navy is concerned.

May I pass to the documents now?

SIR DAVID MAXWELL-FYFE: With regard to Document Number 1, The War Diaries of the Seekriegsleitung and the B.d.U., Dr. Kranzbühler’s assistant Dr. Meckel, has gone to London to work on these at the Admiralty.

With regard to Number 2, Weyer’s Navy Diary, and Nautikus’ Navy Year Book, there is no objection to Dr. Siemers having these. He will indicate in the ordinary way the passages he intends to use.

With regard to General Marshall’s report of 10 October 1945, I cannot see the relevancy of it at the moment, but if Dr. Siemers will indicate which part he intends to use, it can be discussed when he actually presents it to the Tribunal.

Now Number 4, the British Admiralty documents, May 1939 to April 1940, which are wanted as to the preparations of landing in Scandinavia and Finland. Although, strictly, what is relevant is what was known to the Defendant Raeder, I shall make inquiries about these documents, and if the Tribunal will give me a short time, I hope to be able to report to the Tribunal upon them.

I want to make it clear that I cannot, of course, undertake to give details on Allied documents; but I hope to be able to produce some documents which may be helpful to the Tribunal, and deal with them authoritatively. I would rather not be pressed for details at the moment.

DR. SIEMERS: I agree with Sir David, I hope that I will receive the books which belong to Number 2 and Number 3 soon, because otherwise a delay may be caused. The report of General Marshall of 10 October 1945 is, as far as I can judge from the excerpts, important for the reason that General Marshall adopts, on various points, an entirely different attitude from Justice Jackson’s. I believe that a comparison of two such outstanding opinions is of sufficient importance to have the report of General Marshall also heard here. Concerning Number 4, I am waiting for the final decision of the Prosecution.

I have only one more request, and I ask to be excused, since, by error, I have not listed this Number 5. It is the following: The Prosecution has repeatedly presented quotations from the book Mein Kampf by Adolf Hitler and inferred from it that each one of the defendants who held a leading position as early as 1933 should have known from this book, even before 1933, that Hitler was contemplating the launching of aggressive wars. I noticed that the quotations in the document book which was presented in November are all taken from an edition which was published only in 1933. The edition of 1933, however, differs in many points from the original edition. Unfortunately, I am personally only in possession of an edition which was published after 1933. In order to check these questions, that is to say, in order to see what anybody could have read in this book in 1928, and not 1933, I ask the Prosecution to try to submit a copy of the first edition. As far as I know, the first edition was published in 1925, and the second in 1927, by the publishing firm of Franz Eher.

SIR DAVID MAXWELL-FYFE: We shall try to get an earlier edition, so that Dr. Siemers can compare the passages.

THE PRESIDENT: Are you going to deal with Page 2 of your document? Sir David, you have not dealt with this, have you?

SIR DAVID MAXWELL-FYFE: No. I assume, Your Lordship, that Dr. Siemers would, in due course, indicate what excerpts he was going to use. We could discuss when he presents them, whether the Prosecution have any objection.

THE PRESIDENT: Yes. You intended, Dr. Siemers, I suppose, to indicate the passages upon which you rely in your document book?

DR. SIEMERS: Yes.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL-FYFE: We have already discussed the point on Page 3, that is the question of tonnages built, and so on—I said I am making inquiries with regard to that.

THE PRESIDENT: My attention is drawn, Sir David, to Paragraph 4 B on Page 2. Are you suggesting that the Tribunal supply him with documents on German policy without any further reservation?

SIR DAVID MAXWELL-FYFE: I am very sorry. It was an oversight. I took it that that was included in the words at the top of the page:

“In addition, I shall submit documents and affidavits, some of which are already in my possession, and some of which I shall procure myself without having the assistance of the Prosecution.”

I took it that Dr. Siemers had certain documents on German policy, and will indicate what passages he is going to use. I am very sorry I did not refer to that.

THE PRESIDENT: Does this part of the application mean that, with reference to all these documents, Dr. Siemers has them and does not wish any further action to be taken with reference to them?

DR. SIEMERS: Yes, Sir.

THE PRESIDENT: I call on counsel for the Defendant Von Schirach.

SIR DAVID MAXWELL-FYFE: Dr. Sauter suggests it would be convenient if I indicate the view of the Prosecution.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: May I ask the Tribunal to note that Dr. Sauter is asking for witnesses 1 to 8, except witness 5, as oral witnesses; that is, he is asking for seven oral witnesses, and Numbers 5 and 9 to 13 by way of affidavit.

The Prosecution suggest that, as far as oral witnesses are concerned, the defendant might have Number 1 or Number 2. that is, Wieshofer or Hoepken, because these witnesses appear to cover the same ground; that he might have Number 3, the witness Lauterbacher, who was Chief of Staff of the Reich Youth Leadership (Reichsjugendführung); and, also, that he might have Number 8, that is Professor Heinrich Hoffmann, who, I think, is Schirach’s father-in-law—since the description of his evidence takes up nine pages of the application, he is obviously a very important witness.

Then the Prosecution suggest that there might be affidavits from Number 5, Scharizer, who was the deputy Gauleiter of Vienna; Number 11, who is Madame Vasso; Number 12, Herr Schneeberger; and Number 13, Field Marshal Von Blomberg.

The witnesses that the Prosecution find difficulty in perceiving the necessity for are: First of all, Number 4, Frau Hoepken—there are no details given in this application, except that she was secretary to Von Schirach; Number 6, the witness Heinz Schmidt, who apparently repeats part of the evidence of the witness Lauterbacher word for word; Number 7, Dr. Schlünder, who also repeats the witness Lauterbacher word for word; and Number 9, Dr. Klingspor, who passes a personal view on the defendant, which, in the submission of the Prosecution, is not really helpful evidence; and finally, Dr. Roesen, Number 10, who speaks as to an isolated incident of kindness on the part of the defendant to the family of the musician Richard Strauss.

This is the position which the Prosecution take with regard to the witnesses.

DR. SAUTER: Your Honors, I have, in the case of Baldur von Schirach also, limited my evidence as much as possible. For a personal hearing, here before the Tribunal, I have proposed as witnesses, Numbers 1, 2, 3, 6, 7, and 8, and I must earnestly request you, Your Honors, to grant me these witnesses.

The difficulty, in the case of Schirach, as regards the presentation of evidence, is that evidence must be produced and offered for two entirely separate complexes. One is the activity of the Defendant Von Schirach in his capacity as Reich Youth Leader; and the second is his activity in Vienna, during the period from 1940 to 1945, in which he still exercised certain functions in Youth Leadership in addition to his main duties. Therefore, I need witnesses for both these activities of the Defendant Von Schirach.

In addition to this difficulty there is still another one. The Defendant Von Schirach was Reich Youth Leader, and that implied that practically without exception all his collaborators were relatively young people who during the second World War served a long time in the Army. Therefore it is quite possible that for a few years during the World War one witness might know nothing at all, because he did not work on the staff of the Defendant Von Schirach during this time; and that therefore, for this time, another collaborator of Schirach will have to be called upon, in order to give information on his activity.

Your Honors, in earlier written applications I had requested more witnesses, but I have omitted these additional witnesses right from the beginning in the application now submitted to you, in order to contribute thus, as far as I can, to expediting the procedure. But, Your Honors, these six witnesses that I have requested to have brought before the Tribunal I really must have granted me for, if a clear picture of Schirach’s activities is to be gained, I cannot forego any one of them. I may also point out that all these six witnesses that I have listed under the numbers given, for the purpose of calling them, have already been approved by the Tribunal, so that the new approval will consist only of a repetition of your own earlier decision.

The witness Wieshofer, Your Honors, who is listed under Number 1, was from 1940 to 1945 adjutant of the Defendant Von Schirach; that is to say, during the period that covers the activity of the Defendant Von Schirach as Gauleiter of Vienna and Reichsstatthalter.

This collaborator, who was with the Defendant Schirach daily and who knew him very well, has been named by me particularly for the purpose of testifying—although, of course, he will also testify on other things—that Schirach, in his capacity as Gauleiter of Vienna, pursued an entirely different policy to that of his predecessor, the former Gauleiter Bürckel; that he, contrary to Bürckel, endeavored to establish correct relations with the Catholic Church, and that, with this aim in mind, he successfully influenced and instructed also his collaborators and subordinates. I say successfully, because these efforts by the Defendant Von Schirach to bring about satisfactory relations with the Catholic Church have also been repeatedly acknowledged on the part of the Church, as well as by the Catholic population of Vienna.

Besides, the witness Wieshofer will also corroborate that the Defendant Von Schirach had nothing at all to do with the deportation of Jews from Vienna; that this matter of the Jews was. . .

THE PRESIDENT: Do not Numbers 1 and 2, Wieshofer and Hoepken, really deal substantially with the same subject? Would it not be sufficient if one were called as a witness and if the other one gave evidence by interrogatory?

DR. SAUTER: I do not quite think so, Mr. President, because the witness Hoepken, who is listed under Number 2, was a collaborator of the Defendant Von Schirach as early as 1938, in the Reich Youth Leadership, and because he is supposed to give information especially about the activity of the Defendant Von Schirach as Reich Youth Leader and in particular also about his efforts to bring about understanding and friendship with the youth of other nations, such as, for instance, England and France. I believe, Your Honors, that with regard to the specific importance of these particular questions, the attitude of the Defendant Von Schirach in the naming of witnesses should be given recognition here, and that not one witness only, but both should be granted. I have submitted the addresses of both witnesses to the Tribunal. They are in a camp, and I believe, Your Honors, it is imperative to summon both witnesses to establish the facts.

THE PRESIDENT: I still do not follow what the essential difference is between the two.

DR. SAUTER: Mr. President, I have just pointed out that the witness Number 2, Hoepken, had a leading position in the Reich Youth Leadership, and that therefore the witness Number 2, Hoepken, is in a position to give information especially about the activity of the Defendant Von Schirach as Reich Youth Leader.

THE PRESIDENT: But Dr. Sauter, you stated that Wieshofer, Number 1, was adjutant to Schirach in his capacity as Reichsleiter of Education of Youth, so that he was in just as close contact with the defendant on the question of the education of youth as Hoepken.

DR. SAUTER: Yes, but youth education was Hoepken’s main official task while the activity of the witness Wieshofer was limited mainly to the job of adjutant to the Defendant Von Schirach, primarily in his capacity as Gauleiter in Vienna. That is the main difference, and the witnesses who could provide information about his activity in Vienna are mainly the witness Wieshofer and, to a small extent, also Hoepken. But I need Hoepken, by all means, as I said, for the clarification of the activity of Schirach in the Reich Youth Leadership.

Mr. President, may I also point out that much is at stake for the Defendant Von Schirach, and that, from the point of view of the Court, it should really not make much difference, in a matter so important to Schirach, whether one witness or two witnesses are called.

Your Honors, I could have suggested perhaps four witnesses in the hope that two would then be granted. If now, in the name of the Defendant Von Schirach, I am proposing to call only two witnesses, I would not think it very just if one of these two witnesses should be denied.

THE PRESIDENT: The Tribunal will consider what you have said.

DR. SAUTER: Furthermore, Your Honors, in the third place, I have to request Hartmann Lauterbacher. If I have understood correctly, the Prosecution agree to this; therefore, I can be brief.

The witness Lauterbacher, who was Chief of Staff of the Reich Youth Leadership, is in a position to supply information especially about the fact that the Defendant Schirach in no way prepared the youth psychologically and pedagogically for the war, and by no means for an aggressive war. Furthermore, he can testify that the allegations of a Polish report—presented by the Russian Prosecution in one of the sessions during February, I believe on 9 February 1946—are definitely false. According to this report, the Hitler Youth had used spies and parachute agents in Poland. And this is false and the witness Lauterbacher will refute it. . .

THE PRESIDENT: Dr. Sauter, Sir David said he would not object to Number 3 being called as a witness, but what he did object to was 6 and 7, whom you are also asking for, as oral witnesses, because he said that they repeated what Lauterbacher said—Numbers 6 and 7, that is Schmidt and Schlünder.

DR. SAUTER: Mr. President, there again is the difficulty which I pointed out before. From the Polish Government report which was read by the Soviet Prosecution on 9 February 1946, it cannot be seen in what period these activities concerning the Hitler Youth agents and spies are to have taken place.

Now it may happen here that, if I have only one witness, it will be alleged that it was at some other time, perhaps at a time when this witness was in the Army; and that is why, in the interest of a complete clarification of these facts, I have asked to have witness Number 6 heard also. That is the witness Schmidt.

THE PRESIDENT: Well, if you say that, does it not appear that, with reference to Schlünder, his collaboration with the defendant extended from 1933 to 1945 and therefore if he were called or were to give an affidavit or an interrogatory, and Lauterbacher, who extends only from 1933 to 1940, you would cover the whole period and you could exclude Schmidt?

DR. SAUTER: If I understand you correctly, Mr. President, you are referring to an interrogatory in the case of Lauterbacher.

THE PRESIDENT: No, Sir David was prepared to have Lauterbacher called as a witness.

DR. SAUTER: Lauterbacher is to be called as a witness and Schmidt is to receive an interrogatory?

THE PRESIDENT: He said that Schmidt and Schlünder were cumulative. Then you said they did not relate to the same period, as I understood you, and that might raise a difficulty. So I pointed out to you that Number 7 related to the whole period, that is to say from 1933, beyond the period dealt with by Lauterbacher, and goes to 1945, and therefore, if he were called, that would cover the whole period, and if you called Lauterbacher and Schlünder and left out Schmidt. . .

DR. SAUTER: You mean that an interrogatory is to be obtained from Schmidt? I am agreeable to that.

THE PRESIDENT: The statements which you make with reference to Schmidt and to Schlünder are practically identical.

DR. SAUTER: Yes, only they refer to different periods, as each of them was in the Army. If one of them comes, he cannot say anything, of course, about the time during which he served in the Army. He cannot give any information as to whether, during his military service, agents were used.

THE PRESIDENT: I do not know about that. You have stated that they were collaborators with the defendant from 1938 to 1945 in the one case, and from 1933 to 1945 in the other case, and therefore, if that is correct, they cannot have been in the Army; they cannot have taken an active part in the Army.

SIR DAVID MAXWELL-FYFE: I should be quite prepared to agree to the suggestion that Your Lordship put forward; that would then cover the whole period. If both Lauterbacher and Schlünder were called, it would dispense with the necessity for Schmidt.

DR. SAUTER: May I point out, Mr. President, that in any case I need Schlünder, who, by the way, was arrested a few weeks ago, because he was a specialist for physical training with the Reich Youth Leadership, and because, therefore, I want to prove, especially through Dr. Schlünder, that the education of the youth, as administered by the Defendant Von Schirach, was absolutely neither extraordinary nor militaristic. The Defendant Von Schirach has thus far, during the entire procedure in his interrogations. . .

THE PRESIDENT: I think, really, there is a substantial agreement between you and Sir David that Number 1 and Number 3 certainly should be called and that Number 7 might be called; but I do not know whether Sir David agrees that an affidavit or an interrogatory might be given by Number 6.

SIR DAVID MAXWELL-FYFE: I have no objection to that, My Lord.

THE PRESIDENT: That is substantially what you want, Dr. Sauter?

DR. SAUTER: Yes, Sir.

THE PRESIDENT: Very well; let us get on then.

DR. SAUTER: Your Honors, I have then, in addition, under Number 4, listed an affidavit by a witness, Maria Hoepken. I shall submit this affidavit, which is already in my possession, to the Tribunal and to the Prosecution, along with my document book, sufficiently in advance.

