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DR. SERVATIUS: Mr. President, yesterday I received the translation of Document D-728. It is the document which was objected to yesterday as being incorrect.
THE PRESIDENT: Yes.
DR. SERVATIUS: I request to have this retranslated, since this translation is considerably different from the original wording and, in particular, fails to make clear where the mistakes are which led to the objection against the document. On the first page of that document there are about 20 to 30 objections to be made. The translator, since he could not realize the importance of the document, translated it quickly without emphasizing the decisive points. A careful translation ought to be made, which would enable us to get an idea of the original document. I am fully aware of what the difficulties are.
THE PRESIDENT: Certainly, the translation shall be checked by a different translator, or, if you like, by two different translators.
DR. SERVATIUS: May I ask to have a new translation made for comparison, since the version which we have here is also evidence of the fact that the original already contains considerable mistakes.
THE PRESIDENT: Certainly, it shall be checked and retranslated.
DR. SERVATIUS: Then, I request further that the opinion of an expert on the German language be obtained. This opinion will ascertain that the author of this document does not have full control of the German language and that it must have been drawn up by someone who was a foreigner. I do not want to give detailed reasons, but I would like to make this motion in writing.
THE PRESIDENT: I think you must certainly make a written application about that.
DR. SERVATIUS: I shall submit it in writing.
GEN. RUDENKO: Defendant Goering, in your statement you said that the attack on Poland was perpetrated after the bloody happenings in the town of Bromberg.
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Goering: I said that the date for the attack was set due to the bloody events which included, in addition to many other incidents, also the Bloody Sunday at Bromberg.
GEN. RUDENKO: Do you know that these events happened on 3 September 1939?
Goering: I might have made a mistake regarding the date of Bromberg; I would have to see the documents about that. I merely quoted that as one example among a lot of others.
GEN. RUDENKO: It is understandable. The attack was perpetrated on 1 September, and the events in the town of Bromberg, which you just mentioned to the Tribunal, happened on 3 September 1939. I submit to the Tribunal the document evidence issued by the High Commission for the Investigation of German Crimes in Poland, which is duly certified in accordance with Article 21 of the Charter. From this testimony it is clear that the events about which the Defendant Goering is testifying here happened on 3 September 1939, that is to say, on the third day after the attack by Germany on Poland.
THE PRESIDENT: You can put the document to the witness, if you want.
GEN. RUDENKO: I have no German text. I have it in English and in Russian. I just received this document. It is dated 19 March, and I will submit it to the Tribunal as conclusive evidence to prove this fact.
THE PRESIDENT: I do not think this is the appropriate time to put in documents in that way.
Very well, you can put in the document now if you like.
GEN. RUDENKO: Thank you, Mr. President.
THE PRESIDENT: It must be translated into German, of course.
GEN. RUDENKO: I have no German translation of this document.
THE PRESIDENT: It has to be translated into German in order that defendant's counsel may see it.
GEN. RUDENKO: We will do that without fail.
DR. STAHMER: Mr. President, may I ask to have the document read now? It is only a short memorandum; so we can hear immediately what it contains.
THE PRESIDENT: Very well. Will you read it into the record, General Rudenko?
GEN. RUDENKO: Yes, Sir. It is very short:
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"Certificate Based on the Investigation Performed by the Polish Legal Authority.
"The High Commission for the Investigation of German Crimes in Poland certifies that the so-called Bloody Sunday in the town of Bromberg took place on 3 September 1939, that is to say, 3 days after the time when Poland was subjected to the German attack.
"On 3 September 1939, at 1015 in the morning, German Fifth Columnists attacked Polish troop units retreating from Bromberg. During the fighting 238 Polish soldiers and 223 German Fifth Columnists were killed. As a consequence of the events after the entrance of the German troops into the town of Bromberg, they began mass executions, arrests, and deportations of Polish citizens to concentration camps, which were performed by the German authorities, the SS, and the Gestapo. There were 10,500 murdered, and 13,000 exterminated in the camps.
"This certificate is an official document of the Polish Government and is submitted to the International Military Tribunal in accordance with Article 21 of the Charter of 8 August 1945.
"Stefan Kurovsky, member of the High Commission for the Investigation of German Crimes in Poland."
I should like to prove by this document that the events regarding which the Defendant Goering gave testimony happened after the attack by Germany on Poland.
Goering: I am not sure whether we are both referring to the same event.
