THE PRESIDENT: I desire to announce a slight change in the order of business.
Dr. Stahmer has submitted a motion in writing, stating that h desired a little more time in the preparation of his documents and for other reasons would be grateful if the case of the Defendant Goering 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 anticipate 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 Goering 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 defendant 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 witnesse being called for oral testimony: Number 3, the retired Minister Severing; Number 5, Vice Admiral Schulte-Moenting; Number has already been sought for and not objected to by the Prosecution -- a witness for the Defendant Doenitz; Number 10, Admiral Boehm.
Then, with regard to the following witnesses the Prosecutic 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?
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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. Suchting, 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 in. 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.
Am; PRESIDENT: I think so, yes. That is Number 8.
SIR DAVID MAXWELL-FYFE: Then the next one, Von Weizsacker, 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 Weizsacker 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
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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 Burckner, 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
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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 eve 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
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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
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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. Suchting. 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 vitas 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.
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Number 9, Ambassador Baron Von Weizsacker. 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 Weizsacker was State Secretary in the Reich Ministry for Foreign Affairs. At that time, in September 1939, Weizsacker spoke with the American Ambassador on the subject of the Athenia. Weizsacker 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 Weizsacker 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 Weizsacker.
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 Weizsacker immediately after the Athenia case in order to clarify the case. Thereupon Weizsacker 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 Weizsacker 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
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that Weizsacker knows also the subsequent occurrences. Weizsacker 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. Weizsacker 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 Weizsacker 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 quip 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.
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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 Burckner. I asked for him on 31 January. So far I have received no answer. I asked to be allowed to speak to the witness Burckner 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 Burckner. 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 Burckner 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 Burckner. 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
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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
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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 wil1 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.
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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.
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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.
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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 Burckner. So far as we know, Dr. Siemers made one request about Admiral Burckner some time ago, and at that time he was told, as I understand it, that Admiral Burckner 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 Burckner 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 Burckner. 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 Biirckner, 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 Tribuna1 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 Burckner now.
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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. Kranzbuhler that Dr. Kranzbuhler will deal with the entire complex of naval warfare and submarine warfare, although, in this respect, it not only affects Grossadmiral Doenitz, 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. Kranzbuhler will also represent him.
I should like to point out only that Dr. Kranzbuhler's very important application regarding the questions to Admiral Nimitz not only affects Grossadmiral Doenitz 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. Kranzbuhler'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 wher 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 ir 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 dea 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 wit receive the books which belong to Number 2 and Number 3 soon because otherwise a delay may be caused. The report of General
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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 Jadkson'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 oneself 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?
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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 Hoopken, because these witnesses appear to cover the same ground; that he might have Number 3, the witness Muters teacher, who was Chief of Staff of the Reich Youth Leadership (Reichsjugendfuhrung); 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. Schlunder, who also reseats the witness Lauterbacher word for word; and Number 9, Dr. Klingspor,
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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;
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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 Burckel; that he, contrary to Burckel, 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.
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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 Hoopken.
DR. SAUTER: Yes, but youth education was Hoopken'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 Schlunder.
DR. SAUTER: Mr. President, there again is the difficulty which I pointed out before. From the Polish Government report which
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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 Schlunder, 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?
TEIE PRESIDENT: He said that Schmidt and Schlunder 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 Schlunder 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 Schlunder 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 bbe 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.
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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 Schlunder were called, it would dispense with the necessity for Schmidt.
DR. SAUTER: May I point out, Mr. President, that in any case I need Schlunder, 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. Schlunder, 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
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the question of the promilitary 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 frown 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.
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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.]
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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.
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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 win, 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 Arbeitstront, looked after the welfare of foreign workers by agreement with the late Dr. Ley.
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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 Darre, 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.
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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 Jager, 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 hvo, 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
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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
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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 lime 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
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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
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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
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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 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.
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?
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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. Jager. 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. Jager 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. Jager's testimony is inaccurate. My chief difficulty was to obtainpossession of this evidence, hence the delay. Otherwise I should have submitted it sooner. I attach great importance to Dr. Jager 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:
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"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 lithe 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
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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 tc which I must refer.
THE PRESIDENT: You will not forget that many of the defendants are concerned in various aspects and they have neither askec 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 Buchs, 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.
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With regard to Vice Admiral Burckner, 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 Hider 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 whicli 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 Fuehrer was enraged and ordered strict measures to be taken against these Commandos. Jodl refused to issue or draft the order as demanded by the Fuehrer. 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
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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 Burckner, I should like to point out that he is the same Admiral Burckner 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 Buchs as a witness and therefore why did I not ask for him. This is on behalf of Goering, is it not? I shall have to leave the decision to the Tribunal. I had in fact intended to call Buchs 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: Goering has also asked for him as a witness.
THE PRESIDENT: Has he been allowed to the Defendant Goering?
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
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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 hvo 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.
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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 Goering. Consequently, I need not ask for them myself.
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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 a 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 wear 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.
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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.]
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