Then I have also affidavits in my possession, if I may mention that now, from two witnesses: Number 9, Dr. Klingspor, and Number 10, Dr. Roesen. The same thing applies here. The Tribunal and the Prosecution will receive these two affidavits in time, together with my document book.

Concerning Number 8, the witness Hoffmann, the Prosecution agree to having him called as a witness since this witness is here in Nuremberg. Therefore I believe that I do not have to make any detailed statements concerning this witness.

The same applies to Number 12 and Number 13. These are two witnesses: One a Gauobmann Schneeberger from Vienna, who, primarily, is to inform us on the attitude of the defendant on the question of foreign workers during the time of his activity as Gauleiter in Vienna; and Number 13, Field Marshal Von Blomberg, who is to inform us on the attitude of the Defendant Von Schirach on the question of the premilitary education of the youth, on the question of physical training, and on the question of patriotic education of youth. The Prosecution agree to interrogatories from these two witnesses—which I have already suggested myself.

And now, Your Honors, I come to the one figure on my list which is closest to the heart of my client and myself. It is Number 11; that is the application to examine a French woman by the name of Ida Vasso. Of this witness, Ida Vasso, we have heard in court for the first time when the Soviet Prosecution submitted a commission “Report on the Atrocities of the Fascist-German Invaders in the Lvov Area,” as the title reads—Document Number USSR-6.

This document contains a sentence to the effect that a French woman, Ida Vasso, who was working in a children’s home in Lvov, had reported that the Hitler Youth had committed special atrocities in Lvov. It was alleged that from the ghetto small children were sold; however, it was not revealed by whom and to whom these children were to have been sold; and yet, as a matter of course, it is the Hitler Youth who are said to have used these children as targets.

Your Honors, we are fully aware that such happenings would represent a quite extraordinary atrocity, and I can tell you that none of all the presentations of the Prosecution during the last three months has so distressed the Defendant Schirach, as has this statement. The Defendant Schirach has always, even in his earlier interrogations, maintained that he assumes full responsibility for the education and training of the German Youth, as directed by him; and that he is ready and willing, even as a defendant here, to explain to the Tribunal what principles guided him, what aims he had, and what successes he achieved. He has, for instance, never denied that this youth training was based on patriotism. . .

THE PRESIDENT: Dr. Sauter, you are only applying for witnesses now, are you not? You see, you agree in your application to an affidavit. . .

DR. SAUTER: I did not understand, Mr. President?

THE PRESIDENT: What I was pointing out to you was that this is only an application with reference to witnesses, and in your application you say, “However, in consideration of the far distance of the witness from Nuremberg, I agree that at first an affidavit should be drawn up.”

DR. SAUTER: Yes.

THE PRESIDENT: Sir David agreed that an affidavit should be drawn up. So you are in agreement, and I do not understand why we should be troubled with further application.

DR. SAUTER: However, Mr. President, I have added something to my application. I have written that a personal appearance of this witness before the Tribunal would be useful so that she can be questioned, because her testimony is important for the judging of the Hitler Youth as a whole. I have also added. . .

THE PRESIDENT: Your application states that you reserve that right. Well, you can prepare the affidavit and then send it out to the witness, and then you can see whether you want the witness for cross-examination. And Sir David agrees to that course.

DR. SAUTER: Mr. President, my client attaches so much importance to this particular case for the following reasons: The HJ, that is the Hitler Youth, which he led, comprised about 8 million members. It was therefore larger than. . .

THE PRESIDENT: But Dr. Sauter, the Tribunal quite understands why the defendant is interested in the matter. But it seems to them it would be perfectly satisfactory if an affidavit were drawn up and sent to the witness; and then you can see whether you want the witness, whose present location is unknown, brought here personally.

DR. SAUTER: Mr. President, my client noticed one thing in particular, that is, that among 8 million members only one single case of atrocities occurred, of which he never heard anything at all in the Reich Youth Leadership. However, I agree to the obtaining of an affidavit for reasons of expediency; but for just this case I must reserve the right to have the witness called, if the affidavit should be insufficient.

THE PRESIDENT: That deals with the witnesses, and we had better adjourn now.

[The Tribunal recessed until 1400 hours.]

Afternoon Session

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents for which Dr. Sauter asked, the Prosecution take the usual line that there is no general objection to extracts being used, but at this stage they reserve their right to challenge admissibility of the extracts on the grounds of relevance.

They will have to look particularly closely at Number 9, the book entitled, Look, the Heart of Europe, and the commentary on it by the late Lord Lloyd George, but they can see that these are particularly matters which can be more conveniently dealt with when they have seen the document book and the extracts are before them.

DR. SAUTER: Mr. President, I can state my position regarding the documents very briefly. In the main, it is a question of books, speeches, and essays by the Defendant Von Schirach. These literary works are in my possession and I shall submit them to the Prosecution along with my document book. With the document book I shall submit to the Tribunal and the Prosecution the individual extracts which I propose to use as evidence, so that the Prosecution will still be able to make any statements it wishes with regard to the individual excerpts.

I believe that is all I have to say on that subject.

DR. SEIDL: Mr. President, on 28 February I made a supplementary motion on behalf of the Defendant Hess. I should be grateful if the Tribunal would inform me whether they wish to hear the argument in regard to this motion now or later, since I do not know whether the Tribunal have a translation of my motion in their hands.

THE PRESIDENT: The Tribunal have not seen the application yet, so I think you had better postpone making the argument until the Tribunal has seen the application.

DR. SEIDL: Very well, Mr. President.

DR. SERVATIUS: For the Defendant Sauckel I have suggested a number of witnesses and in my preliminary remarks on the list I have divided them into various groups.

The peculiarity of this evidence, as presented, lies in the fact that in this case a mosaic of smaller facts has to be clarified. In its case against Sauckel the Prosecution confined itself to the production of incriminating material generally, and did not work out the full details about SS assignments carried out under the auspices of the Labor Service and similar matters.

Very few facts have been established at all with regard to Sauckel’s sphere of activity generally. I am compelled, in consequence, to present his staff, his collaborators, and their spheres of activity. At first sight my list of witnesses may appear cumulative, but closer inspection shows that they represent different fields. Some of them are experts on Eastern affairs, others deal with the West or South. There is the question of direction of manpower, supplies, housing, and the authority exercised by individuals. The recruitment of workers in foreign countries comes under another head; and witnesses must be heard on this subject, too.

In Sauckel’s case, the question of manpower is all-important and that of conspiracy is a secondary matter. I believe I can rely to a very great extent on the statements which may be expected from others among the accused and from their witnesses.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Prosecution have endeavored to follow Dr. Servatius in considering the suggested witnesses under various heads.

The first witness, Ambassador Abetz, falls into a class by himself. The defendant’s counsel wishes to call this witness on the question of agreements between him and Laval. The Prosecution submit that that cannot affect the position over, certainly, Occupied France, and suggested that this witness is really irrelevant to the main charges which have been made against the defendant. My French colleagues will, however, if Dr. Servatius desires it, let him know the effect of an interrogation of Ambassador Abetz with regard to this subject. I do not want to comment on it at the moment, because it is obviously a matter which Dr. Servatius should consider before any comment is made on it in court. But, if he will allow me to say so, I think it would be useful if he considered that point before any decision was come to.

Then, the next group are the witnesses 2 to 8. They all come from the Reich Ministry of Labor, and they are called to speak generally as to the defendant’s attitude, the limitations on him as regards recruiting, and his personal dealings with offenders. The Prosecution suggest that it will be reasonable for Dr. Servatius to select the two best out of eight for oral testimony, and two more to give affidavits.

The next three, Numbers 9, 10, and 11, were members of the Defendant Sauckel’s staff, who are sought to be called to give evidence as to his efforts to obtain good conditions. Again, the Prosecution suggest a selection, and put forward one witness and one affidavit.

Number 12, the witness Hoffmann, is called for the purpose of saying that the DAF, the Deutsche Arbeitsfront, looked after the welfare of foreign workers by agreement with the late Dr. Ley. The Prosecution submit that that witness would be cumulative, and object to him, as that subject is already covered.

Then there are a series of witnesses, Numbers 13 to 18, who deal with the relations and liaison between the Defendant Sauckel and the DAF. These are substantially still on the same point, and the Prosecution suggest that one witness and one affidavit out of that group would be sufficient.

The next witness, Number 19, Karl Goetz, bank director, deals with the question of wages, and also of the transmission of money to their homes by foreign workers. The Prosecution suggest that that is the sort of material which might conveniently be dealt with by an affidavit or an interrogatory, according to Dr. Servatius’ wishes.

Number 20, Beckurtz, deals with the special conditions of foreign workers at the Gustloff works. That subject has been thoroughly covered in general by previous witnesses, and the Prosecution suggest that this particular witness is cumulative.

With regard to Franz Seldte, from the Reich Ministry for Labor, he deals with the division of authority between Sauckel and Ley and the contention that Sauckel had nothing to do with labor from concentration camps. Again, the Prosecution suggest that an affidavit would show how far the witness Seldte is speaking merely of routine matters, such as orders and the like, and how far he is dealing with individual or personal matters. If he does in fact deal with individual and personal matters and interviews, then I suggest that Dr. Servatius could resume his application on that point.

The witness Darré, who was the former Reich Minister for Food and Agriculture, is sought in order to speak as to the defendant’s efforts to get higher food rations for foreign workers, especially in Eastern areas. The Prosecution suggest that this witness also is cumulative, and it will indicate a number of other witnesses and documents which deal with this point.

As to Number 23, General Reinecke, there is no objection.

Number 24, Colonel Frantz, is sought to say that French prisoners of war were exchanged against voluntary workers. The Prosecution object on the ground of irrelevance.

As to Number 25, there is no objection to Dr. Lammers, who is being called by, I think, every defendant, or practically every defendant.

The next, 26, the witness Peuckert, again deals with the administrative position and executive apparatus of Sauckel, which has already been treated by witnesses at considerable length, and the Prosecution object to this as cumulative.

Number 27, Governor Fischer, Chief of Labor in the Government General, is called to say that Sauckel had made dealings with the SS in regard to resettlement. Again, if he is speaking as to rules and orders that were laid down, we suggest an affidavit.

As I understand it, the next witness, Dr. Wilhelm Jäger, is asked for cross-examination on his affidavit. That is Exhibit Number USA-202 (Document Number D-288), and the references in the transcript are 1322 to 1327 (Volume III, Pages 441-446) and 3057 (Volume V, Page 509). No request was made at this time, and I leave it to Dr. Servatius to explain his position before dealing with this point.

The next two, Dr. Voss and Dr. Scharmann, deal with the public health aspect of foreign workers. They deal with different districts. The Prosecution submit that that question could be dealt with by one affidavit.

As to the next three witnesses, 31, 32, and 33, I think the position is that Dr. Servatius wants one of the three to dispute certain evidence given by M. Dubost on 28 January that the defendant authorized the evacuation of Buchenwald. I have looked, at Pages 3466 to 3492 of the transcript (Volume VI, Pages 242-263), but I cannot find the evidence which Dr. Servatius has in mind, and perhaps he would be good enough to indicate it to the Tribunal.

With regard to 34, Skorzeny, who is called to prove that the defendant, as Gauleiter, had nothing to do with concentration camps, we make no objection.

With regard to Schwarz, to prove that the chart of the Party produced before the Tribunal was incorrect in one respect, we suggested that that be allowed.

With regard to Frau Sauckel, who is desired in order that she may speak as to the defendant’s charitable disposition, irrespective of the Party, the Prosecution suggest that that is irrelevant to the issues before the Tribunal.

I think it is impossible in this case, My Lord, to leave the witnesses without asking the Tribunal to take a glance at the documents, because the two are interrelated.

There is an application for 97 sets of documents and in general they set out what we should call in England all the relevant statutory rules and orders, that is, the subsidiary legislation made with regard to the activities of this defendant. Frankly, I must say to the Tribunal that I have not had the opportunity of reading the original orders. I have read only the summary which Dr. Servatius has been good enough to provide in his application. But, quite clearly, these documents cover again in the greatest detail the various problems with which the respective sets of witnesses to be called deal, and, in the submission of the Prosecution, they provide a good reason and a fair ground for some considerable limitation of the oral witnesses.

There are certain of the documents to which my colleagues and myself take considerable objection, and I might just state two or three of these.

Number 45 deals with the Reich law for sanitary meat inspection, and is presented to prove especially that the German civilian population also received meat graded as inferior, which therefore could not be considered inedible meat. If one has not the comparison of the caloric and other properties of the meat, it is going to be extremely difficult to get any benefit from the evidence, if one is going into that. It is unreasonably detailed for the inquiries before the Tribunal.

If the Tribunal would then turn to Numbers 80 and 81; Dr. Servatius wishes to prove certain Soviet orders, apparently for the purpose of showing that the Soviet methods of mobilization were contrary to the Hague convention and are therefore evidence that the Hague Convention had become obsolete. I submit that the two small examples of this evidence indicate that there would have to be extensive examination of the facts surrounding them and they could not be the basis of a sound argument that a convention had been abrogated. It is possible that in rare cases international agreements may be abrogated by conquest. But evidence of that kind would, in my respectful submission, not be the basis of such an argument.

Then come Numbers 90 and 91, which are files of affidavits. There again it is very difficult, without serious and prolonged consideration of the circumstances under which each affidavit was made, to assess the values of bundles of affidavits of that kind.

Number 92 is a film of foreign workers, and I suggest that it would be reasonable if the representatives of the Prosecution were shown that film first, before it is shown in court—I think that was the course that was taken with regard to the concentration camp film—because, of course, without going into arguments at the moment, the question of propaganda is a serious one which the Prosecution are bound to consider. I have expressly refrained from further comment, but I think the Tribunal will see the point that is in my mind, and will, I hope, consider that it is reasonable that we should see the film before we are asked to comment on it further.

I have taken only certain examples in the documents because obviously they will have to be considered in detail when we see the text, and the Prosecution have to reserve their rights as to objection. But I make the general point—and I hope the Tribunal will think that it is a fair point, and I hope Dr. Servatius will not think that I am decrying his work; I am emphasizing the industry and care which he has shown in doing it—that with this immense body of documentation the witnesses in this case will want careful pruning. That, as I have said, indicates our general view.

THE PRESIDENT: Before you deal with what Sir David said, Dr. Servatius, I ought to say, for the information of other defendants’ counsel and other persons concerned, that the Tribunal proposes to adjourn today at 4 o’clock instead of 5 o’clock.

Sir David, I wanted to ask you: Throughout the discussion I think you referred to affidavits. Did you mean to particularize an affidavit as opposed to an interrogatory?

SIR DAVID MAXWELL-FYFE: No, My Lord. I did not. I am sorry. I really have not made that distinction. It is written evidence that I wish to refer to, either by affidavit or interrogatory, whichever Dr. Servatius wishes to have.

THE PRESIDENT: And one other question: In view of what you have said about the documents, would it not be a good thing for the Prosecution to have a little more time to consider the documents? And then perhaps they could give more help as to their view about the documents.

SIR DAVID MAXWELL-FYFE: That would be so, My Lord, but Your Lordship will appreciate that we have been under considerable pressure in the last few weeks and it is impossible to cover them all, but we should be glad of a little time to go into the documents.

THE PRESIDENT: Perhaps you could see Dr. Servatius about them after the adjournment some time.

SIR DAVID MAXWELL-FYFE: Yes.

THE PRESIDENT: And in the course of a day or two, let us know.