GEN.RUDENKO: I am speaking about the events in the town of Bromberg. You spoke about them.
Goering: Perhaps two different events took place in Bromberg.
GEN.RUDENKO: It is quite possible.
I pass on to the following question: It is known to you that there was an order by the OKW regarding the branding of Soviet prisoners of war, and what do you think about that?
Goering: That order is not known to me, and no representative of the Air Force was present at this preliminary discussion as I have ascertained here from the records.
GEN. RUDENKO: I am interested as to whether you knew about this or not. The orders are quite clear.
GEN. RUDENKO: Do you know that the German High Command ordered that Soviet war prisoners and Soviet citizens had to be used
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for clearing mine fields and transporting bombs that had not exploded, et cetera? Do you know about that?
Goering: I know that Russian prisoners of war who were engineers had to clear the mines which they had laid. To what extent the civilian population was employed for that purpose I do not know, but it was possible.
GEN.RUDENKO: It is quite clear.
Do you know about an order regarding the destruction of the towns of Leningrad, Moscow, and other towns of the Soviet Union?
Goering: In my presence the destruction of Leningrad was discussed only in the document which was mentioned yesterday, in the sense that the Finns, in case of the capture of Leningrad, would have no use for such a big city. Of the destruction of Moscow I know nothing at all.
GEN. RUDENKO: Do you remember the minutes of the meeting? This document was presented to you yesterday -- the minutes of the meeting of 16 July 1941. You were present at this meeting. They state that the Fuehrer declared ...
GORIMG: I have just mentioned and confirmed that.
GEN. RUDENKO: Did you speak about this same document? But, besides this statement, there were also official orders.
Goering: Would you be good enough to put them before me, then I would be able to ascertain whether they are correct and whether they were known to me.
GEN. RUDENKO: I have no intention of submitting these documents to you. They have already been submitted to the Tribunal. I am interested only as to whether you were aware of these orders.
Goering: I received no order to destroy Leningrad or Moscow in the sense which you have indicated.
GEN. RUDENKO: All right. You were told only about the important happenings. But orders for the destruction of cities, and murder of millions of men, et cetera, went through so-called service channels.
Goering: If a town was to have been destroyed by bombing, then that order would have been given by me directly.
GEN. RUDENKO: On 8 March, here in the Tribunal, your witness Bodenschatz stated that you told him in March 1945 that many Jews were killed and that for that you will have to pay dearly. Do you remember this testimony of your witness?
Goering: This testimony, in the form in which it was translated now, I do not recollect at all. The witness Bodenschatz never said it that way. I ask that the record of the session be brought in.
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GEN. RUDENKO: How did Bodenschatz say that? Do you remember?
Goering: That if we lost the war we would have to pay dearly.
GEN. RUDENKO: Why? For the murders which you had perpetrated?
Goering: No, quite generally, and after all, we have experienced just that.
GEN. RUDENKO: Quite generally. I have a few concluding questions to put to you. First of all, regarding the so-called theory of the master race. I should like to put to you only one question in this connection and I should like you to reply directly to it. Were you in accord with this principle of the master race and education of the German people in the spirit of it, or were you not in accord with it?
Goering: No, and I have also stated that I have never used that expression either in writing or orally. I definitely acknowledge the differences between races.
GEN. RUDENKO: But do I understand you correctly that you are not in accord with this theory?
Goering: I have never expressed my agreement with the theory that one race should be considered as a master race, superior to the others, but I have emphasized the difference between races.
GEN. RUDENKO: You can answer this question; it seems, you do not consider it right?
Goering: I personally do not consider it right.
GEN. RUDENKO: The next question: You have stated here to the Tribunal that you did not agree with Hitler regarding the question of the annexation of Czechoslovakia, the Jewish question, the question of war with the Soviet Union, the value of the theory of the master race, and the question of the shooting of the British airmen who were prisoners of war. How would you explain that, having such serious differences, you still thought it possible to collaborate with Hitler and to carry out his policy?
Goering: That was not the way I worded my answers. Here, too, we must consider separately various periods of time. As to the attack against Russia, there were no basic differences but differences as to the date.
GEN. RUDENKO: You have told that already. Excuse me; I do not want you to be lengthy on this theme. Will you reply directly?
Goering: All right. I may have a different opinion from that of my Supreme Commander, and I may also express my opinion clearly. If the Supreme Commander insists on his opinion and I
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have sworn allegiance to him, then the discussion comes to an end, just as it is the case elsewhere. I do not think I need to elaborate on that.
