Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, Volume 09 (part 4 of 4)
The next questions refer to Dahlerus. Question 15, which is the question put to Halifax, is also of importance in my opinion:
“Did you have the impression that Göring’s endeavors to avoid war were sincere?”
The answer of Halifax is:
“I have no doubt that Göring would have preferred to enforce the German demands on Poland without war, if he could have.”
At the end of June or the beginning of July 1938, the Defendant Göring made a speech to the Gauleiter at Karinhall which was distinctly a speech for peace. I am referring to a statement from Dr. Uiberreither of 27 February 1946, the original of which is being presented as Document Number 38, Exhibit Number Göring-4, and is given in Document Book Number 2 on Page 37.
THE PRESIDENT: You are putting in these originals, are you?
DR. STAHMER: Yes, indeed.
In that statement from Dr. Uiberreither, dated 27 February 1946, at Page 38 in Document Book Number 2, Your Honor, it says:
“On 25 May 1938”—says Dr. Uiberreither—“that is, after the plebiscite concerning the reunion of Austria with Germany, which had taken place on 10 April 1938, I was appointed Gauleiter of Gau Steiermark.
“A few weeks later—it may have been towards the end of June or the beginning of July 1938—the former Field Marshal Hermann Göring summoned all Gauleiter of the German Reich to Karinhall.
“He there delivered quite a long address to the Gauleiter, describing the political situation as it was at the time, and discussing in detail the purpose and significance of the Four Year Plan.
“Field Marshal Göring first pointed out that other countries had little understanding for the political developments in Germany, and that consequently there existed the danger of Germany’s being encircled. Directing German foreign policy was therefore a difficult task. Consequently, we should endeavor to strengthen Germany from the economic and military point of view, in order to reduce the danger of Germany being attacked by a foreign power. At the same time, this would result in Germany once more exercising an increasingly important influence in European politics after she had again become strong.
“After that, Field Marshal Göring discussed the Four Year Plan. In this connection he remarked:
“By and large, Germany was cut off from the world’s sources of raw materials and she therefore had to open up sources in her own territory by dint of increased efficiency. This would be done merely in order to make Germany independent of foreign countries, and was not by any means to serve the purpose of preparing for an aggressive war.
“He then stressed, with great emphasis, that Germany’s foreign policy would have to be conducted in such a way that war should not ensue under any circumstances. The present generation was still feeling the effects of a lost World War; the outbreak of another war would be a shock to the German people. Furthermore, it was his opinion that a new war might assume great proportions, and even the outcome of a war against France alone would be questionable.
“In conclusion, he summarized his address by saying that we had to do everything in our power to make the Four Year Plan a success, and that all hardships caused thereby must be borne by the people and were justified, because its success might prevent war.
“I point out that I remember all the details of this speech so accurately because this was the first time that I was informed by a leading personality of these conditions which were so important for Germany, and because, as a result, until the war actually started, I did not believe that it would come to a war.”
In the solution of the Austrian problem no aggressive action on the part of Germany is to be seen. It took place in response to the desires of the majority of the Austrian population for reunion with the Reich. The defendant’s view of this problem can be seen from the telephone conversation he had with the Foreign Minister Von Ribbentrop on 13 March 1938. The record of this conversation has already been produced under Document Number 2949-PS, Exhibit Number USA-75. I shall quote from this conversation some passages which have not yet been read. The conversation is contained in Document Book Number 1, Pages 55-56. I am going to quote only the following passages:
“I want to say one thing: If it is said”—this is Göring talking—“that we have used pressure on the Austrian people and done outrage to their independence, it can be said that only one thing was put under pressure, but not by us, and that was the tiny little government. The Austrian people are free only now. I would simply suggest to Halifax, or to a few really important people whom he trusts, that he just send them over here so they can look at the picture. They should travel through the country, they can see everything.”
And a few sentences later:
“What state in the whole world is being harmed by our union? Are we taking anything from any state?”
Then it goes on, I skip two sentences:
“All the people are German; all the people speak German. Thus there is not a single other state involved.”
The Defendant Göring—I am referring to Page 11 of the book next to the last paragraph—did not only wish to maintain peace abroad; he also supported the preservation of peace at home. In this respect he declared in a speech he made on 9 April 1933 at the Berlin Sports Palace—it appears in the book Hermann Göring’s Speeches and Compositions, and is reproduced in Document Book Number 1, Page 35, and I am offering it as Document Number 13; I quote the first sentence:
“Oh the other hand, however, my compatriots, we ought also to be generous. We do not wish to practice petty revenge. After all, we are the victors. . . . Therefore, let us be generous, let us realize that we also thought differently at one time.”
And then a little further down:
“. . . the stronger and freer we feel ourselves to be, the more generously, the more freely are we able to disregard what happened in the past and to extend our hand with complete sincerity in reconciliation.”
I further quote from a speech of the defendant on 26 March 1938, Document Book Number 1, Page 37, likewise a quotation from Hermann Göring’s Speeches and Compositions, the exhibit number of which is 14. I quote only one sentence from it:
“. . . you were great in suffering and enduring; you were great in standing firm; great in fighting. Now you must show that you are also great in kindness, and especially so towards the many who were misled.”
His attitude towards the Church the defendant has . . .
THE PRESIDENT: Dr. Stahmer, can you not give the exhibit number?
DR. STAHMER: Yes, I think it was Number 13. I shall look again. It was Number 14.
His attitude towards the Church was expressed by the Defendant Göring in several speeches. In this respect, on 26 October 1935, he made the following statement. I am quoting from Hermann Göring’s Speeches and Compositions, Document Book 1, Page 39, Document Number 15, the following sentences:
“It rests with the Church alone whether it wishes to have peace. We, the Movement, and in particular the Government and the State, have never attacked the Church; we have assured protection to the Church, and the Church knows that it enjoys this protection also today to the fullest extent.
“Therefore, there is nothing to warrant blaming us for anything in this respect.”
And from another speech of 26 March 1938, which is also quoted from Hermann Göring’s Speeches and Compositions, Document Book Number 1, Page 41, Document Number 16, I quote the first and the second sentences:
“We do not wish to annihilate any Church, nor to destroy any belief or religion. All we want is to bring about a clear separation. The Church has its definite, very important and very necessary tasks, and the State and the Movement have other, just as important and just as decisive, tasks.”
I refer further to a document submitted by a clergyman Werner Jentsch, dated 30 October 1945, addressed to this Tribunal, Document Book Number 1, Pages 44 to 46, Exhibit Number 17.
I quote only one sentence, Figure 8:
“Hermann Göring himself, through his chief adjutant, had the following answer given to a petition for the introduction of a special chaplain’s office within the headquarters of the Air Force; that he could not at the moment do anything because Adolf Hitler had not yet made a final decision concerning the question of religion. However, he wished full freedom of religion in the Air Force, including the Christian denominations, and every member of the Air Force could choose for himself whatever chaplain or civilian pastor he desired.”
The affidavit from Gauleiter Dr. Uiberreither, dated 27 February 1946, deals with the question which I mentioned earlier and which is contained in Document Book Number 1, Page 31. It, under Figure 2, deals with the events of the night of 9 to 10 November 1938 and the knowledge thereof, as follows:
“A few weeks after the action against the Jews on the night of 9 to 10 November 1938—towards the end of November or the beginning of December 1938—Field Marshal Göring again called all the Gauleiter to Berlin. During this meeting he criticized the action in harsh words and stated that it had not been in keeping with the dignity of the nation. Moreover, it had also seriously lowered our prestige abroad. If the murder of Legation Counsellor Von Rath was regarded as an attack by Jewry against the Reich, then the German Reich had other means of countering such an attack than appealing to the baser instincts. In an orderly state no irregular mob action ought to take place under any circumstances.”
And in the last paragraph, under Number 2, it says:
“In conclusion, he asked the Gauleiter to use their entire influence to see to it that such incidents, which were detrimental to Germany, would not recur in the future.”
I can skip Page 16, Paragraph 5, as an explanation on that has already been given.