SIR DAVID MAXWELL-FYFE: Yes, we could do that.

THE PRESIDENT; Now, Dr. Servatius, will you deal with the witnesses?

DR. SERVATIUS: Witness Number 1, Ambassador Abetz. I name this witness to show Sauckel’s subjective conception of the admissibility of the Arbeitseinsatz from the point of view of international law. On the basis of the treaties, and in the absence of any protest from the governments of other countries—notably France—he was entitled to assume that it was legitimate. I am, however, willing to admit the witness Stothfang, who as Sauckel’s deputy repeatedly negotiated with Laval. If he is admitted, I would renounce the witness Abetz. In other words, I am to forego witness Number 1 if I am permitted witness Number 9.

THE PRESIDENT: Yes, I see. What about witnesses 2 to 8?

DR. SERVATIUS: Witnesses from Sauckel’s staff. It is difficult to dispense with any witness; and one witness is absolutely necessary for the graphic illustration of the way in which orders were carried out in practice. The Tribunal would find it very difficult to read through this enormous number of laws, and it is easier to hear witnesses on the essential points than to undertake the amount of reading involved. The witness Timm is the most important, as for all practical purposes he was in charge of the so-called Europa Amt which was responsible for the actual distribution of the labor forces.

THE PRESIDENT: One moment, Dr. Servatius. First of all, you will, no doubt, be calling the Defendant Sauckel himself?

DR. SERVATIUS: Yes, I should like to call him last, for he is a defendant and his statements are less valuable than that of a witness.

THE PRESIDENT: These witnesses will be corroborating his evidence about his administration. Under those circumstances, would not two of them, as Sir David suggested, out of eight, and two more affidavits be sufficient?

DR. SERVATIUS: From a legal point of view, the witness Beisiegel can be dispensed with, but the other witnesses are necessary because they have actual knowledge of the use of manpower abroad. So far, I have only one witness who can really speak on the use of manpower in the East. This witness should be able to describe the actual procedure followed; for laws have little meaning in themselves, if we do not know how they were applied. For the East, we have the witness Letsch—a highly important witness—and for the West, the witness Hildebrandt, who can testify how conditions gradually changed in France in consequence of the resistance movement.

The witness Kaestner could not be found, and I will dispense with him.

Witness Number 7, Dr. Geissler, is of the greatest importance because he can testify regarding inspections. The main point is at what period these workers were employed and what provision was made by Sauckel for their well-being in Germany. To ensure that Sauckel’s regulations—which, I maintain, were models of their kind—were actually put into practice, a series of inspectorates existed. Witness Number 7, Geissler, was in charge of the Reich inspectorate, a branch established by Sauckel. I consider him indispensable.

THE PRESIDENT: Why are not Number 3 and Number 8 cumulative?

DR. SERVATIUS: I named Number 8 in order to give special emphasis to the wage question. So far the Prosecution have not treated individual points in any very great detail. Otherwise I should find myself in difficulties owing to lack of evidence when the emphasis is transferred later to the question of wages. Only witness Number 8 can testify to this question. Witness Number 3 can testify regarding the regulations generally and in particular that Sauckel constantly improved conditions to the last, so that the situation of all foreign workers was considerably improved by legislation and continued to improve. This can be seen from all the regulations, which I have carefully collected for the purpose.

Witness Number 9, Dr. Stothfang, was Sauckel’s consultant, his personal adviser, and conducted many negotiations, particularly with France. For this reason I have named him as a substitute for witness Number 1, Abetz. In particular he conducted negotiations over the restrictions of the so-called Weisungsrecht, the restriction, that is, Sauckel’s right to recruit workers. From the very start of Sauckel’s activities, it was clear that no official administering a zone would tolerate interference of this kind on Sauckel’s part, that from a practical point of view it was impossible to tolerate it and his powers were promptly curtailed through parleys. Witness Stothfang will testify on that subject.

THE PRESIDENT: Why are 9 and 10 not cumulative?

DR. SERVATIUS: I will forego Number 10. I wish to say something on a rather different subject.

THE PRESIDENT: Yes.

DR. SERVATIUS: Witness Number 11 knows the conditions. He was the press expert, and if I must forego any witness, I would dispense with him rather than anyone else. He really does know, however, exactly what conditions were like. He wrote the book Europa Works in Germany and made the film, and can say that these pictures were not faked but are genuine photographs. For this reason he is important, as his testimony is supplementary to the book and the film.

The next witnesses belong to the Labor Front. The Labor Front was responsible for the welfare of all foreign workers, as well as for that of German workers. The situation never changed in that respect; and the witnesses can testify now to the way in which the regulations were carried out in different cases, with regard to the construction of the camps, supplies, clothing, and everything else that took place.

Witness Number 13 would be the most important witness, but he has not been found. For this reason I attach special importance to witness Number 14, who worked with him. The witness Hoffmann was practically in charge and knows what conditions were in the camps.

Those were the witnesses who worked with Sauckel in liaison with the Labor Front. The other witnesses will testify as to the practical work done by the workers themselves.

The situation is this: Dr. Ley no longer appears here, so that the whole of Ley’s field now becomes part of the case against Sauckel and forms a further charge against Sauckel unless the question is clarified. There are a good many charges and they must be clarified.

THE PRESIDENT: What is the difference between 15 and 16?

DR. SERVATIUS: 15 is a stenographer’s error; 15 is identical with witness 12. Witness 16, Mende, of the head office is particularly important because he had to look after the organizations within the Labor Front.

THE PRESIDENT: You mean 15 comes out, does it?

DR. SERVATIUS: Yes, 15 comes out.

THE PRESIDENT: Yes.

DR. SERVATIUS: Witness 17, Dr. Hupfauer, can testify as to the origin of the code of regulations in general and about the direction in which Sauckel worked.

THE PRESIDENT: Why is not he cumulative with Number 14, whom you wanted to have instead of 13? The charge of inhumanity applies to both of them.

DR. SERVATIUS: Because witness 14 deals with the practical side, and witness 17 deals with the legislative side. Witness 18 was responsible for the practical application within the Labor Front. One must keep these various fields distinct from each other. Sauckel had a small office, which was incorporated into the Ministry of Labor. He issued regulations with the aim of steadily improving matters. I offer evidence that they were of social value and will prove on investigation to be irreproachable.

We then have to consider the other side of the question—the practical application, for which the Labor Front was responsible; and the recruitment. I have special witnesses to deal with these heads as well.

The next witnesses are members of Sauckel’s specialist staff. Witness 19, Bank Director Goetz, can testify that billions of marks were transferred to foreign countries for workers’ wages.

Witness 20, Beckurtz, was manager of the Gustloff works and one of Sauckel’s closest collaborators. He will confirm that the treatment and housing of workers in this very Gustloff factory was exemplary.

Witness 21 will testify as to the degree of authority exercised by Ley and Sauckel respectively. It is of great importance to know whether Sauckel himself was responsible or whether some other office was in charge of the practical side.

THE PRESIDENT: Why cannot this be dealt with by an affidavit or interrogatories?

DR. SERVATIUS: I shall be satisfied here with an affidavit. I have not yet spoken to the witness personally and for that reason I had to list him as a witness.

Witness 22, Reich Minister for Food and Agriculture. He will testify that from the moment Sauckel took up his appointment, he made every effort to improve conditions for foreign workers and that he continued to pay special attention to this point. That is of particular importance in view of the accusation that the foreign workers had been starved. Through it I shall be able to adduce evidence that the foreign workers were in part—I say in part—better off than German workers.

Witness 23. . .

THE PRESIDENT: He has already been granted to another defendant.

DR. SERVATIUS: Oh, I see. Then I can forego him.

The next witness has not yet been found. He will testify regarding the exchange of prisoners of war for French workers. I understand that Reich Minister Lammers has already been approved for other defendants.

Witnesses 26 and 27 are important because they can furnish information on the way in which workers were recruited in the Eastern territories. They can testify to the extent of Sauckel’s powers, whether they were executive or otherwise, to the authority given to the police, and to what extent the organization was distinct from the SS. Witness 26 has not been found. Consequently, I shall have to confine myself to witness Number 27, Governor Fischer, who has been found and approved.

THE PRESIDENT: What about an affidavit for 27?

DR. SERVATIUS: I do not consider that I can forego calling him as a witness. It is of the utmost importance to have a witness who can say what conditions in the East actually were.

Witness 28, Dr. Jäger. We have a detailed affidavit, but it is extremely inaccurate. It has been submitted as Document Number D-288, Exhibit Number USA-202. I have also received the German translation.

THE PRESIDENT: Dr. Servatius, was it not the proper course to cross-examine Dr. Jäger when his affidavit was read?

DR. SERVATIUS: I assumed that it was accurate, as at that time I was not acquainted with conditions in the district in question. I have since made inquiries and can bring evidence to show that his statements were not only very much exaggerated, but in many cases actually false. The truth emerged by degrees on studying in detail some half dozen sworn statements which I obtained. Krupp had 60 camps. The witness deals with three or four of them at a time when the aerial war was at its peak—a fact which he does not mention. I do not anticipate much difficulty in proving his statements incorrect. I should like to reserve the right to submit further affidavits with which the witness can be confronted if he appears here in person, I also made an application, which has not yet been granted, for leave to make use of a number of medical reports made in these very factories, which in themselves prove that Dr. Jäger’s testimony is inaccurate. My chief difficulty was to obtain possession of this evidence, hence the delay. Otherwise I should have submitted it sooner. I attach great importance to Dr. Jäger as a witness.

The next witnesses, Dr. Voss and Dr. Scharmann, will testify on the same subject, but each in connection with a different area. They have attended the camps as doctors and can testify that the conditions there were irreproachable and good. I could name many such doctors if I had the time and opportunity to look them up. I know both of these and they will confirm what conditions were really like.

THE PRESIDENT: If that is so, why can they not both give an affidavit about it?

DR. SERVATIUS: They are in a camp. It is difficult for me to contact them; it would be easier to bring the witnesses here. Perhaps Dr. Voss can appear here so that one of the witnesses can be heard.

The next three witnesses are named for this purpose.

SIR DAVID MAXWELL-FYFE: My Lord, since I gave the explanation, I have had a chance of comparing the English text with the French text, and it would appear that an error has crept into the English text, which says:

“He seemed to be impressed and he gave an explanation of the gravity of the communication Shiedlauski had given. Shiedlauski had given an order that no prisoner should remain in Buchenwald.”

The French text is, if I may translate it:

“He seemed very embarrassed and an explanation was given. The Governor of Thuringia, Sauckel, had given the order that none of the detained persons should remain at Buchenwald.”

So that apparently when I told the Tribunal that we could not find this reference, I was dealing with the English text, and it appears that there was such a reference in the French text. Since M. Dubost was calling the witness, the probability is that the French text is right, and as there is evidence that Sauckel had given this order, I think it is only fair that I should say that one witness should be permitted to deal with this point in the view of the Prosecution; it is, of course, a matter for the Tribunal.

DR. SERVATIUS: I agree with the Prosecutor and need only one of the three witnesses. Should none of the witnesses be found, I have in the document book an affidavit of one of Sauckel’s sons who was also present at the conference.

Witness 34, Skorzeny, will testify to the general connection between the Gauleitung and the concentration camps; in other words, to what extent the Gauleitung, by virtue of its official position, had knowledge of what went on in the concentration camps.

Witness 35, Reich Treasurer of the NSDAP, Schwarz. This question has been settled. I have received my interrogatory with the answers.

Witness 36, Frau Sauckel, was previously approved by the Tribunal. I can see that certain objections might be raised but the essential point is this: Among other things, the witness repeatedly heard that the Defendant Sauckel was criticized for treating foreign workers too well and for manifesting an international rather than a nationalistic attitude. That is one point. The other point is that which concerns the conspiracy, namely, that Sauckel kept aloof and had very little intercourse with other members of the Party. He worked consequently on his own and knew very little about major developments in policy.

That concludes my remarks on the list of witnesses.

THE PRESIDENT: Dr. Servatius, you probably realize that you have asked for a very much larger number of witnesses than other counsel and I have, therefore, to ask you whom you regard as the most important witnesses. It may be that it will be necessary to limit the number, as you are aware that we are directed to hold an expeditious trial, and so would you kindly give me the list of those witnesses whom you regard as the most essential.

DR. SERVATIUS: If I have time till tomorrow to think it over, I shall try to reduce the number. It is difficult because the field is so large. Also I did not receive a trial brief for Sauckel defining charges in detail, so that I must be prepared for all eventualities. I must define my position with regard to many points: food, wages, leave, workers, transport, illness and there are many aspects to which I must refer.

THE PRESIDENT: You will not forget that many of the defendants are concerned in various aspects and they have neither asked for nor been allowed this very large number of witnesses.

DR. SERVATIUS: May I turn to the documents now?

THE PRESIDENT: Well, I rather thought that perhaps Sir David was going to get in touch with you after the adjournment and perhaps you could then deal with the documents more successfully.

SIR DAVID MAXWELL-FYFE: I think that would be time usefully spent, My Lord, if the Tribunal would allow it.

THE PRESIDENT: Yes.

I call on Dr. Exner on behalf of the Defendant Jodl.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Exner and Professor Jahrreiss were good enough to approach the Prosecution on this matter and put forward certain considerations, including the names of the witnesses to whom they attached the greatest importance, and over a considerable part of the field there is no difference between us. On certain matters there is a difference of principle, which I shall point out to the Tribunal in a moment, but the effect is, if I might run through the application, that the Prosecution will not offer any objections to General Winter, who speaks as to the organization of the OKW and the respective duties of the Defendants Keitel and Jodl. They will not offer objections to Major Professor Schramm, although the need for his evidence is perhaps not so obvious. On the other hand, with regard to Number 3, the evidence of Major Kipp, that the fettering or chaining of prisoners took place at Dieppe and as to the cause of the shooting-of-Commandos order, the Prosecution submit that these matters are irrelevant. With regard to Major Büchs, Dr. Exner tells me that he will be satisfied with interrogatories. The Prosecution do not object.

With regard to Number 5, General Von Buttlar, Professor Exner suggests that he should be a witness, and the Prosecution do not object.

With regard to Number 6, the Prosecution are content that there should be interrogatories.

With regard to Vice Admiral Bürckner, the Prosecution are prepared to take no objection.

Then with regard to Number 8, General Buhle, a questionnaire has been sent off.

With regard to Number 9, it is suggested that there should be interrogatories.

Number 10, interrogatories.

With reference to Numbers 11 to 21, the Tribunal has allowed an interrogation in each case, and in many cases a questionnaire has been sent off, and therefore the Prosecution could not object at this stage when action has been taken on the Tribunal’s suggestion. That would mean that the Defendant Jodl would have four oral witnesses, apart from the interrogatories which have already been largely approved by the Tribunal. The objection of the Prosecution to Number 3 is maintained.

DR. EXNER: I should like, first of all, to mention Number 3, Kipp. The Prosecution have its objections to this witness. We need him to give information as to how the Hitler order of 18 October 1942, that is, the Hitler order regarding Commandos, originated. This order has been made the basis of a highly incriminating charge against Jodl and it is of great importance to hear how this order came to be given. It concerns the killing of Commandos dropped by planes or landed from boats. As I understand it, the objection to this witness and this subject generally is that it appears to concern for the most part the events of Dieppe, in consequence of which this order was admittedly issued. But we are not concerned with an exact portrayal of what actually happened at Dieppe. The witness Kipp is, in any case, unable to do so, since he was in the OKW and was not a witness of those events. We are concerned with something else, namely, the fact that certain reports were presented to the OKW which caused this order to be made. We are furthermore concerned with the following facts to which Kipp is in a position to testify.