GEN. RUDENKO: You are not just a simple soldier, as you stated here; but you have presented yourself also as a statesman?
Goering: There you are right. I am not only a simple soldier, and just because I am not a simple soldier but occupied such a prominent position, I had to set an example for the ordinary soldier by my own attitude as to how the oath of allegiance should be adhered to strictly.
GEN. RUDENKO: In other words, you thought it possible, even with the presence of these differences, to collaborate wilth Hitler?
Goering: I have emphasized it and I maintain that it is true. My oath does not hold good only in good times but also in bad times, although the Fuehrer never threatened me and never told me that he was afraid for my health.
GEN. RUDENKO: If you thought it possible to co-operate with Hitler, do you recognize that, as the second man in Germany, you are responsible for the organizing on a national scale of murders of millions of innocent people, independently of whether you knew about those facts or not? Tell me briefly, "yes" or "no."
Goering: No, because I did not know anything about them and did not cause them.
GEN. RUDENKO: I should like to underline again, "whether you were informed of these facts or not."
Goering: If I actually do not know them, then I cannot be held responsible for them.
GEN. RUDENKO: It was your duty to know about these facts.
Goering: I shall go into that.
GEN. RUDENKO: I am questioning you. Reply to this question: Was it your duty to know about these facts?
Goering: In what way my duty? Either I know the fact or I do not know it. You can ask me only whether I was negligent in failing to obtain knowledge.
GEN. RUDENKO: You ought to know yourself better. Millions of Germans knew about the crimes which were being perpetrated, and you did not know about them?
Goering: Neither did millions of Germans know about them. That is a statement which has in no way been proved.
GEN. RUDENKO: The last two questions: You stated to the Tribunal that Hitler's Government brought great prosperity to Germany. Are you still sure that that is so?
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Goering: Definitely until the beginning of the war. The collapse was due only to the war's being lost.
GEN. RUDENKO: As a consequence of which, you brought Germany, as a result of your politics, to military and political destruction. I have no more questions.
THE PRESIDENT: Does the Chief Prosecutor for France wish to cross-examine?
M. AUGUSTE CHAMPETIER DE RIBES (Chief Prosecutor for the French Republic): I ask the Tribunal for permission to make one very short statement to fulfill the desire expressed by the Tribunal and to abbreviate as much as possible the discussions at this Trial. The French Prosecution has come to an agreement with Mr. Justice Jackson and with Sir David that the questions put to the Defendant Goering as a witness should be only those which are considered pertinent.
The questions have been asked and we have heard the answers of the defendant, as far as it was possible to obtain from him, anything except propaganda speeches.
I think the Defense will not be able to complain that its freedom has been curtailed. It has been able to use its freedom abundantly, in the past 12 sessions without having been able in any way to weaken the Prosecution's overwhelming accusations, without having been noticeably able to convince anyone that the second man in the German Reich was in no way responsible for launching the war or that he knew nothing of the atrocities committed by the men whom he was so proud to command.
THE PRESIDENT: You will no doubt have the opportunity later to comment, but the question that I ask you now is whether you wish to ask the witness definite questions.
M. CHAMPETIER DE RIBES: Mr. President, I have finished; I have said all that I wanted to say, that is to say, after all these long discussions, the French Prosecution feels that nothing has been changed in the crushing accusation which we brought forth. Consequently, I have no further questions toask the defendant.
THE PRESIDENT: Dr. Stahmer?
DR. STAHMER: The British Prosecution has stated that you issued direct orders to the Hermann Goering Division during its employment in Italy referring to the fight against the partisans. Is, that statement correct?
Goering: No. The Hermann Goering Division was a ground division and was part of the operational task force of an army and army group. Consequently, it could never have received orders for its tactical employment from me, from Berlin or from my headquarters, which were not on the scene. Therefore I could not have
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given it any orders as to whether and how it was to be employed in the partisan war. Only such orders are in question as referred exclusively to matters of personnel and ecfuipment or which concerned the internal administration of justice with regard to officers; nor did the division submit to me daily reports but only ...
SIR DAVID MAXWELIFYFE: I did not catch that. I am sorry, My Lord, I should have spoken earlier. I gather that these questions are directed to the Hermann Goering Division. The defendant never dealt with that point when he was being examined in chief; and, therefore, I never dealt with it in cross-examination, because the point had not been raised. It is therefore my submission that it is quite inadmissible for the matter to be raised in re-examination.