That the Defendant Göring took his duty as Supreme Administrator of Justice very seriously becomes apparent from an affidavit of Judge Advocate General Dr. Lehmann of 21 February 1946. I shall read from this affidavit in Document Book Number I, Page 106, Document Number 27, Exhibit Number Göring-6. I quote from Figure II onwards:
“II. The opinion I have of him is the following:
“The Reich Marshal originally took a negative attitude toward lawyers. He was evidently influenced by the Führer. This attitude underwent a change to the extent that he occupied himself with legal matters of the Air Force. At the end of the war the Reich Marshal was one of the high commanders who liked to consult lawyers. He took special interest in the legal department of the Air Force and attached great importance to it. He assigned to this department difficult cases for investigation concerning which he was sceptical of the reports of the other offices.”
From the following paragraph:
“The Reich Marshal had himself thoroughly informed concerning matters which I had to discuss with him. He devoted an unusual amount of time to these matters. The conferences, even when there were considerable differences of opinion, took a quiet and objective course.”
Then from Paragraph III:
“III. Concerning the legal department of the Air Force, the Reich Marshal reserved for himself the confirmation of sentences in many cases, including all death sentences.
“In passing judgment on individual cases he was inclined to show occasional leniency—in spite of the harshness demanded of all judges by the Führer. In cases of treason, and especially in moral crimes, he showed merciless severity. I know from the records that in severe cases of rape he would often reverse a judgment because he considered the death sentence was necessary. It did not matter whether the woman involved was from Germany or from the occupied territories. I believe that I remember at least one case from the records where he even changed the regular manner of execution and ordered that the soldier be hanged in the Russian village in which he had committed the rape.
“IV. When presiding at a trial the Reich Marshal was very forceful but benevolent; also in his recommendations for mercy to the Führer.
“V. In his own decisions the Reich Marshal doubtless knowingly often acted contrary to the ideas and demands of the Führer, especially in political matters, which he judged much more mildly, and in cases of excesses against inhabitants of the occupied countries, which he judged much more harshly than the Führer.
“I have often discussed the personality of the Reich Marshal with his legal adviser, a very experienced, quiet, and conscientious lawyer, as well as with the Judge Advocate General, who was distinguished by the same qualities, and was often with him. We were of one opinion about the Reich Marshal.”
In the course of this Trial, the Prosecution has repeatedly referred to the so-called Green File, which was submitted under Document Number 1743-PS. This is not, as the Prosecution maintains, a regulation for the spoliation and annihilation of the population. Its object was rather the economic mobilization and the uninterrupted operation of industry, the procurement and regular utilization of supplies, and of transport facilities in the territories to be occupied by military operations, with special consideration of the fact that Russia had no private enterprise, but only a strict centrally regulated state economy. In addition to that, vast destruction had to be anticipated in view of the Russian attitude. Nowhere does it contain an order or directive to exploit certain groups of the population beyond the necessities caused by the war.
From that Green File I have cited a whole series of passages which are to prove my statements. I cannot refer to them in detail; I should like to draw your attention only to one very characteristic passage which is on Page 94 of this Green File, second paragraph:
“Among the native population, that is, in this case, workmen and clerical employees, the best possible relationship is to be established.”
Somewhat below, on the same page:
“Endeavors must be made for good relations with the population, in particular also with the workers in agriculture.”
I am now coming to the next paragraph:
The German Armed Forces entered the war fully respecting the international conventions.
THE PRESIDENT: Where is this part?
DR. STAHMER: Page 23, Mr. President.
THE PRESIDENT: Which volume?
DR. STAHMER: In the trial brief.
THE PRESIDENT: We seem to have only 22 pages in our trial brief. Are there two volumes?
DR. STAHMER: Yes, I believe it is in the second trial brief. The division was made to accelerate the translation. May I continue?
The German Wehrmacht entered the war fully respecting the international conventions. No large-scale excesses by German soldiers were noted. Individual offenses were severely punished. However, immediately after the beginning of hostilities there appeared reports and descriptions of atrocities committed against German soldiers. These reports were carefully investigated. The result was recorded by the German Foreign Office in White Papers, which were sent to Geneva. In this way the White Book came into being which deals with the crimes against the laws of war and humanity committed by the Russian soldiers.
GEN. RUDENKO: Your Honors, Defense Counsel for Göring, Dr. Stahmer, intends to submit to the Tribunal and to read into the record excerpts from the so-called White Book which was published by the Hitler Government in 1941 in connection with some of the violations which supposedly took place concerning German prisoners of war. I consider that these excerpts cannot be submitted and read into the record here because of the following reasons:
There can be put in evidence only facts which refer to this case; there can be submitted to the Tribunal only documents which refer to the crimes which were perpetrated by the German major war criminals.
The White Book is a series of documents of invented data regarding violations which were perpetrated not by the fascist Germans but by other countries. Therefore the data contained in the White Book cannot serve as evidence in this case. This conclusion is all the more justified in that the White Book is a publication which served the purpose of fascist propaganda, and which tried by inventions and forged documents to justify or hide crimes which were perpetrated by the fascists. Therefore I request the Tribunal to refuse the reading into the record, or submitting to the Tribunal, excerpts from the so-called White Book.
THE PRESIDENT: On what theory do you justify the presentation of this evidence, Dr. Stahmer?
DR. STAHMER: The question whether it is possible and permissible to refer to these White Papers during this Trial as a means of evidence, has been discussed repeatedly. In particular it was the subject of debate when we were concerned with the question of whether I should be allowed to refer to this White Book as evidence. So far as I know, it has been admitted as evidence for the time being. It was already pointed out, during the debate which arose in regard to this subject, that, as far as evidence is concerned, it is relevant for the evaluation of the motives.
At the time I already pointed out that the crimes committed against German prisoners of war are of importance in order to understand the measures taken on the part of Germany. One cannot evaluate the underlying motives of the men who committed these offenses, or gave orders to commit them, if one fails to consider the background against which these deeds were enacted, or investigate the motives which caused them to commit these acts. And because of the importance of the motive, in order to know about the accusations raised by the Germans, it seems to me that this reference to this document is absolutely necessary.
THE PRESIDENT: Have you finished?
DR. STAHMER: Yes.
THE PRESIDENT: Well, we are here to try major war criminals; we are not here to try any of the signatory powers. Therefore you must justify the introduction of evidence against the signatory powers in some legal way.
DR. STAHMER: The presentation, if I may repeat, is made for the following reasons:
The defendants here are accused that under their leadership crimes and offenses against members of foreign armed forces were committed which are not in accordance with the Geneva Convention. On our part we plead that if harsh treatment and excesses occurred on the German side, they were caused by the fact that similar violations occurred also on the other side, and that consequently these offenses must be judged differently and not be considered as grave as would be the case if the opposite side had conducted itself correctly. Anyway, these facts are relevant for the evaluation of the motive.
THE PRESIDENT: Are you attempting to justify the introduction of this evidence on the ground of reprisals?
DR. STAHMER: Not only on the ground of reprisals, but from the point of view of the motive for the deed.
THE PRESIDENT: You are asking us to admit a document, a German governmental document. Now, under the Charter we are bound to admit documents, governmental documents, and reports of the United Nations, but it is nowhere said that we are bound to admit or are at liberty to admit documents issued by the German Government. We cannot tell whether those documents contained facts truly stated or not.
DR. STAHMER: We have here in the document books, court records of legal inquiries. These must in my opinion have the same value as evidence as official documents. They were records of court proceedings which are quoted in the White Book.
GEN. RUDENKO: I should like, Your Honors, to point out only one thing here. Defense Counsel Stahmer tries to submit these documents in order, as he says, to present his reasons which would explain the crimes of the Germans. I should like to state here that these documents, which have already been submitted to the Prosecution, and which were mentioned yesterday here during the cross-examination of the Defendant Göring, show quite clearly that the document regarding the crimes was drafted before the beginning of the war.
THE PRESIDENT: Dr. Stahmer, what are the dates of these documents that you are asking us to admit?
DR. STAHMER: I have the individual ones here. Meanwhile I am having the records looked for.