When these reports about the events at Dieppe arrived, the Führer was enraged and ordered strict measures to be taken against these Commandos. Jodl refused to issue or draft the order as demanded by the Führer. When pressed, he said he did not know what reason he could give for that order.

Jodl then passed the matter to Major Kipp for investigation, as it was peculiarly complicated from a legal point of view and Kipp, being a professor of law, should know something about legal matters.

In addition, a kind of poll was held in Jodl’s office in the Wehrmacht Operations Staff and the opinions of other offices on the matter in question were collected. Varying opinions were received from the Ausland Abwehr, the legal department, et cetera. As in the meantime 10 days had passed, Hitler lost patience, sat down and drew up the entire order himself, as well as a further decree, establishing the reasons for the order. Jodl, therefore, was not the author of this order. All that he did was to express his doubts regarding it. The story of the origin of the order of 28 October 1942, which, as I have said, has been made the basis of a grave accusation against Jodl, is of the utmost importance. Kipp will testify to it. Further, it has already been said that there is no objection to witness Number 5, Buttlar.

As to Number 4, I am satisfied with an affidavit or an interrogatory, but I must reserve the right to call him as a witness, should the interrogatory be inadequate or not clear. I hope, however, that this can be avoided.

Regarding witness Number 7, Vice Admiral Gottlieb Bürckner, I should like to point out that he is the same Admiral Bürckner who was the subject of discussion this morning in connection with the witnesses for the Defendant Raeder. Perhaps that will clear up the difficulty about Raeder.

Regarding Number 8, the interrogatory has already been sent out. We have, however, distinctly, reserved the right to resort to oral testimony should the interrogatory again prove unsatisfactory. Otherwise, I have nothing further to say on the subject and the Prosecution has no grounds for protest.

I have just received a note saying I was relying on the appearance of Büchs as a witness and therefore why did I not ask for him. This is on behalf of Göring, is it not? I shall have to leave the decision to the Tribunal. I had in fact intended to call Büchs as a witness and I only agreed to forego his personal appearance in the course of the discussion.

THE PRESIDENT: Which witness were you talking about?

DR. EXNER: Witness Number 4.

THE PRESIDENT: Do you say you are asking for him as an oral witness?

DR. EXNER: Göring has also asked for him as a witness.

THE PRESIDENT: Has he been allowed to the Defendant Göring?

DR. EXNER: He had counted on my calling him as a witness, on his being allowed and on being able to question him. He is here in Nuremberg. May I now turn to the documents?

THE PRESIDENT: Yes.

DR. EXNER: Regarding Points 1 and 4, the Prosecution has no objections. I take this to mean that I put into my document book an extract of the part I read. I submit the entire document to the Tribunal without a translation of anything except the part which I am going to read; and which deals with an important point which must be clarified. If I am dealing with a large document and I need to quote only one paragraph, it is sufficient if I submit the original document to the Tribunal in its entirety and include in my document book only the particular paragraph in question and its translation.

THE PRESIDENT: That is right.

DR. EXNER: Regarding Points 5 and 6, the Prosecution objects and I withdraw these two documents.

Point 7 is a curious one. That is Document Number 532-PS, submitted by the Prosecution and to which I made objection at the time. The document was removed from the record, and now I myself apply for this document to be submitted again. This is for the following reason: The document is an order that was submitted to Jodl in draft form. Jodl did not approve it, crossed it out, and sent it back without signing it. This draft was submitted by the Prosecution, and I objected to its being presented as if it were actually an order signed by Jodl. I want to submit it now in order to prove that Jodl, by making it impossible for this order to be carried out, deprived an illegal order of its effectiveness.

Regarding Points 8 to 15, the Prosecution also has no objection.

SIR DAVID MAXWELL-FYFE: Points 16 and 17 are the subjects of objection from the Prosecution. Point 16 relates to the English “Close Combat Regulations” of the year 1942, and 17 is the English order for the Operation Dieppe of the same year. With regard to the “Close Combat Regulations,” the only relevance they could seem to have would be in relation to an objection to this form of training, and in the submission of the Prosecution it would be irrelevant on the question of the Commando order.

With regard to the question of shackling, I think the simplest way of dealing with it is to point out that the Prosecution, as my friend Mr. Dodd pointed out, have not introduced that matter into their case, and therefore it would appear that, the English order in question was not relevant. Apart from the two general objections, neither of these matters seems connected with points in the case.

I might just indicate Number 20, which is another objection that is on the same basis as the old document, which I think the Tribunal has had before—the implication of the German Foreign Office on breaches of international law, and it is sought for, as the Tribunal will see, as evidence of the reports that were made to the High Command of the Wehrmacht, and that gave occasion to take reprisal measures.

Then a similar ground of objection applies to Number 21, a history of the White Russian partisan war, which is sought for as evidence that the danger of bandit warfare gave cause for undertaking sweeping countermeasures.

These objections can be all grouped together. They fall under the general objection to tu quoque evidence which the Prosecution has maintained throughout the Trial.

DR. EXNER: May I say something about this? As far as 16 and 17 are concerned, we just want to see these documents. We want to see them first in order to judge whether or not we want to submit them in evidence. I have stated so at the foot of the page.

As to irrelevance, we do not say that we regard these orders as illegal. But if for instance, in the “Close Combat Regulations,” English soldiers are ordered to perform actions for which our soldiers are censured, it would constitute a discrepancy of some importance. For in that case it would be obvious that the British Government regarded such methods of warfare as legitimate. If, however, such methods are legitimate for them, they must also be legitimate in our case, since it is impossible to have two standards in these matters. In order to establish this, we wanted to see these “Close Combat Regulations.” That is Number 18.

Number 19 is a similar case, but I can more readily understand that that was refused, as it may be a secret order. Number 20, the White Book. . .

THE PRESIDENT: Sir David did not deal with 19, did he? He only dealt with 16, 17, 20, and 21.

DR. EXNER: Yes. 18 and 19 have not been objected to.

THE PRESIDENT: As I understood it, his objection to 16 and 17 was that there was no complaint against the German forces, either with the reference to close combat or with reference to shackling, in the Indictment.

DR. EXNER: If these “Close Combat Regulations” should happen to include illustrations—there are actually pictures in there—of the shackling of prisoners and orders for doing so, one would be obliged to say that the British Government does not consider this kind of treatment illegal and that if it happens on our side we cannot be censured for it. It is difficult for me to estimate their importance to us, because I have not had these “Close Combat Regulations” in my own hands. If I had them, I could make my application. I should like to know whether I have to include them in my evidence or whether there is no need.

No objection has been raised to 18 and 19. As to 20, these are the White Books already approved for Göring. Consequently, I need not ask for them myself.

Regarding Point 21, I am convinced that this cannot be settled with a charge of tu quoque. It is a Russian book, describing partisan warfare. The author of this book is a Russian who, himself, participated in partisan warfare for several years as chief of staff and he writes from personal experience.

We do not assert that the Russians did the same as we did, which would be a tu quoque argument; I should like to have this book for another reason. To understand and appreciate our regulations regarding partisans, one must know these partisans. One must have knowledge and experience of their methods, and be able to appreciate the danger which they represented. This Russian book describes all that, and is therefore important. The author himself, as stated, played an active part in the warfare carried on against the partisans.

In the Indictment it is stated, “The war against the partisans was simply an excuse for the annihilation of Jews, Slavs, and so on.” This book shows that the war against the partisans was a real war and not an excuse on our part.

If the book is unobtainable, I ask permission to read the short account of the contents recently published in The Stars and Stripes. To conclude, it should be emphasized that the book was written by a Soviet Russian and for this reason cannot be assumed to have an anti-Russian bias.

Therewith I have concluded my presentation.

THE PRESIDENT: Sir David, the Tribunal would like to know what your argument is with reference to 21.

SIR DAVID MAXWELL-FYFE: I was opposing it for the reason that was given. The book is asked for as evidence that the danger of bandit warfare gave rise to undertaking sweeping countermeasures.

Now, broadly, the case for the Prosecution is that the countermeasures against partisans constituted atrocities, and evidence of that kind has been given. It is, in my submission, no defense to the committing of atrocities against partisans, of the kind given in evidence, that their warfare was of a great extent or very fiercely or bravely waged. This is just the tu quoque argument in its nakedness—because partisans fight you, therefore you can burn their villages, shoot their women, and kill their children. That is the argument which we say is irrelevant and is inadmissible.

My Lord, I should like to say that I have no objection, if any of these documents can be obtained, to Dr. Exner’s looking at the documents; on that point to which the Prosecution attached importance, I thought it right—and I know my colleagues desired it—that I should make our position clear.

THE PRESIDENT: That concludes your address, Dr. Exner, does it?

DR. EXNER: May I add something concerning the last point. I am, of course, perfectly aware that those atrocities, as described here, cannot be justified by the activities of the partisans, but the more violent the actions of the partisans became, the harsher—of necessity—were the German military countermeasures, so that there is, after all, a connection between these matters.

THE PRESIDENT: The Tribunal will consider your argument.

The Tribunal will now adjourn.

[The Tribunal adjourned until 7 March 1946 at 1000 hours.]

SEVENTY-SIXTH DAY Thursday, 7 March 1946

Morning Session

THE PRESIDENT: I call on counsel for the Defendant Von Papen.

SIR DAVID MAXWELL-FYFE: If the Tribunal approves, I shall indicate the views of the Prosecution on the witnesses requested by Dr. Kubuschok.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL-FYFE: The first witness is Von Lersner and there is no objection. This witness is called to cover, among other things, the period of the coming into power of the Hitler Government, which is a time of material importance in the case against Von Papen.

If the Tribunal would consider the next three witnesses, there is a minor point: The witness Tschirschky was, as I understand it, Von Papen’s private secretary from 1933 to February 1935. That is, he covered the period of the rise to power of the Nazi Party. And he also covers some of the Austrian period.

The next witness, Von Kageneck, is also a private secretary. He does not cover the period of the rise to power, but covers the whole Austrian period.

The next witness, Erbach, was counsellor at the Embassy in Vienna, that is, he covers the period 1934 to 1938.

The Prosecution has always been reluctant to oppose the calling of secretaries who could assist the memory of the defendant, but it did seem to us that the witness Tschirschky was cumulative both on the period of the rise to power and the Austrian period and that it would be sufficient to have interrogatories in that case. Therefore, the Prosecution, apart from that, would not object to Von Kageneck and Erbach.

THE PRESIDENT: That is, you suggest interrogatories for 2 and calling 3 and 4?

SIR DAVID MAXWELL-FYFE: Yes, My Lord, interrogatories, and calling of 3 and 4.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: And with regard to Number 5, the witness Kroll, the Prosecution submits that he is irrelevant. He is called for the period when the defendant was an ambassador in Turkey and he allegedly is able to say that Von Papen had no aggressive thoughts with regard to Russia. The Prosecution would submit that Von Papen is really the person who can speak on a matter like that, and the Prosecution has had no evidence as to any subversive activity of the Nazi Party in Turkey; which is the other point that this witness is said to speak on.

Then the next five witnesses, 6, 7, 8, 9, and 10: The Tribunal granted interrogatories and, so long as the matter is limited to interrogatories, the Prosecution will make no objection.

And Number 11, the Baroness De Nothomb: The Prosecution object to evidence on acts of intercession on behalf of members of the resistance movement, and individual acts of that kind, in the opinion of the Prosecution, are not really relevant to the matters before the Court.

With regard to Archbishop Gröber, if the Tribunal would not mind looking at Number 12 in the application, in the opinion of the Prosecution the matters raised by the questions are not relevant. The first is, “Were the Concordat negotiations between Germany and the Holy See brought about by Defendant Von Papen’s own initiative?” The second part of this question is, in short, “Did Von Papen make efforts with Hitler regarding the conclusion of the Concordat?” Well, the Concordat was made, and what the Tribunal are really concerned with is the breaches of the Concordat, of which the Prosecution has given written evidence.

The second question—I am afraid that I do not understand that, and in its present form I submit that it is irrelevant, in addition to being vague—“Were the activities of the defendant directed by his positive religious attitude after the conclusion of the Concordat also?”

Then the third question: “Was the conclusion of the Concordat welcomed by the German Episcopate?” I don’t think that really helps.

And fourth: “Did the Concordat give legal backing to the Church during the latter’s religious struggles?” And, “Could the Church, in the end, fall back on the Concordat?”

The Concordat is there and speaks for itself, and, as I say, the issue in this case is the breaches of the Concordat, not its contents. So we object to Number 12.

Number 13, the witness Von Beaulieu—that is very short, if the Tribunal would be good enough to look at it:

“I shall submit an affidavit of the witness, which deals with the intervention of the defendant as President of the Union Club on behalf of Jews.”

The Prosecution submit that the intervention in a racing club on behalf of some Jewish members is not really a relevant matter, even on the Jewish issue.

Number 14, the witness Josten—Dr. Kubuschok asks for the use of a statement which has been sent to the Tribunal. The Prosecution would prefer that to be in the form of an affidavit or interrogatory, if this is possible.

THE PRESIDENT: That is 14, is it?

SIR DAVID MAXWELL-FYFE: 14, My Lord, yes.

Then 15 is His Majesty, the King of Sweden. That is a new application and general in its scope. It is difficult to judge how much King Gustav could contribute, and, therefore, the Prosecution do not object to interrogatories.

THE PRESIDENT: Sir David, in 14 Dr. Kubuschok says that he requested that the statement made by the witness to the legal department of the Military Government headquarters, Düsseldorf, be furnished him. Are you objecting to that being furnished him?

SIR DAVID MAXWELL-FYFE: No, I thought that he had got it.

DR. KUBUSCHOK: I got it this morning.

SIR DAVID MAXWELL-FYFE: Dr. Kubuschok says that he received it today, this morning.

THE PRESIDENT: Are you objecting to his offering it as evidence?

SIR DAVID MAXWELL-FYFE: No, I only say that we should prefer it in the form of an affidavit or interrogatory, if that can be done. I do not make any great objection.

DR. KUBUSCHOK: In regard to the witnesses I should like to say the following: Witness Number 1, Baron Lersner—the Tribunal granted only an interrogatory at first. The prosecutor has today agreed to have the witness called before this Tribunal. I also ask very urgently that this witness be questioned before the Tribunal.

The witness was the president of the German peace delegation at Versailles. He is a very well known German diplomat, who since 1932 has worked very closely with the Defendant Von Papen. A man like Lersner had, of course, a particularly fine understanding for every policy of aggression. Therefore, it is very important that this co-worker of the Defendant Von Papen be heard and be allowed to tell us how he has observed the defendant in his activities up to 1944. It is particularly important that Lersner, at the instigation of Defendant Von Papen, could go to Turkey.

THE PRESIDENT: Dr. Kubuschok, Sir David agreed, I think, with reference to Number 1.

DR. KUBUSCHOK: Yes, if the Tribunal also agrees, then the matter is taken care of.

The second witness, Tschirschky—Tschirschky was the private secretary of the defendant from 1933 to 1935, the first private secretary during the time that the defendant was Vice Chancellor. He is a man who was himself persecuted by the Gestapo and had to go into exile in 1935, where he still is. He is a man who can give exhaustive information on the whole period from 1933 to 1935 in regard to the external activity of the defendant and his personal attitude.

I believe that, especially for the time from the beginning of 1933, we shall not get a thorough picture if we do not hear this closest co-worker of the defendant personally. The other witnesses concern mostly different periods. Only in some cases do they overlap with the activity of this witness.