THE PRESIDENT: You must remember, Sir David, that the practice in foreign countries is not the same as the practice in the United States and in England; and although it is perfectly true that Dr. Stahmer, according to the rules of England at any rate, would not be able to raise this point in re-examination, we are directed by the Charter not to deal technically with any question of evidence. It may be you would have to ask him some questions thereafter in cross-examination, although I hope that will not be necessary, in view of the evidence of the witness Kesselring.
SIR DAVID MAXWELL-FYFE: I considered that point, but I wanted only to make it clear that the Prosecution has not dealt at all, because it had not been raised previously with this point.
THE PRESIDENT: No; either in the examination or in the crossexamination.
SIR DAVID MAXWELL-FYFE: Or in the cross-examination.
THE PRESIDENT: Sir David, I had already noticed the point that the question had not been raised in the evidence of Hermann Goering.
DR. STAHMER: May I, in explanation, assert that I received the document only yesterday and consequently could not take any attitude earlier toward this question, which has been dealt with already by the Prosecution.
THE PRESIDENT: But, if my recollection is correct, the witness, Field Marshal Kesselring, raised this very point himself, and therefore the point was obvious and could have been raised in examination in chief, in which case it would have been dealt with by the Defendant Goering. It does not depend upon any particular document; it depends upon the evidence of the Field Marshal Kesselring, who said that he was bypassed -- I think the word as it was translated was that he was bypassed between the Hermann Goering Division and the Defendant Goering, although the Hermann Goering
Division was under his command. So it has nothing to do with any document.
DR. STAHMER: May the witness continue, Mr. President.
THE PRESIDENT: Yes.
Goering: The division was under my command only as far a personnel, commissioning of officers, and equipment was concerned but not as to its employment. I did not receive reports daily, but at intervals, regarding events, losses, replacements. That, on the whole, was all the connection I had with that division. I could not give any orders for its employment, since it was under the command of parts of the Army.
DR. STAHMER: Did you receive a report regarding the event at Civitella?
Goering: No, I did not receive that report. I have learned of it for the first time here from the affidavit of an Army general who was in command of that division and who, was also responsible for these matters, and who apparently is trying now to shift that responsibility to the division and, because of the name of the division, on to me.
DR. STAHMER: Your relation to Hitler and your influence upon him has again been touched upon during cross-examination. Will you please summarize the facts briefly by particular periods, which are necessary to form an opinion on that relation?
Goering: Already during the cross-examination I have pointed out that a very long period is involved here. In 1923, when I was an SA leader, my relation was normal. Then there is a long interval -- 1931 ...
MR. JUSTICE JACKSON: May it please the Tribunal: It seems to me in the interests of time highly objectionable to allow th witness now to summarize. He was given the advantage of answering any questions he wanted as he went along. It seems to me that when he has covered a subject at least once -- and as a matter of fact he covered this one four or five times in an address at nearly every question that would permit -- that that at least should bring us to the end of that subject. It was exhausted.
The matter of time here is a grave matter. By our calculation -- a careful calculation -- of the witnesses which have been allowed, this Trial will now project into August. It does not seem that we should allow him to play this game both ways, to make his speeches during the cross-examination and then to sum them up again afterwards.
THE PRESIDENT: Dr. Stahmer, the Tribunal has allowed you to ask questions which, strictly speaking, are not admissible in re-examination and I want to make it clear to you what questions are
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admissible in re-examination -- only these which arise out of the cross-examination. As to this particular question, the Defendant Goering was allowed to make what were really speeches in his examination in chief without any interruption whatever; and he went over the whole history of the Nazi regime from its inception until the end of the war and the Tribunal does not consider that he ought to be at liberty to go over the same ground again in re-examination.
DR. STAHMER: Mr. President, I had merely asked that question because up to now it had not been dealt with comprehensively and I think it necessary, in order to form an opinion of the defendant and his attitude during that time, to have a comprehensive and coherent account of this matter which in my opinion is so important for the decision to be made in this Trial. If, however, the Tribunal objects to this question, I must submit to that decision and withdraw the question.
[Turning to the defendant.] I have another question. During your examination, you stated, regarding certain accusations, that you want to assume responsibility for them. How is that to be understood?