MR. JUSTICE JACKSON: I suggest, Your Honor, that I support fully the objection made by General Rudenko. I had supposed that the one thing counsel on both sides were agreed upon, when this matter was under discussion before, was that no reprisals against prisoners of war are tolerated. Even my learned adversary, Dr. Exner, agreed that that is the law.
Secondly, certainly, we must know what crimes it is that are sought to be excused. Are these the motives for what crimes? Counsel says they are bare on their motives. Was it their motive in shooting American or British fliers, that there were some violations on the part of the Russians as they claim? The only way, it seems to me, that evidence of this character is admissible would be to bring it under the doctrine of reprisal very strictly by taking specific offenses and saying: “This offense we admit, but we committed it in reprisal for certain other specified offenses.”
I submit that general allegations of this character and relating to prisoners of war are admittedly inadmissible and carry us far afield in the trial of this case.
DR. STAHMER: May I point out one more fact: For instance, I have here a telegram sent by the Foreign Office representative with the High Command of the Army to the Foreign Office, dated 12 August 1941. In other words, this is an official document, and until now the Prosecution has submitted official documents in considerable numbers which have been used as evidence against the defendants. If now an official document is being produced here to exonerate the defendants, I think that this also ought to be admitted and to the same extent, provided that this is legally permissible. The formal side of the matter is that we have here a telegram, as I said, from a representative of the Foreign Office with the Army High Command, that is, from an official authority, addressed to the Foreign Office, dated 12 August 1941. It says here, for instance: “In the captured operational report Number 11, of the 13th of last month, 10 o’clock, of the staff of the 26th Division, 1 kilometer west of Slastjena in the forest north of Opuschka it says: ‘The enemy left about 400 dead on the battlefield . . .’”
THE PRESIDENT: You must not read it, as we are discussing its admissibility.
DR. STAHMER: I beg your pardon. I misunderstood you, Mr. President, you asked me what document . . .
THE PRESIDENT: The date of the White Book.
DR. STAHMER: The date of the White Book, I see, we misunderstood each other; it is Berlin, 1941.
THE PRESIDENT: That is not a date, that is a year.
DR. STAHMER: It says, “Bolshevist Crimes against the Laws of War and Humanity. Documents compiled by the Foreign Office, First Volume, Berlin, 1941.” That is the name of the document; the date of its publication is not apparent from the book itself. The individual documents and preliminary proceedings are contained in this book, followed by a number of records which have individual dates.
THE PRESIDENT: Then there is nothing to show when that document was communicated, either to the Soviet Government or when it was communicated—if it was—to Geneva or to the Protecting Power.
DR. STAHMER: It was forwarded to Geneva. It was duly handed to the Red Cross in Geneva.
THE PRESIDENT: When?
DR. STAHMER: In 1941. I had proposed to obtain these books from Geneva and to bring in information from the Geneva Red Cross.
Mr. President, may I once more point out that it is an official document published by the Foreign Office. It is a series of reports compiled in an official publication.
THE PRESIDENT: That is not the real point that the Tribunal is considering. The question is, how can you justify in a trial of the major war criminals of Germany, evidence against Great Britain, or against the United States of America or against the U.S.S.R. or against France? If you are going to try the actions of all those four signatory powers, apart from other considerations, there would be no end to the Trial at all, and their conduct has no relevance to the guilt of the major war criminals of Germany, unless it can be justified by reference to the doctrine of reprisal, and this cannot be justified in that way. And therefore the Tribunal considers the document is irrelevant.
DR. STAHMER: I now turn to the subject of aerial warfare, evidence on Page 25 of my trial brief. Relevant to the question of guilt is the question whether the German Air Force started to attack open cities only after the British Air Force had carried out a great number of raids against nonmilitary targets.
SIR DAVID MAXWELL-FYFE: My Lord, I object to this evidence. I was not quite sure whether Dr. Stahmer had passed dealing with this evidence with regard to the air war, or whether he was illustrating his argument. I want to make it quite clear that I object to the first part of it as being too remote, that is, the evidence about the various conferences which took place with regard to the regulation of aerial warfare.
With regard to the second part of the evidence, I object to the documents which purport to show that Great Britain attacked nonmilitary targets. Where I have been able to check the allegations, I find there is a complete dispute as to whether the targets were military or nonmilitary targets, and therefore I cannot accept the German official reports as being evidence of any purported value on their part, and I respectfully submit that, unless the Tribunal had authority from the Charter, it ought to take the same line.
I make these two additional points to the points raised by my learned friends, General Rudenko and Mr. Justice Jackson, on the general question. I do not want to take up more time with the argument by developing that point. I will be pleased to help with any aspect of it.
THE PRESIDENT: It seems to me, Dr. Stahmer, that this matter stands upon exactly the same footing as the matter upon which we have just ruled.
DR. STAHMER: That is right. I believe that from this book on aerial warfare one document is of importance in my opinion, which is quoted on Page 27. It is merely a statement by the French General Armengaud concerning the fact that the German Air Force operated in Poland in accordance with the laws of warfare and attacked military targets exclusively. I believe there will be no objection to reading at least this quotation. It is Page 27.
THE PRESIDENT: Page 27 of the trial brief?
DR. STAHMER: Page 27 of the trial brief. There I give a quotation from General Armengaud, the French Air Attaché in Warsaw, of 14 September 1939.
THE PRESIDENT: Yes.
DR. STAHMER: There it says: After the outbreak of war the German Air Force under its Commander-in-Chief, Göring, did not, by order of Hitler, attack any open cities in Poland; this was confirmed by Buttler, the British Under Secretary for Foreign Affairs on 6 September 1939, and by the French Air Attaché in Warsaw on 14 September 1939 (Documents 41 and 46 of the White Book). The latter, General Armengaud, says literally:
“I must emphasize that the German Air Force acted according to the laws of war; it attacked military targets only and, if civilians were often killed or wounded this happened because they were near the military targets. It is important that this should be known in France and in England, so that no reprisals will be taken where there is no cause for reprisals, and so that total aerial warfare will not be let loose by us.”
THE PRESIDENT: Dr. Stahmer, what is the origin of that?
DR. STAHMER: May I have a look? It is contained in the document concerning the bombing war, Number 46, “Report of the French Air Attaché in Warsaw, General Armengaud.” It is dated 14 September 1939, and then comes the report from which I have already quoted.
THE PRESIDENT: Yes.
DR. STAHMER: I have submitted it.
THE PRESIDENT: Yes.
DR. STAHMER: And now I proceed to Page 30 of the trial brief. And in Paragraph 10, I refer to the creation of the Secret State Police by the Defendant Göring. A passage is quoted there from the book, Hermann Göring, the Man and His Work, Document Book 2, Page 53 and 54. I submit it as Document Number 44, and I quote from it the following passage:
“It can be seen from the big Stettin trial and also from others, that Göring took ruthless measures against men who acted on their own authority against his instructions.
“The Prime Minister looked into hundreds of individual cases in connection with the supervision of political prisoners. He did not wait until he was asked; the offer was made on his own initiative.
“On the occasion of the Christmas amnesty of 1933, he ordered the release of nearly 5,000 prisoners from the concentration camps. ‘Even they must be given a chance.’ It would have been only too understandable if those released had found doors and gates closed to them whichever way they turned. That, however, would not be in keeping with the spirit of this act of mercy. Nobody was to consider himself shut out. Therefore, Göring in a clearly worded decree ordered that no difficulties were to be placed in the way of those released, by the authorities or by the public. If this action were to have any point, every effort must be made to take back these people, who had sinned against the state, into the community again as full fellow Germans.”
And from the last paragraph, I read the second sentence:
“In September 1934 he ordered the release of an additional 2,000 prisoners in a second big amnesty.”
In this connection I beg to offer a telegram which I received a few days ago, and I request that it be admitted as evidence. It is an unsolicited telegram originating from a certain Hermann Winter, Berlin W 20, Eisenach Street, 118. It has been included in the document book which I submit. I believe it is the last document in my document book.