Number 5, Kroll. . .

THE PRESIDENT: Supposing that the Tribunal thought it right to grant you Number 2 as an oral witness, would it not be possible to dispense with one of 3 or 4 and have interrogatories from one of them and call the other one? They deal with somewhat the same period.

DR. KUBUSCHOK: We definitely need 3 for the following reasons:

Witness Kageneck was present when Hitler entrusted Papen with the Austrian mission. This is a very important point, since the Prosecution alleges that he was entrusted with this mission for those purposes of which he was accused. The witness will testify that Papen accepted the mission only after a clear guarantee concerning the purpose of the mission. Furthermore, Count Kageneck was also in Vienna after 1935, that is to say, from 1935 until the Anschluss, and for this period we should not have any other witness. Kageneck can also confirm a very important point, that is, that he was entrusted with taking diplomatic documents to Switzerland and safeguarding them there, since from these documents the documentary proof for the activity of the defendant in Vienna could be deduced. Therefore, in my opinion, the witness Kageneck also cannot be dispensed with.

If we can dispense with any witness, it would be witness Number 4, Erbach, in regard to whom I might then ask for permission to use an interrogatory, because here, too, questions are to be asked which the other witnesses cannot answer.

Witness Number 5, Minister Kroll—Papen is accused of a conspiracy for aggressive war. The Indictment is not limited in respect to time. For the largest part of the time in question, namely 1938 to 1944, Papen was in a position which would have been particularly designed for an activity directed at undermining the peace. Turkey was for a long time an important pillar in military and, therefore, political considerations. It is, therefore, of the greatest interest whether Papen used his position for any activity in the nature of such a conspiracy.

Moreover, I should like to bring proof of the opposite. The fact was that his activity was directed at preserving the peace and that he was, in particular, against any extension of the war by means of military measures against Russia, and was against every political measure for the destruction of the relations between Turkey and the Allied Powers.

The witness was, during the Turkish period, the closest co-worker of the defendant. He is, therefore, in a position to give us information about the entire period.

Baroness De Nothomb—I have asked in this case to be permitted to present an affidavit or interrogatory. I want. . .

THE PRESIDENT: Which number are you dealing with?

DR. KUBUSCHOK: Number 11.

THE PRESIDENT: You are not dealing with 6 to 10?

DR. KUBUSCHOK: No, we are in agreement about 6 to 10.

THE PRESIDENT: Very well, 11.

DR. KUBUSCHOK: Number 11, Baroness De Nothomb—in this case I asked for an interrogatory or for permission to submit an affidavit. The subject of the evidence is:

During the years 1940 to 1944 the defendant continuously supported the witness in her intervention on behalf of persecuted members of the French resistance movement. I want thereby to prove that the Defendant Von Papen shows again, in this case, that he was greatly interested in a peaceful shaping of German-French relations, and that during the war he always had in mind the postwar time, when the poison should be removed from these relations. The intervention on the part of the defendant was also a result of general humanitarian considerations. This is not without considerable importance in connection with the charge of conspiratorial activity.

Number 12, Archbishop Gröber—the Indictment asserts that the Defendant Von Papen used his position as a prominent German Catholic for a dirty business of deception, and that the conclusion of the Concordat, as such, was effected in the course of a policy directed against the Church; that the conclusion of the Concordat was not intended seriously, as one could see from the later violations of the Concordat. Archbishop Gröber was, at the time of negotiations concerning the Concordat, at the Holy See. He was present during all the negotiations. He knows that the initiative for starting negotiations came from Von Papen himself, who did not get Hitler’s approval until later. He knows that the draft which had been made by Von Papen for the Concordat was strongly disapproved by Hitler and that Papen was able to advance this draft only after long struggles. The witness knows the Defendant Von Papen very well. He also knows from what inner stand toward the Catholic question the defendant approached the matter of the conclusion of the Concordat. As an influential dignitary of the Church he can also judge the consequences of the Concordat. He is in a position to judge that the contents of the Concordat at a later time also were still a protection for Church interests; and from his knowledge of the personal relations of the defendant and all the relations of the Church in Germany, he can testify as to whether the defendant had anything at all to do with the violations of the Concordat.

THE PRESIDENT: Dr. Kubuschok, does witness Number 2 deal with the same subject? Where you say in your discussion of the subject of the evidence, that witness Number 2 accompanied the defendant to Rome to conclude the Concordat—can he testify that against Hitler’s strong opposition he succeeded, at the last minute, in concluding the Concordat? At that time was the witness present at all the speeches?

DR. KUBUSCHOK: The witness Tschirschky was introduced into the negotiations concerning the Concordat by the defendant. It is very important, in my opinion, to examine also a witness who was present at the negotiations as representing the other side. In particular, this witness, Archbishop Gröber, could also express an opinion in regard to the later period, the violations of the Concordat. He can judge the entire situation from the point of the Church better than can the private secretary Tschirschky. He can also give an essentially more reliable picture of Von Papen’s personality, which in this matter is very closely connected with his political activity. I have been very modest in my requests; but I should like to ask urgently, in this case, that an interrogatory or an affidavit by Archbishop Gröber be granted, for it is indeed clear that the accusation that a prominent German Catholic uses his position for evil purposes of deception is a very serious one, and the defendant also is very greatly interested in having this question clarified, within the framework of the Indictment and also beyond that.

Witness Number 13—an affidavit of Herr Von Beaulieu, who shall testify that the defendant, in his position as president of a very large and prominent German organization, intervened until the very end for the non-Aryan members, as this term was used at that time. Everything which is of importance in judging the Papen case lies, for the most part, in the sphere of the subjective. We will see very few actual actions in the Papen case. The accusations are, for the most part, based on the fact that he was present. It is, therefore, relatively difficult to bring proof and therefore the counterevidence must to a large extent be subjective in nature. To judge a person’s character in its entirety, it is not unimportant to know what, for instance, his attitude was in 1938 toward the question of the treatment of Jews, for, if Papen here definitely deviated from a general line followed by Hitler and the Nazis, one will certainly be able to draw a conclusion as to whether he was really the faithful follower of Hitler which the Indictment tries to picture him.

Witness Number 14—I received the statement today. I have not yet had time to look through it. I shall submit either the statement or an affidavit which I shall try to get.

Number 15—a questioning of His Majesty King Gustav of Sweden, to be conducted in every way possible. This is a very important question. It touches a major point of the Defense, namely, in how far it was possible for a person not entangled in the ideas of Nazism to collaborate to a certain extent. To what extent could he hope, by his personal activity, to change things or at least to modify them? If, on the basis of the evidence submitted, we prove that Von Papen not only exhausted his means to serve this end within Germany, but also, beyond this, used his foreign political connections for this purpose, then this should, I believe, round out the picture of the character of the defendant in an important way. This strong activity in the interest of peace is such that, in my opinion, simply on the basis of such activities, the absolute falsehood and untenability of that charge of the Indictment that the defendant at any time could have approved of the aims of an aggressive policy within the framework of a conspiracy becomes apparent.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents, Numbers 1 to 8, the Prosecution asks Dr. Kubuschok to submit the extracts, and then we can consider the relevancy at that time. I think that Dr. Kubuschok has Number 9.

DR. KUBUSCHOK: I have in my possession only the photostat which I received from the Prosecution.

SIR DAVID MAXWELL-FYFE: I am sorry. I should have said he had a photostatic copy, but the Prosecution have certified the photostat. The original is not obtainable at present. If it comes into our possession we shall let Dr. Kubuschok see it.

The third point is that Dr. Kubuschok says that he may have to make a supplementary application after Herr Von Papen, Jr. returns. That is, of course, a matter for him and the Tribunal. The Prosecution make no objection.

THE PRESIDENT: With reference to 1 to 8, has Dr. Kubuschok got the books?

DR. KUBUSCHOK: Yes.

THE PRESIDENT: Very well. Then he will be prepared to specify what parts of them. . .

DR. KUBUSCHOK: Yes, Sir; yes, indeed. I should merely like to add one point to the list. Yesterday I received from the Prosecution a further report to Hitler by Von Papen at the time of his activity in Vienna—Number 9, also a report to Hitler. I have also received it in the form of a photostat. I shall also submit this report for purposes of evidence.

THE PRESIDENT: I call on counsel for the Defendant Seyss-Inquart.

SIR DAVID MAXWELL-FYFE: May we state our position?

May it please the Tribunal, with regard to this defendant, the position as to the first four witnesses is that they deal with the Austrian part of the case. On the 2d of December the Tribunal allowed this defendant a choice of four out of nine. He has chosen Glaise-Horstenau, who was a minister in the Austrian Government; Guido Schmidt, who was the Foreign Minister at the time of the Schuschnigg-Hitler-Ribbentrop interview; Skubl, who was the Police President and State Secretary for Security in Vienna; and Rainer, who is a well-known Nazi and who was afterwards Gauleiter of Carinthia.

The Prosecution have no objection to these witnesses.

Then we come to the Holland period, and the Prosecution have no objection to Wimmer and Schwebel, but they do object to Bolle’s being called as an oral witness. The position is that he was refused by the Tribunal on the 26th of January. After the refusal interrogatories were submitted, but these seem to be almost entirely covered by the interrogatories administered to the witness Von der Wense, who is the second under the heading of affidavits. I think out of the 20 questions suggested for Bolle, there are only two that are not covered by Von der Wense, which are Numbers 17 and 18, and two others which seem to deal with very obvious points. So that is the objection with regard to Bolle, and the Prosecution submit that he would really be cumulative and is unnecessary. They make no objection to Fischböck, who speaks on the Jews, financial administration, art treasures, and forced labor. They make no objection to Hirschfeld, who speaks about confiscations and destruction of factories and the food situation. So, on the oral witnesses, the only objection is regarding Bolle.

With regard to the affidavits there is no objection—or rather, they should be interrogatories. They were all granted by the Tribunal on the 26th of January, and under these circumstances the Prosecution make no objection to them.

THE PRESIDENT: Yes, Dr. Steinbauer.

DR. GUSTAV STEINBAUER (Counsel for Defendant Seyss-Inquart): Mr. President, Your Honors, my client, Dr. Seyss-Inquart, had at first asked for a large number of witnesses and then, at my advice, and according to the desire of the Tribunal, reduced this number considerably.

I ask that the witness, construction supervisor Bolle, be admitted before the Tribunal because in my opinion the objection made by the Prosecution, that this is a cumulative witness, is not quite correct. Bolle was, before the occupation, Director of the Port of Hamburg, and then during all the years of the occupation he was director of the transportation department in Holland.

In particular he can testify about the railroad and shipping strike in October 1944. This chapter of the history of the occupation is extraordinarily important, because this strike resulted in a blocking of traffic which led to an embargo. The Indictment asserts, moreover, that the causes of the later famine catastrophe in Holland, as we may call it, can in part be traced back to measures which the Defendant Seyss-Inquart took in October 1944. Quite understandably, the Armed Forces wanted to use the few means of transportation which were still functioning, for their own purposes. The very examination of the witness Bolle should prove, however, that Seyss-Inquart endeavored, insofar as possible, to mitigate the effects of the measures taken by the Wehrmacht in this matter. In an interrogatory this complex of questions could not be treated exhaustively.

I ask you, Gentlemen, to realize that we are dealing here with the examination of the administration of a kingdom of 9 million within a period of 5 years. If we read through the report submitted by the Dutch Delegation we see, in regard to the financial consequences, alone, that it is alleged that the damage, which had been brought about by the administration on the one hand and by the events of war on the other hand, in short, by the occupation of Holland by Germany, reaches a figure of 25,725,000,000 Dutch guilders, to which, considering the difference in prices between 1938 and now, we have to add a margin of 175 percent.

I wish to point out that we are dealing here with the examination of administrative, legal, financial, and economic measures over a period of 5 years. I therefore believe that the request of the defendant that this witness be admitted is quite justified.

Concerning the affidavits, I took the liberty of making two more applications which have not yet been granted. This is on the last page, a very short affidavit by Baron Lindhorst-Hormann. He was formerly Commissioner of the Province of Groningen and should in particular be examined in regard to one point, in regard to the treatment of the so-called hostages in the hostage camp, and also in regard to the fact that none of these hostages was shot.

In addition to getting this affidavit, I have also asked that some official announcements be obtained, announcements by the Higher Police and SS Leader Rauter regarding the executions in order to prove who had done these things, that is, that the point of view of the defendant is that these regrettable measures were taken by the police and not by the civil administration.

I also intend to submit two affidavits which are already in my possession. One of them is an affidavit by a German judge, Kammergerichtsrat Rudolf Fritsch. In Seyss-Inquart’s administration in Holland he was in charge of appeals. He can tell us how Seyss-Inquart handled this important chapter of jurisdiction.

Another affidavit which I have in my possession comes from a Dr. Walter Stricker. It is cited as Document Number 30. Dr. Walter Stricker was a lawyer in Vienna and emigrated in 1938 to Australia. He served in the Australian Army and, without my asking, he sent me an affidavit, notarized by an Australian notary public, in which he testifies about conditions in Vienna in the critical days of October and November 1938. I ask also that this affidavit be admitted. As to the documents, as I have already told Sir David, I shall submit an exact list.

THE PRESIDENT: One moment, before you deal with that. Sir David said that with reference to the affidavits, which are mentioned on Page 2, that these ought to be called interrogatories. I do not know whether you wish to ask particularly for affidavits, which are different from interrogatories.

DR. STEINBAUER: Yes, Sir.

THE PRESIDENT: You want affidavits?

DR. STEINBAUER: Interrogatories, Sir.

THE PRESIDENT: Would there be any objection to the affidavit from the lawyer in Australia being shown to the Prosecution, so that they may see whether they wish to put cross-interrogatories to that witness? Australia is too far away from here for him to be brought here for cross-examination.

DR. STEINBAUER: Certainly.

SIR DAVID MAXWELL-FYFE: I have just been handed that affidavit from the witness Stricker and also Number 6, on the Dutch questions, from Judge Fritsch; and if the same course could be taken with regard to that from Baron Lindhorst-Hormann, I shall be ready then to consider that, too.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: With regard to the rest of the documents in the usual course, I ask that the Defense make extracts and show them to us.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: There is one point I call to the attention of the Tribunal. It may be helpful that Number 28, Document Number D-571, is already in as Exhibit Number USA-112. I do not know if the Defense really wants Number 3. I shall not deal with it now, but the Prosecution will submit that it is really unnecessary and irrelevant, but I think that is a matter that we can more conveniently discuss when it comes up.

THE PRESIDENT: Yes. Then with reference to Number 2, under the heading concerning the Dutch question, will it be satisfactory if that is in the form of an affidavit and is submitted to you, so that you can put cross-interrogatories if you want to?

SIR DAVID MAXWELL-FYFE: That would be very satisfactory.

THE PRESIDENT: Dr. Steinbauer, have you got the affidavit mentioned in Paragraph 2 of the last heading?

DR. STEINBAUER: No, Sir; I have not received it yet. But I have requested that the Tribunal question the witness.

THE PRESIDENT: Could the interrogatories be in a more convenient form?

DR. STEINBAUER: Yes, Sir.

THE PRESIDENT: Then we need not trouble you further about the documents.

DR. STEINBAUER: I have only the request that, if possible, two books, which are not in my possession, be obtained: Document Number 8, Guido Zernatto, The Truth about Austria, and Number 9, the book A Pact with Hitler—The Austria Drama by Martin Fuchs. I was told by Austrian people that both these books contain worthwhile information on clarifying the events in 1937 and 1938. Both books were, of course, prohibited in Austria during the Nazi regime and therefore I cannot get them.