Goering: As to responsibility, one must discern between formal and actual responsibility. Formally, I bear responsibility for that which was done by those departments and offices which were under my command. Although I could not possibly have seen or known beforehand everything that was issued or discussed by them, I must nevertheless assume formal responsibility, particularly where we are concerned with the carrying out of general directives given by me. Actual responsibility I see in those cases in which I personally issued orders or directives, including in particular all acts and facts which I signed personally or issued authentically, but I mean these facts only and not so much general words and statements which were made during those 25 years here and there in small circles. In particular, I want to say the following very clearly about responsibility: The Fuehrer, Adolf Hitler, is dead. I was regarded as his successor in leading the German Reich. Consequently I must declare, with reference to my responsibility, that it was my aim ...
THE PRESIDENT: The Tribunal would wish that you should not make speeches. The Tribunal is perfectly well able to understand the difference between formal responsibility and actual responsibility for orders given by you.
GORI14G: I acknowledge my responsibility for having done everything to carry out the preparations for the seizure of power, and to have made the power firm in order to make Germany free and great. I did everything to avoid this war. But after it had started, it was my duty to do everything to win it.
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THE PRESIDENT: We have already heard you say that more than once and we do not wish to hear it again.
Goering: On the question of labor: During the war, the inhabitants of the occupied territories were brought in to work in Germany and their countries were exploited economically.
THE PRESIDENT: Dr. Stahmer, you are supposed to be asking questions of the witness. Now, what question is that in answer to?
DR. STAHMER: I had asked him about his responsibility ...
THE PRESIDENT: You can ask him questions, but you cannot ask him general questions which invite speeches. If you have any particular questions to ask him which arise out of the cross-examination, now is the time to ask them.
DR.STAHMER: I put this question: To what extent does he consider himself responsible for the points mentioned here in the cross-examination regarding the deportation of workers, ...
MR. JUSTICE JACKSON: I object to this question being put.
THE PRESIDENT: He has already told us about that. He answered that question more than once.
DR. STAHMER: In that case, I have no further questions to ask.
THE PRESIDENT: Very well. Then the defendant can retire.
[The defendant left the stand.]
THE PRESIDENT: Yes, Dr. Stahmer.
DR. STAHMER: May I first of all give a short review of the present stage of the Trial so that the Tribunal can see what the list of witnesses still granted to me is like now. I was going to forego Dr. Lohse.
THE PRESIDENT: Dr. Lohse, did you say?
DR. STAHMER: Yes, I abstain from calling Dr. Lohse, because the defendant has in my opinion already made sufficient statements on that subject. Furthermore, I had been granted Ambassador Dr. Paul Schmidt as a witness. That witness, of whom I want to ask a few questions only, I should like to hear later, subsequent to his examination by the Defendant Ribbentrop, because he will, have to answer a wide range of questions during that examination, and it appears to me appropriate if I ask him subsequent to that -- which is also in accord with the wish of Dr. Horn -- if the Tribunal will agree to that procedure, the witness Koller ...
THE PRESIDENT: Certainly.
DR. STAHMER: The witness Koller, as it has now been ascertained, is in Belgium, and not in Germany. His hearing was provided in case he was in Germany. Consequently, I shall have to
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submit an interrogatory to that witness. That has been done, but the interrogatory has not yet been returned.
THE PRESIDENT: Yes.
DR. STAHMER: Furthermore, I have received permission to submit interrogatories to the witnesses Ondarza, Freiherr Von Hammerstein, Kammhuber, Student, and Bunjes. The interrogatories have been submitted but have not been returned yet. The situation is that the addresses of Ondarza and Kammhuber have since been ascertained; as to the other three witnesses, inquiries are still being made, so that also here I cannot yet submit anything. Then there are interrogatories of Uiberreither, Lord Halifax, and Forbes; from Halifax and Forbes the interrogatories have been received, and I am going to read them; from Uiberreither there is a written statement as well. Then it concerns ...
THE PRESIDENT: What do you mean by "a written statement as well"? You said there are the interrogatories from Lord Halifax and Sir George Ogilvie-Forbes.
DR. STAHMER: Interrogatories have been received from Lord Halifax and Forbes. There is a written affidavit from Uiberreither and I assume that that may take the place of an interrogatory.
THE PRESIDENT: Yes, I understand.