MR. JUSTICE JACKSON: If we are to examine unsolicited correspondence or telegrams, if it is to become evidence, I have a washbasket full of it in my office that, if that kind of material could be used as evidence in this case without any verification, I could bring here in rebuttal. It does seem to me that we should know something more about this than that just a wire has come in from some unknown person who may not even have been the signer; maybe it is an assumed name. I think we are entitled to a little better foundation than that.
THE PRESIDENT: Dr. Stahmer, have you any other basis?
DR. STAHMER: I have no other basis, and I beg to have your decision whether this telegram is admissible as evidence.
THE PRESIDENT; Well, I do not think we could admit it simply as a telegram which has been received by you from an unknown person.
DR. STAHMER: I request your decision. Is it being refused? I am coming to the end, Page 34.
THE PRESIDENT: Of the trial brief?
DR. STAHMER: Page 34 of the trial brief, Figure 12. With respect to the question of whether one could blame the defendants for having had confidence in Hitler and following him, it is important to know Churchill’s attitude, expressed in his book Step by Step, and I am quoting two passages, Document Book Number 2, Page 46.
MR. JUSTICE JACKSON: This is in 1937, before the events with which we have mainly been dealing here. I do not think it is very important. Mr. Churchill’s speeches are well known, but I do think that we waste time going into Mr. Churchill’s opinions back in 1937, before the event, when he is doubtless in the same position as Dahlerus, the witness, with reference to his knowledge of what was going on behind the scenes.
THE PRESIDENT: Inasmuch as we have already received this book and some passages from it, you may state this.
DR. STAHMER: I may state it? Thank you. On Page 187, in an article, “Friendship with Germany,” of 17 September 1937, is written:
“One can condemn Herr Hitler’s system and still marvel at its patriotic achievement. Should our country be defeated, I could only desire that we would find an equally indomitable champion who would give us our courage again . . .”
THE PRESIDENT: I only said that you could read it because you had read from this book of Mr. Churchill’s, but at the same time it seems to be absolutely irrelevant.
DR. STAHMER: I did not—Oh, I see. May I refer to the quotation on Page 323 which is also a description of Hitler’s personality. I consider it of importance especially because I attach considerable weight in particular to Churchill’s judgment. It says: “Our leadership must at least . . .”
THE PRESIDENT: But, Dr. Stahmer, do you not think we have heard sufficient about Hitler’s personality?
DR. STAHMER: Yes, but not from that source. If the Tribunal . . .
THE PRESIDENT: Presumably the Defendant Göring knows more about Hitler than Mr. Churchill.
DR. STAHMER: If the Tribunal does not wish it to be read, then of course, I will abide by that wish.
THE PRESIDENT: I think it is cumulative.
DR. STAHMER: Well, in that case I have finished. I may still of course keep in reserve the evidence which I have not been able to submit up to now, about which I spoke this morning. I said this morning, I had a certain amount of evidence which I have not been able to submit because I have not received it yet.
THE PRESIDENT: Yes.
MR. JUSTICE JACKSON: Would this be a convenient time, if Your Honor please, to make the record concerning the documents which I was to offer formally for the record?
THE PRESIDENT: I do not quite follow? What documents are you referring to?
MR. JUSTICE JACKSON: The ones used in cross-examination . . .
THE PRESIDENT: Yes, certainly.
MR. JUSTICE JACKSON: . . . which Your Honor spoke to me about.
THE PRESIDENT: Yes.
MR. JUSTICE JACKSON: I understand they have been handed to the Secretary and they have been marked.
The affidavit to Halder is USA-779. It is offered.
Document Number 3700-PS is offered as Exhibit USA-780; Document Number 3775-PS is offered as Exhibit USA-781; Document Number 3787-PS is offered as Exhibit USA-782; Document Number 2523-PS is offered as Exhibit USA-783; Document Number 014-PS is offered as Exhibit USA-784; Document Number 1193-PS is offered as Exhibit USA-785; Document Number EC-317 is offered as Exhibit USA-786; Document Number 3786-PS is offered as Exhibit USA-787; Document Number 638-PS is offered as Exhibit USA-788; Document Number 1742-PS is offered as Exhibit USA-789.
M. CHAMPETIER DE RIBES: Mr. President, Dr. Stahmer in his presentation did not speak of Document Number Göring-26. It concerns a note from the German Government to the French Government relating to the treatment of German prisoners of war in France dated 30 May 1940. The reasons which made us reject the White Book from the discussion make it necessary to reject this document too. I gather that Dr. Stahmer realized that and, therefore, did not speak of it any more, but I would like him to be assured that this document has been definitely rejected from the discussion.
DR. STAHMER: I have not mentioned the document. I withdraw it.
THE PRESIDENT: I call on Counsel for the Defendant Hess.
DR. SEIDL: Mr. President and Your Honors: Before commencing the submission of evidence I have to make the following remarks at the request of the Defendant Hess:
The Defendant Hess contests the jurisdiction of the Tribunal where other than war crimes proper are the subject of the Trial. However, he specifically assumes full responsibility for all laws or decrees which he has signed. Furthermore, he assumes responsibility for all orders and directives which he issued in his capacity as Deputy of the Führer and Minister of the Reich. For these reasons he does not desire to be defended against any charges which refer to the internal affairs of Germany as a sovereign state. That applies in particular to the relations between Church and State, and similar questions. I shall, therefore, submit evidence only with reference to questions in the clarification of which other countries can have a justified interest. This applies, for instance, to the tasks and activities of the foreign organization of the NSDAP. Beyond that, evidence will be submitted to the Tribunal only insofar as this is necessary to ascertain the historical truth. This applies, among other things, to the motives which caused Rudolf Hess to fly to England and to the purposes for which he did it.
The evidence which I have prepared is collected in three document books. In view of the acceleration of the Trial desired by the Tribunal, I shall forego quoting any documents whatsoever from the first book and ask the Tribunal to take cognizance only of those parts of the document book which have been marked in red. I shall read only the affidavit which is at the end of the document book, and that is the affidavit of the former secretary of the Defendant Rudolf Hess, Hildegard Fath, and I shall read furthermore . . .
THE PRESIDENT: Dr. Seidl, if your are passing from your opening remarks and going to deal with the documents, I think it is right to point out to you that there can be no challenge to the jurisdiction of this Court, here. Article 3 provides that the Tribunal shall not be challenged by the Prosecution or by the Defendants or their Counsel, and the Tribunal cannot hear any argument upon that subject. Now you can go on with your documents.
DR. SEIDL: There will furthermore be read from the second volume the record of a conversation between the Defendant Rudolf Hess and Lord Simon, which took place on 10 June 1941 in England. So as to prevent interruption in the reading of the documentary evidence, I shall today read only the affidavit of the witness Hildegard Fath, Page 164 of the document book. The affidavit reads as follows:
“Having been advised of the consequences of a false affidavit, I declare under oath the following, which is to be submitted to the International Military Tribunal in Nuremberg:
Then come the “Personal Data;” and I am now quoting literally from Figure 2:
“I was employed as private secretary of the Führer’s Deputy, Rudolf Hess, in Munich, from 17 October 1933 until his flight to England on 10 May 1941.
“Beginning in the summer of 1940—I cannot remember the exact time—I had, by order of Hess, to obtain secret weather reports about weather conditions over the British Isles and the North Sea, and to forward them to Hess. I received the reports from a Captain Busch. In part I also received reports from Miss Sperr, the secretary of Hess with his liaison staff in Berlin.
“Hess left a letter behind on his departure by air for England, which was handed to the Führer at a time when Hess had already landed in England. I read a copy of this letter. The letter began with words more or less like this:
“‘My Führer; when you receive this letter, I shall be in England.’ I do not remember the exact wording of the letter. Hess occupied himself in the letter mainly with the proposals which he wanted to submit to England in order to achieve peace. I can no longer remember the details of the proposed settlement. I can however state definitely that no word was mentioned about the Soviet Union or about the idea that a peace treaty should be concluded with England in order to have the rear free on another front. If this had been discussed in the letter, it certainly would have been impressed upon my memory. From the content of the letter the definite impression was to be gained that Hess undertook this extraordinary flight in order to prevent further bloodshed, and in order to create favorable conditions for the conclusion of a peace.