The second book is also on the list presented by the French Prosecution, and from this I have learned that the book appeared in the publishing firm of Plon in Paris. Perhaps it is possible, with the assistance of the Prosecution, to get these books in time. All other documents I have in my possession.

THE PRESIDENT: Did you say Number 2? You said 8 and 9, but did you also say Number 2?

DR. STEINBAUER: Number 2, Three Times Austria, by Schuschnigg.

THE PRESIDENT: I thought you mentioned the third book. You said you have not got Numbers 8 and 9 and I thought you went on to mention a third one.

DR. STEINBAUER: No, Sir; only these two books.

THE PRESIDENT: Very well. Then, no doubt, the Prosecution will help you to get them.

SIR DAVID MAXWELL-FYFE: We will make inquiries, My Lord, and we will communicate with them.

THE PRESIDENT: Yes. I call on counsel for the Defendant Speer.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Defendant Speer has asked for 22 witnesses, who are all to answer in writing. There are no oral witnesses. And he asked for 41 documents. He has also asked that the Court appoint a panel of experts to interrogate a number of witnesses on what are termed “economic questions.” Now, I think it would be convenient if I summarize in four sentences the points of defense that appear on Page 26 and the following pages of the application, because if the Tribunal have these in mind it will make consideration of the witnesses easier.

There are four points. Number 1 is to show the responsibility of Speer. The Defendant Speer says that he was not responsible for the mobilization, allocation, or treatment of labor. The second point is to prove that his functions were merely technical and not political. The third point, to prove his actions to stop the importing of foreign labor and the treatment of concentration camp labor in the armament factories, which were his concern. The fourth point is his efforts, at the end of the war, to stop destruction in Germany and so to benefit the Allies and Germany after the war.

Now, of the witnesses, the following are from his own ministry, Numbers 1 to 6, 8, 10, and 12. The Prosecution submit that nine is rather a large number dealing with the position of the ministry. They are cumulative on many points and we should suggest that, if counsel would pick three, that that would cover that part of the case.

Now, the following witnesses, Numbers 15 to 21, are designed to show the attitude of the defendant at the end of war. There are a number of documents on this point, and again the Prosecution submit that that number of witnesses could be cut down to two or three.

Now, dealing with the remaining witnesses, Number 7, Field Marshal Milch, has already been allowed to Defendant Göring, so that point does not arise.

And Number 9, Dr. Malzacher, although not a member of the defendant’s ministry, was in charge of armaments in the southeast, and would appear to be cumulative as to the members of the ministry.

Number 11 is the liaison officer between the ministry and the OKW and also appears cumulative, unless counsel could indicate any special point that escaped the Prosecution.

Number 13 is really cumulative of Number 12, speaking on a point on which Frau Kempf can speak.

Number 14 is the defendant’s doctor, to speak on a period of illness. Again, unless there is some point that the Prosecution have not appreciated, they would have thought that the defendant and his secretary could speak on a period of illness.

Finally, Number 22, Gottlob Berger, is designated to inform the Tribunal of Hitler’s general views on the situation at the end of April 1945, and would appear to be irrelevant. I think the only point that is made is to show that this had some effect on the radio speech which this defendant wanted to make. These are the views of the Prosecution as to the witnesses. With regard to the panel of experts, the Prosecution respectfully say that these matters of supply labor and armaments are matters which are very generally familiar now and on which a great deal of evidence has been given, and that they are essentially matters which can be dealt with by the Tribunal which will decide other questions of fact. They are not really sufficiently specialist matters to merit the Tribunal’s setting up a special panel to deal with them. These are the views of the Prosecution on the question of witnesses.

THE PRESIDENT: Yes, Dr. Flächsner.

DR. HANS FLÄCHSNER (Counsel for Defendant Speer): May I start, Mr. President, with the last point which the prosecutor has mentioned, namely, the question of whether the case of the Defendant Speer might justify having his sphere of activity explained and interpreted to the Court by an expert. The prosecutor is of the opinion that the evidence presented so far is sufficient to inform the Tribunal about the manner of work, the course of work, and its consequences in regard to those questions, which came under the jurisdiction of the Defendant Speer.

I regret to have to say, however, that the description which the Prosecution has given of the activity of the Defendant Speer up till now is not correct, that is to say, not complete.

It is very difficult to take account of a ministry and its manner of work, which in normal times has no place in the state administration. In all states at war the ministries of armament and production are created during the war. The sphere of activities of these ministries is determined from time to time; and that also applies to the ministry which the Defendant Speer headed.

Not only the ministry of the Defendant Speer, but especially other authorities within the state administration were concerned with that question, which the Prosecution has brought to the notice of the Tribunal; and the authorities overlapped each other in regard to jurisdiction. Many times the jurisdiction of a single authority could not be determined, so that from time to time a solution would have to be found. These are all questions of importance, if the Tribunal is to judge to what extent this or that accusation of the Prosecution, especially concerning the employment of foreign workers, is well founded. In addition we have to consider that that defendant originally involved in this complex of economic questions, who could have helped very much to clear up the question of jurisdiction—the Defendant Ley, who, as head of the German Labor Front, played an important role in the question of labor employment, that is, the taking care of the laborers utilized—that this Defendant Ley is no longer here. The question of the use of foreign labor, of which the Defendant Speer is in the main accused by the Prosecution, must be discussed further. For this reason I requested that an expert be allowed to clear up these purely technical questions of the labor employment as a help to the Tribunal.

The selection of such an expert is not easy. I proposed that one of the gentlemen who work in the economic branch in Washington might have examined the question of Speer’s ministry; and might appear as an expert before this Tribunal. I was told this office does not exist any more and the persons of whom the Defendant Speer had the impression, at the occasion of an interrogation, that they really understood the situation, are no longer available. But, there is still an Allied authority here, which is concerned with, in all probability, economic questions; and perhaps it would be possible to select a suitable person within the circle of gentlemen who are working there, who would be in a position to clear up these questions for the benefit of the Tribunal.

I turn now to the question of witnesses. First of all I have to correct a wrong impression which may have been formed by the Prosecution. If it is said that witnesses 1 to 5—no, 1 to 6, 8 and 10 and 12. . .

THE PRESIDENT: If you are leaving now the question of the panel of experts, this would be a convenient time to break off for the recess.

[A recess was taken.]

DR. FLÄCHSNER: Mr. President, I am now turning to the question of witnesses and should like to make a general remark before I start.

The evidence to be offered by the witnesses, as I have already requested in writing, is somewhat more extensive for this reason, that those very witnesses who would have had the most comprehensive knowledge cannot be called. Those are the former Army chiefs of armaments, General Fromm, and Schieber, who for many years was the chief of the central office in Speer’s ministry. The names which I have included in my list are, in part, men who only later were called to these tasks. Witness Hupfauer, for instance, who is listed as Number 1, was active in this function only from 1 January 1945 on—that is barely 4 months—as chief of the central office, an office formerly held by the previously mentioned Schieber.

I know very well that if I mention a number of witnesses who were employed in Speer’s ministry the appearance is thereby created that these witnesses might be cumulative because they are questioned in regard to the same points. In reality that is not the case. Indeed, although the witnesses concerned were active in Speer’s ministry, they were not active as routine officials, that is, as professional civil servants in an office.

Speer’s ministry as a war institution was organized along lines entirely different from those of a regular ministry. Main functions were delegated to industrialists, who took care of them in a suboffice. Rohland, witness Number 2, was, for instance, by profession a director of the United Steel Works; witness Number 4 was director of the Zellwell A.G.; witness Number 6, a manufacturer and owner of a textile factory; witness Number 9, the director of the Upper Silesian mining works and of Hütten A.G. In addition to these functions they had special functions in Speer’s ministry. Therefore they can testify only on a small section, namely, those functions delegated to them. Therefore I cannot follow the suggestion of the Prosecution, that only two of these gentlemen be selected by me.

I do not know just how far each of these gentlemen is informed on the questions which I shall submit to him. I am not in the fortunate position of the Prosecution, who can question their witnesses in advance and find out what they know. I must rely on an interrogatory and can only surmise that they are in a position to answer the questions submitted to them. If I were to follow the suggestion of the Prosecution and select only two or three of these gentlemen, it may very well happen that I should select exactly the wrong people, those who do not know anything. Therefore I cannot say that I could dispense with any one of these witnesses who are to be here on the main question in the case against Defendant Speer, namely, the employment of foreign laborers.

In the list of witnesses I mentioned briefly the particulars about which these witnesses are to be heard. I believe that it is unnecessary for me to make further explanations in that regard; I believe my reasons are self-explanatory.

Now I am turning to the question of witness Number 7. This witness has already been granted me. I do not believe that further explanations in regard to this are necessary.

As far as Malzacher, witness Number 9, is concerned, the Prosecution asserts that this witness would be cumulative of witness Number 1. But that is not so. The vital question which is to be put to this witness is the question as to how the distribution of manpower to the various industries was made by the labor office. The second question is, whether and to what extent the offices of Speer’s ministry and the industries had the opportunity of influencing the distribution of available manpower. This witness is of decisive importance in regard to this question. I have further questions to put to this witness and I should include in the interrogatory these questions which refer in particular to destruction, et cetera.

I wanted my list to be as concise as possible and therefore mentioned only the main points. I therefore request that this witness be admitted, since I shall make use of the interrogatory only insofar as the witnesses can state therein something which is really relevant. If an interrogatory comes back to me which does not contain relevant material, I shall, of course, refrain from abusing the time and the patience of the Tribunal by not presenting that interrogatory.

The Prosecution is of the opinion that witnesses 12 and 13 are cumulative. That is not correct. Perhaps I expressed myself too concisely in regard to the facts on which these witnesses are to testify.

The Prosecution have, only incidentally to be sure, produced a document, 3568-PS, which contained an interrogatory which gave information regarding Speer’s membership in the SS. This document did not, according to the Defendant Speer, come from him, and therefore I name his secretary as a witness to this fact; that is, she should receive an interrogatory.

Witness 13 is to testify on an entirely different matter. The Reichsführer SS Himmler had the intention of making Speer an SS man and of taking him into his personal staff. Witness Wolff had received from Himmler the official statement, which he was to hand to Speer. And Wolff is to testify that this statement was never forwarded to Speer, for which reason there is no question of Speer’s membership in the SS.

Even if, in respect to the charge in the Indictment, this is a very minor point, it must nevertheless be considered, since Document 3568-PS has been submitted by the Prosecution and used as evidence for their case.

I agree with the Prosecution that questioning of witness Number 22 can be dispensed with and I can do so.

As far as the questioning of the other witnesses is concerned, I ask to be allowed to use interrogatories.

THE PRESIDENT: May I ask you what you have to say about 14? Surely the secretary can speak as to the fact that the defendant was ill in the spring of 1944?

DR. FLÄCHSNER: Yes, Mr. President; I did not include this question in the interrogatory but I can add it, and we can dispense with witness 14.

THE PRESIDENT: Would it, do you think, Sir David, expedite matters or help the defendant’s counsel if he were to be allowed to issue all these interrogatories and then were to consider them with you and see what was then cumulative?

SIR DAVID MAXWELL-FYFE: Yes, I should be quite prepared to do that. They are all witnesses who are giving their evidence in writing so that I shall be quite prepared to. . .

THE PRESIDENT: Well, the Tribunal will consider that aspect of the matter.

SIR DAVID MAXWELL-FYFE: If the Tribunal saw fit I should be very happy to co-operate.

THE PRESIDENT: Then you can now deal with the documents, Dr. Flächsner, or Sir David will.

SIR DAVID MAXWELL-FYFE: My Lord, the documents 1 to 8 deal with the Defendant Speer’s being against the importation into Germany of foreign labor and they seem relevant, apart from Number 1, which seems rather a non sequitur, for the amount used in the armament industry does not seem to have any connection, as far as we can see, with the Prisoner-of-War Convention, 1929. And Number 6, as to the calling up of women in Germany, seems rather remote. But perhaps these matters can be more conveniently dealt with when counsel seeks to introduce the documents.

Numbers 9 to 13 show the general attitude of the Defendant Speer to the treatment of foreign workers and therefore appear relevant. Number 14 deals with the point on which I think it is desired also to have evidence from the witness Milch.

Numbers 15 to 18 are reports showing the hopelessness of the economic situation in Germany from June 1944 onwards. The Prosecution makes no objection at the moment. Of course, all these matters will have to be considered when the document is used. And Numbers 19 to 41 all deal with the efforts of the Defendant Speer to prevent destruction of bridges and railways and water transport undertakings and the like, during the last few weeks of the war. They might have a bearing on the sentence and therefore the Prosecution make no objection.

Perhaps learned counsel will set out the quotations which he wants admitted in that regard. It is not a matter on which the Prosecution have called any contrary evidence and therefore, if counsel will indicate what the matters are that he wants submitted, it may be that we shall be able to agree and shorten the presentation.

With regard to Documents 38 to 41, these are said to be in the possession of the French Delegation. They are not in the possession of the French Delegation at the moment, but they have asked for them to be sent here.

I think that covers our position as to documents.

DR. FLÄCHSNER: I should like to comment briefly on one factor. Document Number 1 is of value only if the Tribunal decides to call an expert on the general themes which I described to the Tribunal before the recess.

An expert—for practical purposes an industrial expert—can draw from the old distribution plan conclusions which the jurist is generally not in a position to draw. If the expert is considered superfluous by the Tribunal, then Document Number 1 is also superfluous—that I see.

The other documents requested by me are of importance, but not because, as the Prosecution seem to assume, I am trying to produce evidence of the fact that we did not want any foreign laborers; this should not be expressed so pointedly.

The Defendant Speer had the task of producing armaments and needed workers for that. Nothing is farther from his intentions than, in any way, to deny or lessen his responsibility in respect to that. But what I have to consider important—and for this purpose these documents, which I am requesting, are essential—is the task of defining the extent to which the defendant is responsible.

I believe that this explains the question of documents.

THE PRESIDENT: I am not quite clear as to whether you are suggesting that the Tribunal should call the panel of experts or whether you would like to designate the persons who would form that panel.

DR. FLÄCHSNER: The selection of experts I wish to place in the hands of the Tribunal. At the moment I myself should not have the opportunity of finding a suitable person. I am fully aware, though, that in the department of economic warfare there were persons who would be very suitable as experts and who have the knowledge which is necessary in the judgment of these questions.

THE PRESIDENT: Then, supposing that the Tribunal were not to accept your contention as to appointing a panel of experts, there is nobody whom you wish to add to your list of interrogatories?

DR. FLÄCHSNER: I believe not, Mr. President. I have only one more request. This expert should voice an opinion as to whether the figures given by Mr. Deuss in his affidavit—Document Number 2520-PS—would stand up under close examination. In this affidavit Mr. Deuss stated statistically how many of all the workers employed in Germany were foreign workers in the armament industry, et cetera.

Important technical objections can be raised to the method of figuring used by Mr. Deuss. If the Tribunal is not to grant the use of an expert in this matter, I wish to ask for permission to submit certain questions to Mr. Deuss, in the form of an interrogatory, naturally, in order to give him the opportunity of checking his figures.

The affidavit as given by Mr. Deuss and the statements contained therein were considered relevant by the Prosecution at the time; I assume that the objections made to Mr. Deuss’ figures will also be considered relevant. I should then have to ask permission to call Mr. Deuss’ attention, by means of an interrogatory, to these points which in my opinion are technically incorrect.