DR. STAHMER: Furthermore, there is the Katyn case, Mr. President. Five witnesses are involved. I am still making inquiries regarding their addresses. I am therefore not in a position to have these witnesses called before the Tribunal.
THE PRESIDENT: Yes, Dr. Stahmer. Was that all that you wished to say at this stage?
DR. STAHMER: Yes, upon the question of these witnesses; in, addition I must present what I have in the way of documents and then I shall have completed my case for the time being. I have put down in writing what I have to say about the documents.
THE PRESIDENT: Just one moment.
DR. STAHMER: Yes, sir.
THE PRESIDENT: Yes, Dr. Stahmer, the Tribunal approves of the course which you suggest.
MR. JUSTICE JACKSON: May I, in the interest of time, make a suggestion, Your Honor, that these documents which Dr. Stahmer proposes to offer, I understand, have been translated into all four languages, so that the reason for reading them in open court does not sustain. I cannot speak for my colleagues since I have not consulted them, but so far as the United States is concerned, we will not raise a question of relevancy; we spend no time arguing points
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of relevancy. I suggest that the reading of a whole document book seems a waste of time of the Trial Court since the documents are available in all four languages.
THE PRESIDENT: Dr. Stahmer, before we consider that course which has been suggested by Mr. Justice Jackson, we should like to hear whether any of the other Chief Prosecutors have anything to add to it.
SIR DAVID MAXWELL-FYFE: I respectfully submit that it is an excellent suggestion and I want to make it clear to the Defense Counsel that I feel that it will, one the one side, avoid arguments of relevancy on comparatively small points and, on the other side, the Defense Counsel will be able to use any of the excerpts in their final speeches with more effect and probably with more help to the Tribunal than merely by reading them at this stage. I respectfully support it and consider that it will improve the general condition.
THE PRESIDENT: Thank you, Sir David. We will hear you in a moment, Dr. Stahmer, but I do not want you to go away; I want you to be able to hear. I want to hear General Rudenko, too.
GEN. RUDENYO: I am fully in agreement with the suggestion of Mr. Justice Jackson and that of Sir David Maxwell-Fyfe and I also consider that the Tribunal accept these documents which have been translated in four languages. This does not exclude the premise, namely that the Defense has no right to submit documents that have nothing to do with the present case. In particular I have a definite objection against submitting as exhibits the extracts from documents of the so-called White Book which are being submitted by Dr. Stahmer in the document book. These extracts have nothing to do with the present case and they should not be submitted.
THE PRESIDENT: Does the French Chief Prosecutor wish to add anything to what has been said?
M. CHAMPETIER DE RIBES: The French Prosecution has laid before the Tribunal a note requesting rejection of Document Number Goering-26. It concerns indeed an extract from a note from the German Government to the French Government regarding the treatment of German prisoners of war in France. This extract refers to a secret order from the headquarters of the general commanding the 9th French Army. This extract says that the general commanding the 9th French Army published an order; this order was not given to us. We are dealing only with an assertion of the German Government, which is the government of the defendant. The extract kvhich is offered to us has therefore no relevancy and we ask the Tribunal to reject it.
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THE PRESIDENT: The Tribunal, at the moment, is not considering the question of relevancy of particular documents. They are considering only the general question of method as to whether all these documents have to be read out to the Tribunal or whether
they can be laid before the Tribunal for the Tribunal's con deration. If they have got to be read out in full It will take a very considerable time, and therefore Mr. Justice Jackson has suggested that instead of all these documents being read out in full, which will take a very long time, as they have been translated, the reason for that no longer exists as it did exist in the case of the documents put in by the Prosecution which had not been translated. But that does not mean that the question of relevancy of individual documents or particular passages in the documents is decided by the document book's being presented for the consideration of the Tribunal. Such questions as that may, in important cases, have to be considered after argument, but as a general rule and for the purpose of avoiding delay, the suggestion of Mr. Justice Jackson appears to have a very great deal to recommend it.
M. CHAMPETIER DE RIBES: The matter which is before us today is to find out whether all of the documents which have been submitted are relevant, and that is why I asked that the Tribunal reject one of the documents as irrelevant. If it is understood that this question may be brought up later when the document is produced then I see no objection to postponing my explanation. I wish to state concerning Document Number Goering-26 only that the quotation read by Dr. Stahmer is mutilated and I shall ask the Tribunal to hear this document read in full.
THE PRESIDENT: We would like to consider this matter, but before doing so we would like to know whether you have any objection to the suggestion that has been made. You understand what Mr. Justice Jackson's suggestion is?