“In my capacity as secretary of long standing, I have come to know Rudolf Hess quite well and his attitude towards certain questions. If I am told now that, in a letter of the Reich Minister of Justice to the Reich Minister and Chief of the Reich Chancellery, Dr. Lammers, of 17 April 1941, it was mentioned that the Führer’s Deputy had discussed the introduction of corporal punishment against Poles in the annexed Polish territories, I cannot believe that this attitude of the department headed by Hess was due to any personal decision of his. Such a proposal would be totally contradictory to the behavior and attitude which the Führer’s Deputy displayed with regard to similar questions on other occasions.”
I shall refrain from reading the affidavit of the witness Ingeborg Sperr, Page 166 of the document book.
From the first two volumes of the document book I wish still, as I have already said, to read only parts from a discussion between Hess and Lord Simon. However, in order to prevent the report of this discussion from being interrupted, I ask permission of the Tribunal to read this document to the Tribunal next Monday?
THE PRESIDENT: Yes, certainly. You mean not to go on any more now?
DR. SEIDL: With the permission of the Tribunal, I shall stop now.
THE PRESIDENT: Have you no other document you wish to produce?
DR. SEIDL: I beg your pardon? Yes, there are some documents in Volume 3 of the document book; but, however, I should prefer to submit these documents coherently to the Tribunal.
THE PRESIDENT: Very well, Dr. Seidl, if you wish it, we will adjourn now.
[The Tribunal adjourned until 23 March 1946 at 1000 hours.]
EIGHTY-NINTH DAY Saturday, 23 March 1946
Morning Session
THE PRESIDENT: Have you consulted the Defense Counsel as to the order in which they wish to take these supplementary applications?
SIR DAVID MAXWELL-FYFE: I have the order which the Tribunal has, beginning with Streicher.
THE PRESIDENT: Perhaps that would be the most convenient then. Is Streicher’s counsel ready? Dr. Marx?
SIR DAVID MAXWELL-FYFE: Yes; Dr. Marx is here.
DR. HANNS MARX (Counsel for Defendant Streicher): Your Honors, Mr. President, on behalf of the Defendant Streicher I have applied for the calling of Fritz Herrwerth as a witness before the Tribunal. This witness is a man who has been in the immediate vicinity of the Defendant Streicher for years and who, because of that, is in a position to offer information on all political events that can in many ways have a bearing on the decision and judgment in the case of Streicher. In particular, I have applied for this witness because he was present on that night of 9 to 10 November when the Defendant Streicher had a conference with the SA leader Von Obernitz, at which Von Obernitz informed Streicher that he, Obernitz, had received the order to carry out demonstrations against the Jewish population during that night. Streicher will establish that he then told Herr Von Obernitz that he, Streicher, kept himself aloof in this affair, that he considered these demonstrations a mistake, and disapproved of them. Obernitz thereupon stated that he had received the order from Berlin and had to carry it out. It can . . .
THE PRESIDENT: Sir David, do you object to this alteration of our previous order?
SIR DAVID MAXWELL-FYFE: My Lord, we have not seen any change in the situation as the Tribunal decided it, but we do not want to press against this witness being called orally, except that we must point out that there is not any change. All these matters were gone into by the Tribunal. If the Tribunal feels that it would be better that the witness should be called orally, then the Prosecution will not take any objection.
THE PRESIDENT: Have these interrogatories been drawn up?
DR. MARX: No, they have not yet been completed. I beg your pardon, Mr. President; is this question put with reference to the witness Herrwerth?
THE PRESIDENT: Yes.
DR. MARX: Yes, the questions to the witness have been completed; the questions which the Defendant wishes . . .
THE PRESIDENT: Dr. Marx, we will reconsider that. You have got something else, haven’t you, Dr. Marx? You want some document; you have got a document you are asking for, have you not, or don’t you ask for that?
DR. MARX: May I speak, Mr. President? Actually, I should like to ask that both the documents referred to be placed at my disposal. That is, the matter of the suit against Karl Holz in the year 1931, and the files of the disciplinary proceedings against Julius Streicher, concerning which I am unfortunately not able to give the year. It might be 1931.
THE PRESIDENT: But, Dr. Marx, did we not, with the agreement of the Prosecution, strike out a passage from a document which was critical of the Defendant Streicher? Does that not render this evidence entirely irrelevant?
SIR DAVID MAXWELL-FYFE: That was about the witness Lothar Streicher, the son, about an interview that took place in prison at which there were certain allegations, and these were struck out by the consent of the Prosecution. I confess I don’t know whether the disciplinary proceedings in the matter of Streicher . . .
DR. MARX: I beg your pardon, Mr. President. May I speak? The matter in which Lothar Streicher figures is from the Göring report concerning the visit or the conversation Streicher had with three youthful criminals, during which Streicher was supposed to have taken an ugly or improper attitude. Lothar Streicher was named as a witness by me to testify that at that time no such thing happened. That is in connection with the report of the Göring commission, whereas the other matter is concerned with a disciplinary action. This proceeding was completed in 1931 before the disciplinary court at Munich.
THE PRESIDENT: Wasn’t it all in connection with the same alleged offense by Streicher?
SIR DAVID MAXWELL-FYFE: My Lord, I have the details now, if I might read them. I think it makes them clear. The first application in relation to the proceedings against Karl Holz reads:
“The documents requested herein will be used to prove the following facts:
“During these proceedings Dr. Erich Bischof, an authority on the Talmud, from Leipzig, gave evidence under oath that there was, in the Jewish religious book Sohar a law allowing ritual murder.”
THE PRESIDENT: But, Sir David, there are two different applications, aren’t there? There is this application with reference to the Jewish religious book, and then there is the other application with reference to the trial of Karl Holz.
SIR DAVID MAXWELL-FYFE: As I understood it, My Lord, this application is headed, “Files in the Trial in the Matter of Karl Holz,” and one of the pieces of evidence in the trial of Karl Holz, according to Dr. Marx’s application, was the evidence of Dr. Erich Bischof as to the Talmud; and the application goes on to say that “these facts are relevant to my defense for the following reasons: The accused wishes to prove with these court records”—that is, the record from the trial of Holz—“that Der Stürmer did not deal with the question of ritual murder contrary to his better knowledge.” That is, as I understand it, that Der Stürmer dealt with ritual murder according to the knowledge of Dr. Bischof, as expressed at that trial. That, in my respectful submission, would be quite irrelevant.
THE PRESIDENT: What is the date of this religious book? It was written in the Middle Ages, wasn’t it?
SIR DAVID MAXWELL-FYFE: I think so, My Lord, and it was produced on 30 October and 4 November 1931, by Dr. Bischof.
Then, My Lord, the second one—just to get it clear, so Your Lordship will have it in mind—it is the files of the disciplinary proceedings in the matter of Streicher at the disciplinary court at Munich.
“The documents requested herein will be used to prove the following facts:
“The accused wishes to prove, with the production of these files, that he was not dismissed from his profession because of indecent assault, but on political grounds, and with the granting of part of his salary.”
I myself don’t see the relevance of it, but perhaps Dr. Marx can inform the Tribunal.
THE PRESIDENT: Is it charged against him in the Indictment?
SIR DAVID MAXWELL-FYFE: No, there is nothing about his criminal record other than on anti-Jewish grounds.
THE PRESIDENT: In that connection the Prosecution agreed to strike out any reference to that incident, didn’t it?
SIR DAVID MAXWELL-FYFE: I am not sure that it is the same incident, but the Prosecution did agree to strike out the only reference to it that appeared in the record, to my knowledge—to any reference to a matter of that kind. That was as to the treatment of certain boys in prison.
DR. MARX: Mr. President, may I, to clarify the matter, make a few statements now. The defense counsel for the Defendant Streicher applied to have the file on this disciplinary case produced for the following reason:
Streicher was asked by a Russian interrogator whether he had been dismissed from his office because of moral delinquency and therefore it is necessary to have the file on this disciplinary case produced. This file shows that Streicher was not dismissed from his school post because of indecent conduct, but because of his political attitude. That is one point. And quite apart from that is the matter in which Lothar Streicher is supposed to act as a witness. That was the matter mentioned in the report of the Göring commission concerning the three young delinquents who were visited by Streicher, and on which occasion he is supposed to have been guilty of indecent manipulations or gestures.