THE PRESIDENT: Thank you.

COL. POKROVSKY: Please forgive me. I have not had the time to exchange opinions on the subject with my friend, Sir David, and my other colleagues. Therefore, at the present time, I am merely expressing the point of view of the Soviet Delegation on the subject of experts.

I do not consider that the appointment of a board of experts would be a method of solving the problem which could be recognized as correct. We would object to the introduction of experts for the clarification of the circumstances interesting the Defendant Speer and his counsel, as set forth in the document submitted by them. We do not consider it right that a question like the procedure governing the request for manpower for Speer’s ministry, and the ratification of this request by Sauckel, as well as the allocation of workers by the competent local labor offices should call for the findings of a board of experts. We do not consider it right that questions of technical productions, as emanating from Speer’s ministry, should call for expert opinion.

I could say as much with regard to all the subsequent points. We are inclined to defend the point of view that all these problems can be adequately elucidated by the high Tribunal, and this without the intervention of experts. Therefore the Soviet Prosecution objects to the granting of this claim and requests the Tribunal to reject the application for a board of experts.

THE PRESIDENT: I call upon counsel for the Defendant Von Neurath.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the witnesses of the Defendant Von Neurath, the Prosecution makes no objection to Number 1, Dr. Koepke, who was the director of the political division in the Foreign Office.

Then, Number 2, Dr. Gauss, is the witness who has already been granted for the Defendant Ribbentrop.

With regard to the third, Dr. Dieckhoff, the Tribunal granted this witness on the 19th of December, but the Prosecution, having considered the basis of the present application, respectfully suggests that it might be covered by interrogatories.

DR. OTTO FREIHERR VON LÜDINGHAUSEN (Counsel for Defendant Von Neurath): Mr. President, I agree, and I have already worked out an interrogatory which will be submitted to the General Secretary today; but I wish to reserve the right of asking under certain circumstances that, when the interrogatory is returned to me, the witness nevertheless be heard in person before the Tribunal. In principle I agree, however, to his being heard by means of an interrogatory.

SIR DAVID MAXWELL-FYFE: Much obliged. And the same view is taken by the Prosecution of Number 4, the witness Prüfer; again it seemed to be largely a historical matter and they suggested an interrogatory. There is no objection to the evidence of the witness being brought before the Court.

DR. VON LÜDINGHAUSEN: This interrogatory has already been submitted by me to the General Secretary several weeks ago. I assume that it will be returned to me, answered, within a reasonable period of time.

SIR DAVID MAXWELL-FYFE: Then, Number 5 is Count Schwerin von Krosigk, who was Finance Minister for a long period of years in the Government of the Reich. If the Tribunal would be good enough to look at the application which Dr. Von Lüdinghausen has put in: He says this witness is most accurately informed about the personality of the defendant, his political viewpoints as well as the basic thoughts and aims of the policy of peace carried on by the defendant, and his avoidance of all use of force as well as his endeavors for the maintenance of peace, even after being Foreign Minister, and about his opinion of National Socialism and about the happenings in the Cabinet session of 30 January 1937.

The Prosecution felt that these matters were really emphasizing points that the defendant would speak on, and that it was difficult to see that Count Schwerin von Krosigk was being asked to speak on any particular point that was an issue. Therefore, again, they would suggest that an interrogatory would be sufficient for the purpose of the defense.

DR. VON LÜDINGHAUSEN: I do not believe that an interrogatory will serve the purpose that I wish to accomplish, for several sectors of the activity of the Defendant Von Neurath are dealt with, in regard to which the witness is to give us information.

For instance, the Indictment asserts that Defendant Von Neurath acted as a sort of Fifth Column in the ranks of the conservative, that is, the German National Party. In regard to the fact that this is not true, the witness named by me, Count Schwerin von Krosigk, can give extensive information; and I attach importance to having this take place before the Tribunal in such a way that the Tribunal may have an idea also of the atmosphere in the ranks of the parties of the Right at the time these things took place.

A further subject for his hearing is the question of the outstanding manner in which the Defendant Von Neurath intervened, although he was no longer Foreign Minister at the time, in order to bring about the conference at Munich in September 1938, and the measure in which he had an effect on the outcome of this conference which, at that time, was generally considered a happy one.

I should consider the summoning before the Tribunal of this witness, who is present in Nuremberg, and who will therefore not have to be brought from another city, important.

SIR DAVID MAXWELL-FYFE: I do not desire to say anything more on that point.

Then, Field Marshal Von Blomberg is, we understand, ill, and there will be an interrogatory.

Number 7, Dr. Guido Schmidt, is the same witness as was dealt with this morning in the case of Seyss-Inquart. He is an Austrian ex-Foreign Minister. I made no objection in the case of Seyss-Inquart and I make no objection now, of course.

Lord Halifax has been the subject of interrogatories.

DR. VON LÜDINGHAUSEN: The interrogatory has already been sent to Lord Halifax, as I have been told by the General Secretary.

SIR DAVID MAXWELL-FYFE: Dr. Mastny, who was the Czechoslovakian Ambassador in Berlin, came into the case in that the Prosecution put in a letter from Jan Masaryk describing a visit of Dr. Mastny to the Defendant Von Neurath. Of course, if there is any issue as to that report—its not being true—then there would be some reason for calling him as a witness; but if it is merely a question of clarifying it, I should believe an interrogatory would be sufficient.

DR. VON LÜDINGHAUSEN: I agree to an interrogatory in this case.

SIR DAVID MAXWELL-FYFE: Then with regard to the next witness, Dr. Stroelin—if the Tribunal would consider that along with Number 12, Dr. Wurm—I understand that the Tribunal granted Number 12 on the 19th of December as an alternative to Stroelin, giving the choice between the witness Stroelin and the witness Wurm. Dr. Stroelin is Oberbürgermeister of Stuttgart. I do not know if Dr. Seidl can tell the Tribunal if it is the same Dr. Stroelin he desires in the case of Hess.

DR. VON LÜDINGHAUSEN: Yes.

SIR DAVID MAXWELL-FYFE: Dr. Von Lüdinghausen tells me that he is, so the Tribunal might note that point—that that witness will also be asked for by Dr. Seidl in the case of Hess—and therefore I should suggest that we might leave that undecided for the moment. If the Tribunal grant it in the case of Hess, of course, Dr. Von Lüdinghausen will automatically have the advantage of this witness; and if he is not granted—and I do not know whether Dr. Von Lüdinghausen feels strongly about his personal presence—I am not the Court—I do not feel very strongly on the point myself. Do you want to be heard?

DR. VON LÜDINGHAUSEN: I quite agree that I should make this decision at that time when the question is settled as to whether the witness is granted to another defendant or not. I should like to make the following remark. . .

THE PRESIDENT: One moment. Which witness?

SIR DAVID MAXWELL-FYFE: Number 10, Dr. Stroelin.

THE PRESIDENT: If Dr. Stroelin were granted would you require Dr. Wurm at all, Number 12?

DR. VON LÜDINGHAUSEN: Mr. President, I do not insist on Dr. Wurm’s being heard in person at Nuremberg. Bishop Wurm has already told me that he would give me the information requested in the form of an affidavit. I should ask for permission to submit this affidavit to the Tribunal. I do not insist on his being heard in person.

SIR DAVID MAXWELL-FYFE: It is merely cumulative, Number 10, but if it is felt that an affidavit would help—it will be along the same lines—I shall not press an objection.

Now, Number 11. The Prosecution felt, with regard to the witness Zimmermann, that he was really speaking on the contents of the defendant’s mind. If I might read the first five lines:

“The witness is in a position to give information about the personality, the character, and the philosophy of the defendant, as well as about the fact that he entered the Cabinet only at the express request of the Reich President Von Hindenburg, and that he remained in the Cabinet after the latter’s death because he was a convinced friend of peace and an opponent of any policy pointing toward force or war, and that because of this reason he handed in his resignation as Reich Foreign Minister soon after 5 November 1937; also about the reasons because of which he declared himself ready to take over the office of Reich Protector of Bohemia and Moravia.”

It would appear that these are all matters which Dr. Zimmermann has heard from the defendant. I do not really think it helps the defendant’s case any further. The Prosecution therefore felt that that witness was irrelevant.

DR. VON LÜDINGHAUSEN: I should like to request that he be heard here. The witness has been a very intimate friend of Defendant Von Neurath for many, many years. The defendant considered him somewhat as a father confessor and informed him of everything which oppressed him. From this information the witness has a very clear impression of events and happenings. Thus this lawyer, Dr. Zimmermann, is very closely informed about the incidents that took place in September 1932, when Von Neurath entered the newly-formed Cabinet of Von Papen upon the express desire of the then Reich President Von Hindenburg. The witness is informed of the fact that Defendant Von Neurath did not wish to accept the call, and that it took very earnest persuasion on the part of the Reich President Von Hindenburg, concerning his patriotic and personal duty, before the defendant could be moved to assume the office of Reich Foreign Minister. This witness also knows the motives because of which the defendant after the death of the Reich President considered it his duty, in response to a wish expressed previously by the Reich President, to remain in office, and in that way to fulfill the wishes of the Reich President.

He also knows very well what a really devastating effect it had on Von Neurath when, on 5 November 1937, Hitler for the first time came to the fore with martial intent. Witness Zimmermann also knows very exactly the reasons which moved the defendant after very long deliberation to assume the office of Reich Protector. The witness also is very well informed not only about the difficulties confronting the position of Reich Protector, but also about the attitude of the defendant to the problems in the Reich Protectorate. These matters are all of decisive importance so far as a judgment of the defendant is concerned, and I do not believe that even an affidavit or minutes of interrogation which has been worked out with the greatest care can have the same weight as a personal hearing of the witness. For these reasons I request that this witness, who has already given me his assurance that he will be glad to come here from Berlin, be granted me. We do not have to find him; he is a practicing lawyer and notary in Berlin.

SIR DAVID MAXWELL-FYFE: I do not wish to add to that. That leaves one point, My Lord, the two witnesses, 13 and 14. The first one, Dr. Völkers, was the chief of the Cabinet of Defendant Von Neurath in Prague. He has not been located. The second, Von Holleben, was. . .

DR. VON LÜDINGHAUSEN: This witness is in an internment camp at Neumünster, and I indicated the exact address.

SIR DAVID MAXWELL-FYFE: Then I think the submission of the Prosecution is that one of these witnesses is suitable, and that it would be unnecessary to call the second witness if Dr. Völkers is available. That is my point.

DR. VON LÜDINGHAUSEN: I quite agree, but I ask you to consent to witness Consul Von Holleben’s being heard by means of an interrogatory.

THE PRESIDENT: It is now a quarter to 1; we will adjourn until 2.

[The Tribunal recessed until 1400 hours.]

Afternoon Session

THE PRESIDENT: It appears probable that the Tribunal will finish the applications for witnesses and documents before the end of the sitting today, but they do not propose to go on with the case against the Defendant Göring until tomorrow. They will take that case at 10 o’clock tomorrow morning.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents applied for by the Defendant Von Neurath, Paragraph 1 requires no comment.

Paragraph 2 refers to documents which Dr. Von Lüdinghausen has in his possession. If they are treated in the usual way and extracts are made, I have nothing further to say.

Then we come to documents that are not yet in his possession. Number 1 and Number 4 are minutes of the Disarmament Conference in 1932 and in May 1933 respectively. I am afraid I do not know what the difficulty has been in obtaining those documents, and if there is any way in which the Prosecution can help, they will.

DR. VON LÜDINGHAUSEN: Concerning Document Number 1 I was able to find, in the meantime, in one of the documents which referred to the Disarmament Conference, a copy of this document which is important for me, namely, the resolution about Germany’s equality of rights. If the document which I have asked for is not here in time, I am nevertheless in the position of having to submit an excerpt from this German book. However, that does not apply to Number 4, and I should like to be able to get that.

SIR DAVID MAXWELL-FYFE: Number 2 is a request for the interrogation of Karl Hermann Frank.

The ruling of the Tribunal was that only the portions of interrogations of defendants used by the Prosecution might be re-used. If any portions of this interrogation were used by the Soviet Prosecution, and I confess. . .

THE PRESIDENT: One moment, please, Sir David. As I understood you, you did not state our ruling quite accurately.

SIR DAVID MAXWELL-FYFE: I am sorry, My Lord.

THE PRESIDENT: I think our ruling was that if the Prosecution put in any part of an interrogation of a defendant, then the defendants would have the opportunity of using any other part of the interrogation, treating the interrogation as one document.

SIR DAVID MAXWELL-FYFE: I am very grateful to Your Lordship. That was the rule so far as defendants are concerned, but Karl Hermann Frank is not a defendant.

THE PRESIDENT: Oh, I see.

SIR DAVID MAXWELL-FYFE: And any portion that has been used would have appeared in the ordinary way in the document book of whichever delegation had used it. The general interrogation was taken, of course, not only for the Prosecution’s purpose at this Trial, but also for the purposes of the Czech Government, in the trial of Karl Hermann Frank himself. Therefore, what I suggest is that Dr. Lüdinghausen put interrogatories to Karl Hermann Frank, on whatever points he wants to raise. The Prosecution would have no objection to that.

DR. LÜDINGHAUSEN: Mr. President, may I make the following reply?

These minutes of the four interrogations of Karl Hermann Frank are mentioned and discussed in Exhibit Number USSR-60, which has been given to me and which contains the indictment made by the Czech Government.

I cannot judge to what extent these interrogations are important in reference to my client, the Defendant Von Neurath, as Reich Protector, or whether they have to do with a later period. For that reason I have asked that these protocols be made available to me. I know that Karl Hermann Frank has also been questioned about the document concerning the meeting in Prague on a policy of Germanization of the Czech country. To this document, which was presented, that is to say, which is contained in a report of General Friderici, reference is made in the respective minutes.

Now, I know that Frank once made a report to the Reich Protector in which he labeled all the opinions and proposals—which actually, however, were never put into actions—ridiculous and declared them to be impossible. Therefore, it is important for me to know just what is said in these minutes which the Czech indictment has drawn on at this point. If nothing is contained therein, then, of course, I shall dispense with these minutes, but I have to examine them myself. It is, therefore, important for me to see these minutes, at least, and then to present from them whatever is of importance for me.

THE PRESIDENT: Sir David, would you have any objection to counsel for Von Neurath seeing these interrogations?

SIR DAVID MAXWELL-FYFE: I should have to consult the Czech Government before I could agree, because, frankly, I have not gone through the parts which we were not concerned with in this case, and I do not know on what subjects the interrogation was based.

THE PRESIDENT: But treating the matter as a matter of principle, if a certain document or a part of a document is used, ought it not to be open to the defendants to use the rest of the document?

SIR DAVID MAXWELL-FYFE: I should have thought it a matter of principle, My Lord, only if there were connected parts. I think that is the general rule that is applied, say, to interrogatories in the English courts. For example, supposing that one day Karl Hermann Frank was examined about the early days of the Protectorate, and then on another day he was examined on a specific point at the end of the Protectorate. Then I should not have thought that the two things were sufficiently closely connected.

My Lord, I am reminded that there is another point, which Mr. Barrington has just brought to my attention. These interrogatories were the basis of the Czech Government report. They are not introduced as interrogatories but—so I am told—as part of the report by the person who drew it. It is not material that we are in a position to introduce as interrogatories. They come in as a Government report from the Czech Government.

THE TRIBUNAL (Mr. Biddle): If it should develop later that it is relevant to the occasion, could the Prosecution object to that material being introduced?