DR. STAIMER: Yes, Mr. President, I understand. It touches upon a fundamental question of the defense, and I should like to discuss this question briefly with the other Defense Counsel. I should like to suggest that the Court take a short recess now so that there will be an opportunity to discuss the matter. I would then make my statement afterwards. I should like to point out now that at the time we were willing to forego the reading of the Indictment, and its being read was not due to our objections. The gentlemen probably were of the opinion that it had to be read as a matter of principle. I shall clarify the question and report immediately.
THE PRESIDENT: What do you say about the reading of the Indictment? Are you making a complaint because the Indictment had been read?
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DR. STAHMER: No, no, no.
THE PRESIDENT: The matter stands upon a different footing. The Charter, which is the document which governs the actions of the Tribunal, provided that the Indictment must be read. It does not follow that what is now being suggested is not provided for in the Charter. The only reason why we ruled that every document which the Prosecution wished to rely upon be read in open court was because the Prosecution, at that time had not found it possible to translate into four different languages every document which it wished to put in evidence and for the convenience and in fairness to the defendants and their counsel. We ordered, as you remember at an earlier stage, that every sentence in a document upon which the Prosecution relied and which we could consider as evidence should be read into the microphone so that it could come to you in German and would appear in the record, in the transcript. That principle no longer applies to the documents which are now put in because they have been translated into four different languages by the Prosecution's Translation Division. Therefore, in the interest of time, which must be almost equally important to the Defense as well as to everyone else concerned, it seems to the Tribunal that the suggestion which Mr. Justice Jackson has made is a very sound one and you will, of course, be able to comment in any way you think right during the course of your final speeches upon the documents on which you rely, subject to any question of relevancy which may be of real importance. There may be certain documents which may be objected to by the Prosecution, but, as Mr. Justice Jackson said, he will not now raise any question of relevancy, and he is ready to have all these documents referred to in your document book considered by the Tribunal. Remernber also, when we approved your documents, we expressly reserved any question of relevancy of particular passages in these documents which you might want to use.
Perhaps it will be appropriate for us to adjourn now and you can discuss the question with your colleagues.
[A recess was taken.]
DR. DIX: Gentlemen of the Tribunal: I was, of course, not in a position to have a vote taken among my colleagues of the Defense on the proposal of Mr. Justice Jackson, for the reason alone that not all Defense Counsel are present here. But I have been able to convince myself that the majority of the Defense Counsel agree with the reasons for what I am going to say, and I have no doubt that all Defense Counsel support the application which I am about to make to the effect that the suggestion of Mr. Justice Jackson should be rejected. But to be correct and loyal I feel obliged to
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emphasize that naturally every one of the gentlemen is entitled present his point of view on this question for himself and within the scope of his own subject matter.
And now to the matter itself. The suggestion of Mr. Justice Jackson, especially if it is followed in principle with regard to the documents which are to be submitted by the Defense, would aim at the introduction of a tremendous volume of documents subject matter in the Trial without their being made known by oral presentation in open session to the public and thus to the whol world, which is passionately and wholeheartedly interested in this Trial.
I abstain from quoting, with judicial dialectics, provisions, for instance from the Charter set up for this Trial, which could be use to conduct a polemic against Mr. Justice Jackson's proposal. I start with the principle about the unconditional and absolute importance of which there will certainly be no difference of opinion between the Tribunal and us or between the Prosecution and us namely, the principle that this whole Trial must be subject to the absolute postulate of justice and fairness. These are exactly the motives which prompted the authors of the Charter to give Part IV of the Charter a very pronounced heading. It says: "Fair Trial for Defendants."
But I cannot consider it just and I cannot consider it fair if the Prosecution had the right, for months, not only once but sometimes repeatedly and often, to bring their evidence to the knowledge the public and of the world by reading it into the microphone; and in this regard it should be noted that when these documents were presented often only parts of documents were read which, in th opinion of the Prosecution, were incriminating to the defendants while those parts were omitted which, in our opinion, were exonerating for the defendants. It must therefore be considered an injustice that a defendant should not also have the opportunity to bring to the knowledge of the world through his defense, those matters which in his opinion and the opinion of his counsel, speak in his favor when the Prosecution had previously had the right and the opportunity to apply that procedure to the incriminating documents.