I come now to the question of Dr. Bischof, Mr. President. This matter concerns the following: Streicher is accused, with reference to quotations from the Talmud, or quotations referring to ritual murder, either of having consulted an incorrect translation, or of not having ascertained facts sufficiently, in a frivolous and grossly negligent way.
THE PRESIDENT: When you say, Dr. Marx, that he is being reproved with that, there is no such charge in the Indictment. No such charge has been made in the course of the case of the Prosecution. The charge against him is that he provoked the German people to excesses against the Jews, not by misquoting some Jewish book, but by referring to Jewish books of the Middle Ages.
DR. MARX: I take the liberty of drawing attention to the fact that, on the contrary, the Prosecutor, Lieutenant Colonel Griffith-Jones, when he presented the case against Streicher, referred to this point explicitly and accused Streicher of having here, against better knowledge, quoted passages from the Talmud. And consequently, it is important that this file against Holz is consulted, because in it is established, by the witness Dr. Bischof, how the quotations came about. This Dr. Bischof is a recognized scholar. But, Mr. President, the whole matter could still be shortened if the Prosecution would state today that this whole matter regarding the ritual murder is not to be made a subject of the Indictment. There would then be eliminated from the trial an element which could only extend it in any case, and which can play no important part against the defendant anyhow, and has nothing to do with the actual Indictment.
SIR DAVID MAXWELL-FYFE: I want to make that position perfectly clear. The important point in the case for the Prosecution is the use of the suggestion against the Jews that they committed ritual murder. If someone takes something out of a book in the Middle Ages and reproduces it so that it will be understood by the ordinary reader as being a practice of Jews, or a reason for disliking Jews, then the Prosecution says that that is an evil method of stirring up hatred against the Jews. Whether anyone can find in the Jewish book of the Middle Ages some remark about ritual murders is really immaterial. The gravamen of the case for the Prosecution is using the ritual murder accusation as a method for stirring up hatred against the Jews today. That is the case which the defendant has to meet.
THE PRESIDENT: We will consider the application.
DR. MARX: I beg your pardon! I consider it necessary, nevertheless, to answer at least very briefly the statements of the preceding speaker, Sir David Maxwell-Fyfe. The fact is that the special number of Der Stürmer under discussion makes reference in particular to a trial which took place in 1899 at Piseck, in Moravia or Bohemia, and during which this question also figured. It is thus not true that the Defendant Streicher had as his basis only medieval superstition, but on the contrary, that he dealt with material taken from modern legal history, using material, the genuineness of which I cannot establish, but which I cannot simply dispose of as incorrect and which the Tribunal also would probably have to investigate. That is why I said that this entire matter ought not to be touched at all. For here it is a question merely of whether Streicher was acting in good faith or not, and if he can say that trials of that kind have taken place and the judges actually were not unanimous, then one cannot say in fact that he acted against his better knowledge. That is what is essential in this matter. Thus, I personally would prefer to have this matter eliminated, if the Prosecution would no longer consider this whole subject matter as part of the Indictment.
THE PRESIDENT: We will consider the application.
SIR DAVID MAXWELL-FYFE: The next one on the list that I have, My Lord, is an application by the Defendant Göring for a Major Buex; spelled “B-u-e-x.” I asked Dr. Stahmer and he was good enough to tell me that that was the same gentleman who was asked for as a witness by the Defendant Jodl, under the spelling of “B-u-e-c-h-s.” I understand the Tribunal has granted him as a witness to the Defendant Jodl, and Dr. Stahmer will have the opportunity of asking him the questions then.
DR. STAHMER: I agree.
SIR DAVID MAXWELL-FYFE: The next is an application by the Defendant Von Ribbentrop. He requests Herr Hilger as a witness. The grounds of the application are that Dr. Horn and the Defendant Ribbentrop found that the witness Gaus, for whom he had asked, was not able to give as much assistance as had been expected, and that they desired this witness Hilger in addition. The view of the Prosecution is that the defendant should have either Hilger or Gaus as a witness and an interrogatory to the other one, and we have no objection to the witness Hilger being brought to Nuremberg for consultation.
DR. SIEMERS: I am deputizing at the moment for Dr. Horn, defense counsel for the Defendant Ribbentrop. Actually, I had wanted to ask Sir David to postpone this matter a little, as I have had Dr. Horn asked to come here himself. We, the Defense Counsel, were not informed which applications would be dealt with today. Hence Dr. Horn is not present at the moment. But I think that, if the Tribunal agree, the matter can perhaps be dealt with now, as far as I know, but I have to speak with Dr. Horn first, at any rate. I am speaking without prejudice.
THE PRESIDENT: I do not know what you mean about not being informed about these applications. I made the statement yesterday that supplementary applications for witnesses and documents would be taken this morning. I do not understand your saying you did not know what would be done. The Tribunal has no objection to it being taken later when Dr. Horn is here, if he comes in time.
DR. SIEMERS: Yes, and may I suggest that if Dr. Horn does not return in time, I am ready to settle the matter for him; by then I will be in a position to do so.
THE PRESIDENT: Very well.
DR. MARX: Pardon, Mr. President; may I make one more very brief statement? Streicher just informs me that I should state that he will forego the witness Lothar Streicher. If, therefore, the calling of this witness was considered, then I state that the Defense will withdraw application for him.
THE PRESIDENT: Hasn’t that been allowed—Lothar Streicher?
SIR DAVID MAXWELL-FYFE: He was the witness who was not to be allowed on condition that the Prosecution applied to strike out this passage, and we agreed to that.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: The next is an application for the Defendant Von Papen.
THE PRESIDENT: One moment, Sir David. Has that letter about withdrawing the statement about the witness Lothar Streicher been read into the record?
SIR DAVID MAXWELL-FYFE: I do not know if it has been read into the record. It has been sent to the Court.
THE PRESIDENT: It had better be put in as a document.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases. My Lord, the next is the application for the Defendant Von Papen, who requests that the witness Josten, who has been approved by the Tribunal as a witness, be changed to an affidavit, which counsel already has, and Dr. Kubuschok requests that Kroll be allowed as a witness. My Lord, the position with regard to Kroll was that the Prosecution submitted that he was not relevant, but the Tribunal allowed interrogatories for Kroll and, therefore, the Prosecution accepts the decision of the Tribunal that he is therefore relevant. On that basis, as Dr. Kubuschok is dropping one witness, we feel that we cannot object to his being brought as an oral witness, since the Tribunal has decided that his testimony is relevant.
THE PRESIDENT: Yes; and as to Josten, has the affidavit been submitted to you?
DR. KUBUSCHOK: Yes, I have just received it with his signature. The witness Josten has appeared today and has signed the affidavit.
THE PRESIDENT: All I am thinking of is that the Prosecution may hereafter want to have him called for cross-examination.
SIR DAVID MAXWELL-FYFE: We have not seen the affidavit yet, My Lord; I am sorry. I will look into that.
THE PRESIDENT: The result of that would be that both witnesses would have to be here.
SIR DAVID MAXWELL-FYFE: I appreciate that, My Lord.
THE PRESIDENT: I was taking it that Dr. Kubuschok meant an affidavit and not an interrogatory.
DR. KUBUSCHOK: Yes, a sworn affidavit.
SIR DAVID MAXWELL-FYFE: Perhaps, My Lord, the Tribunal would postpone a decision on this point until I have had a chance to consider the affidavit, and then I will communicate with Dr. Kubuschok and with the Tribunal.
THE PRESIDENT: Yes, very well.