SIR DAVID MAXWELL-FYFE: No. If he can get the material, but the material is the property of the Czech Government.

THE TRIBUNAL (Mr. Biddle): Then your position is really that it is not in your hands, but for the Czech Government to determine it.

SIR DAVID MAXWELL-FYFE: Certainly.

THE TRIBUNAL (Mr. Biddle): I see.

SIR DAVID MAXWELL-FYFE: The only other document is the treaty between France and the Soviet Union, in 1935. This document was authorized by the General Secretary on 29 January, and if there is any difficulty in getting a copy, I will try to do anything I can to help, subject to the reservation of objecting to its relevance when I know what use is going to be made of it.

DR. LÜDINGHAUSEN: May I add a few more words to this point?

During the very last few days I have received, from various sides, suggestions of information which seem important to my defense; but I have not yet had the opportunity of checking this information and finding out whether it is really of importance to the conduct of the Defense. May I therefore ask, if this should be the case and if there should be one or two other witnesses or documents which I can find out about only later, that I be permitted to make an application supplementary to the list of witnesses and documents I have given today.

THE PRESIDENT: I call upon counsel for the Defendant Fritzsche.

[Dr. Fritz approached the lectern.]

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, there are only two witnesses applied for in this case.

The first of them is Von Schirmeister, who was an official of the late Dr. Goebbels in the Propaganda Ministry. The Prosecution have no objection to that witness.

With regard to the second witness, Dr. Otto Kriegk, the application says that he received his information and instructions from the Defendant Fritzsche and he can speak as to the directives issued to journalists. On the assumption that these were more or less official directives that he gave in the course of his duty, again, I do not think there can be any objection from the Prosecution. But I do not know what Dr. Fritz would think about interrogatories, or whether he has any strong views about calling Dr. Kriegk on that point. As I understand it, it would be more or less a synopsis of the directives given, but in view of the very modest proportions of the applications in this case, I do not want to be unreasonable if there is any special reason for calling Dr. Kriegk.

DR. HEINZ FRITZ (Counsel for Defendant Fritzsche): Your Honors, I have presented a very restricted list of evidence material and I should be grateful if the personal appearance of the second witness, Dr. Kriegk, were granted, for the following reasons: First the witness Von Schirmeister has been named because he is to give us information about the internal tasks which the Defendant Fritzsche had in the Ministry for Propaganda, especially about his relations to Dr. Goebbels. As far as the daily press conferences which the Defendant Fritzsche held are concerned, this first witness, Von Schirmeister, did not take part in them. From the subjective angle, especially, it is important to know what directives the Defendant Fritzsche gave the journalists, specifically the most important German journalists who assembled daily at his press conferences.

As a further reason for my request that the personal appearance of this witness be granted, I point out that, of the collection of documents or rather of the two document collections, 1 and 2 of my list are not yet available to me, so that there are various points which I had wanted to prove by presenting documents or quotations therefrom which I now hope to prove by questioning these two witnesses.

SIR DAVID MAXWELL-FYFE: I do not press the point of an affidavit. I leave it to the Tribunal.

With regard to the documents, Number 1 is the broadcasts of the Defendant Fritzsche, and there is obviously no objection from the Prosecution to that.

Number 2 is the archives of the section German Express Service. And again we make no objection at this stage. We will perhaps have to consider the reports when we get them.

There is a little trouble about the third group, sworn testimony or letters which contain objective observations on the part of the writers about the acts of the Defendant Fritzsche. If these are official reports or anything of that kind, of course, there would be no objection, if they were contemporaneous; but the course which the Prosecution respectfully suggests to the Tribunal is that we wait and see these in the document book and then we can consider them and make any objection when they come up.

DR. FRITZ: I agree to this procedure. I believe I need say nothing more about Documents 1 and 2 after the statement Sir David has just made.

THE PRESIDENT: Sir David, some of the defense counsel want to put in supplementary applications. It would be convenient to deal with them now.

SIR DAVID MAXWELL-FYFE: Perhaps Your Lordship will allow me to confer with my colleagues as we deal with each one, as we go along, in case they have any further views to express.

THE PRESIDENT: Certainly. I think there are some supplementary applications by Dr. Seidl.

DR. SEIDL: Mr. President and Your Honors, on 28 February 1946, I submitted to the Tribunal a supplementary application for the Defendant Rudolf Hess. The application was necessary for the following reasons: In my first application I mentioned the witness Bohle, the former Gauleiter of the Auslands-Organisation of the NSDAP, for a number of subjects, among others in reference to the German Foreign Institute and the activity of the League for Germans Abroad. When I made that application to question the witness Bohle I had not yet had any opportunity to speak to the witness. After approval by the Tribunal, however, I did so, and I found out that the witness Bohle, although he can make very concrete statements about the Auslands-Organisation, does not have any immediate first-hand information about the activity of the German Foreign Institute and the activity of the League for Germans Abroad.

I therefore ask that the following be approved as further witnesses: First, Dr. Karl Stroelin, former Oberbürgermeister of Stuttgart and finally President of the German Foreign Institute. The witness is here in Nuremberg as a prisoner awaiting trial, and it is the same witness who has also been requested by the Defendant Von Neurath in his case.

SIR DAVID MAXWELL-FYFE: Perhaps it would be convenient, My Lord, if Dr. Seidl would indicate what the final position of these witnesses is. As I understand it, he no longer wants Herr Bohle. Is that right? I am not clear whether this witness is in addition to or in substitution for Herr Bohle.

DR. SEIDL: With regard to the witness Dr. Stroelin, this is an additional witness. The witness Bohle will still be needed as a witness, but only concerning the matter of the activity of the Auslands-Organisation. The witness Stroelin, since the witness Bohle has not first-hand information about the Foreign Institute, should speak about this latter point.

SIR DAVID MAXWELL-FYFE: If I understand it, that would mean that Dr. Seidl is now asking for Herr Bohle, Herr Stroelin, Dr. Haushofer, and an affidavit, I think it is, from Alfred Hess.

I am not sure that this is not rather an accumulation of witnesses on what is, perhaps, a narrower point than Dr. Seidl realizes, from the point of view of the Prosecution. The Prosecution said that the Auslands-Organisation was used for promoting Fifth Column activities, but it was only put in this way: That by using the Auslands-Organisation there was, first of all, complete record and organization of Party members abroad; secondly, the intelligence service of that organization, through the organization, reported on all German officials of every section of the Government who came abroad and kept check on them in their work, in addition to German subjects; and because of this intelligence service, these Germans were ready for use and in fact were used when there was a question of invasion of the country.

It was not suggested that there were direct orders, for example, to blow up bridges or commit acts of sabotage, given directly to the organization, which is a matter of inference from the functioning of the organization that I have described.

I say that only because it should be helpful to Dr. Seidl to know the case he has to meet. The Prosecution has never proved direct orders for sabotage in this regard.

DR. SEIDL: The trial brief on his case has accused Rudolf Hess of the fact that, under his leadership, the Auslands-Organisation of the NSDAP, as well as the Foreign Institute and the League for Germans Abroad had developed an activity which was almost equivalent to that of a Fifth Column. It is correct that in the original indictment of the Defendant Hess, personally, there were no details given by means of which the indictment meant to show this activity and above all Hess’ guilt in regard to the activities of these organizations.

As long, however, as the Auslands-Organisation and the Foreign Institute and the League for Germans Abroad are accused of any connection with the activities of a Fifth Column, the Defendant Hess has a reasonable interest in seeing explained, first, what kind of activity these organizations had and, second, which orders or directives he had given to these organizations.

The witness Bohle is in a position to make very concrete statements regarding the Auslands-Organisation. The same is necessary for the German Foreign Institute about which Dr. Stroelin, who is here in Nuremberg, can make authentic statements, and for the League for Germans Abroad, about which the witness Dr. Haushofer can speak.

I agree, however, with regard to the physical condition of the witness, Dr. Haushofer, that only an interrogatory be used for this witness.

SIR DAVID MAXWELL-FYFE: I have no objection to interrogation as far as Dr. Haushofer is concerned.

THE PRESIDENT: There is one more you want?

DR. SEIDL: Yes, Sir, a third one. Before I come to the third witness, whom I wish to name as an additional witness, I should like to inform the Tribunal that I do not insist on a personal hearing of the witness Ingeborg Sperr, who has already been approved by the Court. Instead of that, I shall submit a short affidavit, which is already in the document book which I have already given to the General Secretary.

In the place of the witness Sperr, I request, however, that the witness Alfred Leitgen be called. Leitgen was for many years, until the flight of Rudolf Hess to England, his adjutant.

I could not apply for this witness any sooner because I have found out only now where this witness is. I believe that a personal hearing of this witness is so important that one should not dispense with it.

SIR DAVID MAXWELL-FYFE: The two points which Dr. Seidl specifies both seem to be relevant points, and in view of the fact that he is prepared to drop the calling of the secretary, the Prosecution will not take objection to that witness.

THE PRESIDENT: Are there any more applications?

SIR DAVID MAXWELL-FYFE: I wonder if Your Lordship will allow me to say one thing. Dr. Servatius has already had certain conversations with a member of my staff. I think they will prove profitable and helpful on the lines that Your Lordship suggested, and if the Tribunal will be good enough to safeguard Dr. Servatius’ rights for a day or two, we hope to have something practical and useful to put before the Tribunal.

THE PRESIDENT: You mean with reference to the organizations?

SIR DAVID MAXWELL-FYFE: No, with reference to the Defendant Sauckel.

THE PRESIDENT: Oh, yes.

SIR DAVID MAXWELL-FYFE: Your Lordship will remember that you allowed the matter to stand over. We have been working along the lines that Your Lordship suggested, but I am afraid that I have not had time to go into it myself and see the final result.

THE PRESIDENT: I see.

DR. SERVATIUS: In discussing the witnesses, I proposed a restriction which is being presented to the Court in writing. Concerning the documents, I have also practically come to an agreement as to how they should be handled. There are, however, two principal applications which I should like to submit and which have not been mentioned so far. But I believe that a decision will have to be made by the Tribunal in respect to principle. The applications are Documents 80 and 81.

Document 80 is a photostat of a deportation order which had been issued in the city of Oels by the Soviet local commander, whereby the native male population had to report for deportation; and it can be seen from this order that it is deportation for the purpose of labor. I want to submit this to show that the Hague agreement concerning land warfare has been considered obsolete by the Soviet Army. I have only this one deportation order. I should therefore like to suggest that the Tribunal make use of Article 17(e) of the Charter and have a judge determine on the spot to what extent this deportation took place, and I should like thereby to have it shown that it is not only the town of Oels, but that it was done similarly on a large scale in the cities of East Prussia and Upper Silesia. The population was deported in large numbers for purposes of work and, if the information which I have received is correct, part of the population of Königsberg is today still in the Ural Mountains. I am not in a position to submit documents about all these things, because of the difficulties of mailing, and the difficulties of receiving news from the East at all. But the Tribunal should be in a position, by asking the mayors and other officials, to find out that what I have just said is correct.

Under Document 81 I submit an affidavit concerning the city of Saaz in Czechoslovakia. There 10,000 inhabitants of the city of Saaz were put into a camp and, until Christmas 1945, they worked there without pay. I believe also that this is proof of the fact that the Hague agreement concerning land warfare is considered to be obsolete and outmoded in regard to labor employment.

Furthermore, Documents 90 and 91: These are two books with affidavits meant as a substitute for an investigation. It would be irrelevant if I were to produce one or two affidavits concerning conditions in the labor camps. One could object to that as being irrelevant because, in view of the large number of factories and camps which exist, little proof would be afforded by these affidavits. These mass conditions have somehow to be considered juridically. Therefore, the Charter has admitted government reports. I am not in a position to ask a government to help me in this matter. Therefore I have to find a substitute by collecting affidavits and grouping them in logical form in a notebook in order to submit them to the Tribunal. This is the purpose of my proposal to introduce a presentation of proof which is an innovation and is difficult for me; but thereby the same objections are justified which one might make to an investigation. An investigation has great weaknesses, especially if it is conducted in a one-sided manner without participation of those involved on the other side. In the case of my affidavits, this danger is greatly reduced because it is hard to find anybody who would fill out these affidavits unless he has very serious reasons for doing so. I therefore ask the Tribunal to decide about my application concerning these Documents 90 and 91. That is the matter I wanted to submit here; the rest I shall discuss with the Prosecution.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, I have already intimated the grounds on which the Prosecution object to Documents 80 and 81. To test their admissibility the easiest way is to assume that Dr. Servatius has proved the facts alleged. And if that is done they would not, in my opinion, come within miles of proving that Article 52 had become obsolete; and it is illustrative of the danger which I ventured to point out to the Tribunal in regard to these two arguments—that vague and hypothetical suggestion that there might be some evidence that Article 52 had become obsolete. It is suggested that the Tribunal should try the conduct of the Soviet Union with regard to labor conditions and, as I understand, send a commission to collect evidence on that point; and I do not want to repeat the arguments, but the Prosecution most strenuously object to the suggestion and say that nothing has been indicated which provides any basis for it.

With regard to 90 and 91, I really feel that the best method would be by solvitur ambulando. Let us see the affidavits and get some idea of their contents and the source of knowledge disclosed and then the Prosecution can make a decision regarding them. At this stage I do not want to do anything to exclude them and they will receive the most careful attention by my colleagues and me when they are brought forward.

THE PRESIDENT: I am told that there are other supplementary applications for the Defendant Schacht and for the Defendant Keitel. I think there may be some mistake about that.

Is the Defendant Bormann’s counsel here?

DR. FRIEDRICH BERGOLD (Counsel for Defendant Bormann): Yes.

THE PRESIDENT: Are you ready to deal with anything yet?

DR. BERGOLD: No.

THE PRESIDENT: I think the Tribunal made an order that your applications would stand over for some application within the next three weeks. So you are not ready yet? I am told your documents are all here. Is that so?

DR. BERGOLD: Mr. President, my documents are here, as far as I know. However, since I have to collect my own information from the books, I cannot tell the Tribunal whether these will be all my documents. I therefore have asked permission to speak to the secretary, Wunderlich, who was secretary for a long time, and also to another woman secretary. Only from these two shall we get satisfactory information. Bormann, I cannot reach. Therefore, for practical reasons, I ask permission to present everything at a later date.

THE PRESIDENT: Very well. Then the Tribunal will now—I am told that there are applications from the Defendants Keitel, Rosenberg. . .

DR. BERGOLD: Mr. President, Defense Counsel for Keitel and Rosenberg are not present at the moment. They probably did not expect that their applications would be presented today. Maybe that could be done tomorrow before the beginning of the Göring case.

THE PRESIDENT: Well, the Tribunal will now adjourn.

[The Tribunal adjourned until 8 March 1946 at 1000 hours.]

TRANSCRIBER NOTES

Punctuation and spelling have been maintained except where obvious printer errors have occurred such as missing periods or commas for periods. English and American spellings occur throughout the document; however, American spellings are the rule, hence, “Defense” versus “Defence”. Unlike Blue Series volumes I and II, this volume includes French, German, Polish and Russian names and terms with diacriticals: hence Führer, Göring, Kraków, and Ljoteč etc. throughout.

Although some sentences may appear to have incorrect spellings or verb tenses, the original text has been maintained as it represents what the tribunal read into the record and reflects the actual translations between the German, English, French, and, most specifically with this volume, Russian documents presented in the trial.

An attempt has been made to produce this eBook in a format as close as possible to the original document presentation and layout.

[The end of Trial of the Major War Criminals Before the International Military Tribunal Vol. VIII, by Various.]

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