DR. KUBUSCHOK: May I, Mr. President, mention yet another case. I had been granted the witness Von Tschirschky, who is at present in England, for oral interrogation. The witness has written to the Tribunal that it is difficult for him to be absent from England at the moment, and requests that his evidence be taken in writing. I am agreeable to this and have drafted an interrogatory which is now being submitted to the Tribunal. This, again, would mean another witness gone, Tschirschky, as well as Josten, so that I request earnestly that the witness Kroll be granted as an oral witness, since a considerable saving of time has now been accomplished.
THE PRESIDENT: Sir David, you have no objection to that?
SIR DAVID MAXWELL-FYFE: No, I have no objection to that. I may have to consider certain cross-interrogatories for the witness, but that will not affect the position of Dr. Tschirschky.
Next is the application by the Defendant Rosenberg for a document—Hitler’s letter to Rosenberg dated 1924. This document is in regard to Rosenberg’s anti-Semitism. As far as I know, the Prosecution has not any of these documents, but Dr. Thoma can explain what he wants. I have no objection to having these documents if they can be found.
DR. THOMA: Mr. President, may I first draw your attention to the fact that my application for a document—Rosenberg’s letter to Hitler, in which Rosenberg asks not to be a candidate for the Reichstag—has since been handed to me. This application has thus been settled. Secondly, I have . . .
THE PRESIDENT: Just a moment, Dr. Thoma. You withdraw that application because you have that letter, do you not? You said, “With that, the application has been settled.” Do you mean that you withdraw that application?
DR. THOMA: No, Mr. President. The Tribunal has already permitted me to offer this document as soon as it was found. It has since been found.
Furthermore, I should like to draw attention to the fact that the document in which Rosenberg writes to Hitler and asks to be relieved from the position of editor-in-chief of the Völkischer Beobachter has been allowed me likewise. But I have not yet received it.
Thirdly, may I ask that two further documents be granted me. Two documents, which, during interrogation, have already been shown to Rosenberg by the Prosecution. The first is a decree of Hitler sent to Rosenberg in June 1943, in which Hitler instructs Rosenberg to limit himself to the principal matters in Eastern questions . . .
THE PRESIDENT: Dr. Thoma, you are now dealing with applications which are not in writing; are you not?
DR. THOMA: Yes, I have already submitted them in writing.
THE PRESIDENT: I have only two applications here as far as I can see.
One with reference to Hitler’s letter to Rosenberg dated 1924, and the other with reference to three books about Jews. These are the only two applications I have got.
DR. THOMA: Mr. President, I already made these applications during open session, and as far as I know, I had submitted them in writing even before making them in open session. I have in fact received an answer as regards two documents applied for. But for two applications the reply is still outstanding. Hence I request the Tribunal’s permission to submit these two applications in writing again.
THE PRESIDENT: Yes, you will be allowed to if you will make them clear. You ask for two further documents, and the first one, I understood you to say, was a decree dated June 1943. Is that right?
DR. THOMA: That is correct. And the next document is a letter from Hitler to Rosenberg in which Hitler informs Rosenberg of the reasons for his not wanting to work in the Reichstag and for not wanting to participate in the elections. But I do recall that I submitted this application in writing, and I beg to submit it again now.
THE PRESIDENT: Yes, the application will be considered. Are you referring to the document of 1924, the letter from Hitler to Rosenberg dated 1924?
DR. THOMA: Yes, 1923 or 1924. Then, Gentlemen, I have also this fundamental application regarding the question of anti-Semitism. I have asked here to be permitted only a few historic writings, these on the question as to why the Jewish problem has existed in Germany, I believe even from the 8th century, and why persecutions of the Jews recur persistently in Germany. I want thereby to establish that in this connection we are concerned with some tragic fact which we do not rationally understand. By producing evidence both from Jewish and from Christian theological literature, I want to prove that we are not concerned with the fact that the German people were misled into exterminating the Jews, and that the influence of the National Socialist Party was such as to bring the German people to such hate for the Jews, but that we are rather here facing irrational conditions and that this is recognized both in Jewish and Christian literature. I wish also to establish that an intellectual dispute between Jewry and the German race has existed on a purely intellectual level, and in fact in a purely intellectual way, because actually Moritz Goldstein said in 1911—I mention only one example—that the Jews in Germany administer the intellectual wealth of Germany. Thus here it is a matter of depicting the problem in Germany, the role of Judaism in the cultural history of Germany, and why such a drastic contrast between Judaism and the German race exists here in Germany. I intend to quote only literature in this connection, but I believe that my statements in the closing speech will not be sufficiently credible to the Court if I have not also quoted scientific—recognized scientific—writings. That is all with which I am concerned.
THE PRESIDENT: Dr. Thoma, your applications will be considered.
SIR DAVID MAXWELL-FYFE: The next application is on behalf of the Defendant Speer, who requests a number of documents dealing with the Central Planning Committee. I have not actually had the opportunity of checking these with the exhibits, but if, as I believe, they are the ones which were put by Mr. Justice Jackson to the Defendant Göring in cross-examination, I think they are all either exhibits or the documents which the Prosecution have, and they relate to the Defendant Speer. If he does not have them, then we should do our best to give them copies.
THE PRESIDENT: Sir David, you said they all had been put to the Defendant Göring in cross-examination and were either exhibits or documents; but if they have been put to the Defendant Göring, then they should be exhibits . . .
SIR DAVID MAXWELL-FYFE: Yes, Your Honor, they should be exhibits; I have not had the opportunity of checking them, but if they have been presented in Court they must be exhibits.
The next one is an application on behalf of the Defendant Seyss-Inquart for interrogatories to be submitted to Dr. Uiberreither. The Tribunal will remember he was Gauleiter of one of the outstanding Austrian Gaue, and a collaborator in the National Socialist Movement in Austria. I have no objection to these interrogatories being submitted.
THE PRESIDENT: He gave another affidavit, did he not, a day or two ago?
SIR DAVID MAXWELL-FYFE: Yes, Sir. That was for another defendant, Göring. Dr. Uiberreither obviously has some knowledge of the Austrian position. The only question is as to the requirements and the special subject of the interrogatories. I don’t know. I have to reserve my position as to actual wording of questions.
THE PRESIDENT: Have you seen the interrogatory?
SIR DAVID MAXWELL-FYFE: No, My Lord.
THE PRESIDENT: They have been deposited before us.
SIR DAVID MAXWELL-FYFE: I am sorry, My Lord; I had seen them. It is my mistake. Dr. Uiberreither right here comes into the picture once or twice. I had seen this application. And the only objection the Prosecution felt was to the somewhat leading form of the questions that were put, and perhaps my friends, Mr. Dodd and Colonel Baldwin, could have a word on that point with Dr. Kubuschok, or whoever represents Seyss-Inquart, before they are actually delivered.
THE PRESIDENT: Very well.
SIR DAVID MAXWELL-FYFE: The next one is an application in regard to the Defendant Sauckel. Dr. Kubuschok tells me there is another application on behalf of Seyss-Inquart which was not on the form in front of me. [Turning to Dr. Kubuschok.] Perhaps you would develop that?
DR. KUBUSCHOK: The Defendant Seyss-Inquart is requesting permission for an interrogatory to the witness Bohle. The examination of this witness has been refused by the Tribunal on the grounds that it would be cumulative evidence. The Defendant Seyss-Inquart requests again to have these matters of evidence clarified, this time only by way of an interrogatory. The witness is essential, particularly as the subject of his evidence cannot be established by means of other direct witnesses. The other witnesses who have been named in this connection can only state what they have been told by Bohle. Regarding the actual events, Bohle is the only man who can make statements based on his own knowledge.
THE PRESIDENT: Dr. Kubuschok, if other witnesses who have been granted are going to give what we call hearsay evidence, from what they heard from Bohle, why wasn’t Bohle asked for instead of one of these other witnesses?
DR. KUBUSCHOK: I do not know the intention of my colleague who is defending Seyss-Inquart. All I know is that he has asked supplementarily for indirect witnesses here, but I am told now that Bohle is considered as a direct witness, and this because it must be expected that the other witnesses, for whom this matter is not so important, may not remember some points.
THE PRESIDENT: Did you want to say anything about it, Sir David?
SIR DAVID MAXWELL-FYFE: The Tribunal will remember that I informed the Tribunal that all the questions to Bohle were the same as those to the witness Von der Wense, except two, which I think dealt with the requisitioning of lorries, and about which there could be little dispute. It seemed to the Prosecution therefore that here was clear proof that this witness was entirely cumulative. The interrogation is the same, word for word, as the interrogation of the witness, Von der Wense.
DR. KUBUSCHOK: It was certainly not expressed clearly in the original applications that the other witnesses only know what they have heard from Bohle. In fact, we are here concerned with evidence on instructions given by Bohle personally, on which he is of course the best witness. If necessary we would agree that the subject of that evidence be eliminated as far as the other witnesses are concerned.
THE PRESIDENT: Unless the matter can be agreed upon, the Tribunal can scarcely decide on it without seeing the interrogatory to Bohle and the interrogatories to these other witnesses. Would it meet the case if we were to grant this interrogatory on the condition that, if it appeared subsequently that other interrogatories when considered with this one were cumulative, they might be disregarded?
SIR DAVID MAXWELL-FYFE: Certainly, as far as I am concerned.
THE PRESIDENT: Very well.
SIR DAVID MAXWELL-FYFE: The next is the Defendant Sauckel, and Dr. Servatius and Mr. Roberts of my staff have been considering this carefully together. Dr. Servatius is not here. Perhaps Mr. Roberts can tell the Tribunal how far they got.
MR. ROBERTS: Dr. Servatius submitted a list of about 90 documents, a formidable number; but most of them are short extracts from various decrees and orders relating to the employment of labor, and it is difficult to find any reason for objecting to them. Dr. Servatius at my suggestion agreed to take from his list about 10 or 15 as cumulative. There are about four documents relating to alleged ill-treatment of workers at the hands of the enemies of Germany, to which I have objected on the ground that they are not relevant, and as to those documents a decision of the Tribunal will be necessary as a question of principle.
My Lord, as Dr. Servatius could not, as I understand, be here today, perhaps we could discuss the matter with the General Secretary on his return at the beginning of next week, so that the matter then could be put in a convenient and more or less agreed on form to the Tribunal.
THE PRESIDENT: Yes.
Then you haven’t been able to come to any agreement about the witnesses, have you?
MR. ROBERTS: My Lord, I thought the position as to the witnesses was this: That Sir David some weeks ago discussed it before the Tribunal and Dr. Servatius discussed it, and Sir David conceded the calling of six witnesses and affidavits from a number of others. That was considered by Dr. Servatius, and he submitted his final and much-reduced list of 11 witnesses, which I handed to an official of the Tribunal, and which I understood has been before the Tribunal.
THE PRESIDENT: Have you the date there? Is it 4 March 1946?
MR. ROBERTS: I have a document before me in German . . .
THE PRESIDENT: I see.
MR. ROBERTS: And the Prosecution’s position was fully stated by Sir David when these matters were being considered before, and it would be now really for the Tribunal, I think, to decide on those two contentions—one for 6 witnesses, and one for 11. What their decision should be . . .
THE PRESIDENT: Sir David, that takes us to the end of the listed ones. There were some that were received later.
SIR DAVID MAXWELL-FYFE: There is one from the Defendant Frank who requests interrogatories to Ambassador Messersmith. That was granted by the Tribunal, and in an executive session. It was not requested in Counsels’ consolidated applications, but heard in open court. There is obviously no objection to that in principle that the Prosecution are aware of.
Then the Defendant Von Ribbentrop requests the book, America in the Battle of the Continents, by Sven Hedin . . .
THE PRESIDENT: Other defendants have administered interrogatories to Mr. Messersmith, have they not?
SIR DAVID MAXWELL-FYFE: Yes, Sir.
THE PRESIDENT: Have the answers been received yet?
SIR DAVID MAXWELL-FYFE: They have not been received, I am told.
THE PRESIDENT: How long is it since they were sent off?
SIR DAVID MAXWELL-FYFE: I will find out, My Lord. 21 February.
THE PRESIDENT: You have seen these interrogatories, the ones now suggested by the Defendant Frank?
SIR DAVID MAXWELL-FYFE: I am not sure.
THE PRESIDENT: There are five of them.
SIR DAVID MAXWELL-FYFE: The position is that we got them yesterday and they are still being discussed between my delegation and the American delegation. They have not actually come to me yet.
THE PRESIDENT: We had better consider this.
SIR DAVID MAXWELL-FYFE: The next is an application by the Defendant Von Ribbentrop, who asks for the book, America in the Battle of the Continents, by Sven Hedin. That must be subject to the general use of books, and if there are passages that the defendant wants to use, if he will submit them then we can deal with their relevance when the individual passage comes up.
THE PRESIDENT: That also will be considered.
SIR DAVID MAXWELL-FYFE: If Your Lordship pleases. Then there is an application on behalf of the Defendant Schacht for the book, Warnings and Prophecies, by the late Lord Rothermere. The same, I submit, should apply to that. Any passages desired to be used can be extracted and shown to us, and then their relevance can be considered when use is attempted to be made of them. Dr. Dix nods agreement to that.
Now, I understand there is an application on behalf of the Defendant Von Neurath. I understand that he wishes copies of the interrogations of Dr. Gaus, who is the gentleman who is mentioned as a witness for the Defendant Von Ribbentrop. The general ruling of the Tribunal has been, as I understand it, that the defendants are only entitled to copies of interrogations which are going to be used against them, that is, their own interrogations, and it would be an extension of the rule which might lead us into general difficulties if this were extended to copies of the interrogations of other witnesses. Therefore the Prosecution object in principle to that.
But as I gather that Dr. Von Lüdinghausen wants it for the purpose of preparing the case, if he would care to come and see me or my staff, perhaps it could be conveyed to him; and if he indicates any matters on which we can help him, we will be very pleased to discuss them with him.
THE PRESIDENT: Where is Dr. Gaus?
SIR DAVID MAXWELL-FYFE: In Nuremberg.
THE PRESIDENT: Can’t Dr. Lüdinghausen see him here?
SIR DAVID MAXWELL-FYFE: I would welcome that. I have not the least objection to that at all. That will probably ease the situation.
THE PRESIDENT: Both courses appear appropriate, that Dr. Lüdinghausen could perhaps see you . . .
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: . . . with reference to interrogatories and see Dr. Gaus in the prison here.
SIR DAVID MAXWELL-FYFE: I welcome both of these courses.
THE PRESIDENT: Very well, that concludes the matters.
SIR DAVID MAXWELL-FYFE: As far as Ribbentrop is concerned . . .
THE PRESIDENT: Dr. Siemers, as Dr. Horn is not here, perhaps you could deal with that application with reference to Hilger.
DR. SIEMERS: Yes. I am prepared to do that, but since I have not talked to Dr. Horn I must ask that Dr. Horn not be bound by my statements.
Hilger is a witness of very great importance, since he was an Embassy Counsellor in Moscow, and that during the period when negotiations for a pact were conducted between Germany and Russia, until the outbreak of the war with Russia. He is therefore the person who participated in all negotiations, is well acquainted with the attitude and the dealings of Von Ribbentrop, and therefore the best informed and most reliable witness. Hilger, until now has been in the background as a witness, since Dr. Horn had asked for the ambassador, Dr. Gaus. But Dr. Horn withdrew, or has withdrawn, his application for Dr. Gaus, as far as I know, and wants only, in reference to some lesser points, to have possibly an affidavit or an interrogatory. I assume that Sir David agrees to this, if I submit it in that form.
THE PRESIDENT: Yes, Dr. Siemers?
DR. SIEMERS: Sir David has just very kindly expressed his agreement to this course.
SIR DAVID MAXWELL-FYFE: I agree, My Lord, as I suggested, that if this witness Hilger is called as an oral witness, an interrogatory be administered to the witness Gaus.
THE PRESIDENT: Very well.
That is all, isn’t it?
SIR DAVID MAXWELL-FYFE: That is all.
THE PRESIDENT: The Tribunal will adjourn to consider these matters.
[The Tribunal adjourned until 25 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, and Kraków 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 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. 9, by Various.]