May I draw attention to this fact -- and I have pointed it out repeatedly -- that certain incriminating points have not only been brought to the knowledge of the world public by reading the documentary evidence, but were repeated in the form of representation to the defendants when they were examined as witnesses, and thereby they have been drilled into the ears of the listening world again and again. I am asking you urgently and implore Your Honors in the interest of just proceedings, which I am sure are desired by you as well as by the authors of the Charter, to give the same opportunity to the defendants.
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In support of his suggestion Mr. Justice Jackson has furthermore even emphasized formally the point of view that the Trial would be shortened. The Defense does in no way deny the necessity of limiting this Trial to the time necessary. But perhaps I may in this connection draw your attention to a statement made by the president of the court at the Belsen trial in reply to press criticism about the allegedly too lengthy duration of the trial; the gist of which was that no duration however long was to be regretted as long as it helped to reveal the truth in the end. I ask you to put this principle before the necessity of saving time in this Trial as well.
And finally, may I -- without assuming authority to criticize the measures decided upon and carried out by the Prosecution in accordance with their duties -- may I point out that the duration of the Trial thus far, should anyone consider it too long -- I do not think it is too long -- was at any rate not brought about by the Defense. I think I can say with a clear conscience that so far we have not done anything, said anything, or caused anything which could be used in justly reproaching us for delaying the Trial unnecessarily.
If, furthermore, as your Lordship has pointed out, the reason no longer exists which caused the Tribunal duly to order that those parts of documents which were to become the subject matter of the Trial should be presented orally, then I should like to point out that the vast majority of the documents which were produced at the time and accordingly also presented verbally in part were already at that time available in fourfold translation.
Furthermore, I should like to point out that this documentary evidence, if it is to be comprehensible to the Tribunal and if it is to serve the purpose of establishing the truth, without doubt in many cases calls for explanatory comments by the Defense Counsel. The possibility of such comment would be removed if we are instructed to submit these documents to the Tribunal in toto.
As far as I have been able to ascertain, without wanting to prejudice anybody, my colleagues have by no means any intention of quoting the entire contents of the document books. As far as I understand it, they have in most cases rather the intention of presenting excerpts which they are going to designate, and the relevancy of which may then be discussed if occasion arises. Even such selection of those parts of the documents which are considered to be really relevant would not be possible if the Tribunal followed Mr. Justice Jackson's suggestion. Likewise, as I said before, it would not be possible to point out, in documents already read by the Prosecution, those parts which have not been read but which are exonerating for the defendant.
If it has been said -- and your Lordship has pointed it out -- that the Defense Counsel have an opportunity to quote these parts of the
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documents during their address, then I believe I agree with the Judges that the address should, if possible, be a coherent and terse summary, evaluating the entire substance of the Trial. If we arc now instructed to refer to parts of documents during the address and quote explicitly once more those to which we attach importance as evidence, but which we would not mention at all or only incidentally or summarily in connection with a comprehensive evaluation then the danger arises that the coherence or, let us say, the bold outline of our address would suffer by a recital of the subject matter in detail. And the further danger arises that the time which Mr. Justice Jackson wishes to save through his suggestion will be lost again because the final address will take so much longer, which need not be if it is strictly a summary, an over-all evaluation, in accordance with its purpose.
I consider it even possible that later on, if possibly in the confines of our address a difference of opinion as to the relevancy of an individual document might arise, there might be considerable delay and disturbance in the proceedings, whereas, if one can submit the document in its essential parts at this time, together with statements to explain and connect them, one would have an immediate opportunity to state just why one considers the part presented as relevant, so that the Tribunal would have an opportunity to make a decision as to relevancy now.
In my opinion there are many points which speak against Mr. Justice Jackson's suggestion. I summarize: As far as I am concerned, the most important point of view is that of fairness and justice. The Defense Counsel, as I have ascertained beyond any doubt by conversations during the recess, must and would consider it a severe and intolerable limitation of the Defense, if, contrary to the procedure exercised so far by the Prosecution, it were deprived of the possibility of presenting, in its turn, at least the relevant parts of its own documentary evidence to the Tribunal verbally and with comments. I am of the olainion that it is a simple postulate of fairness in the forensic engagement between Prosecution and Defense that now the Defense, too, should be given the same opportunity. And this is not meant to be criticism either but merely a statement of fact, of which the Prosecution have availed themselves to a considerable and sometimes cumulative extent.
May I request, therefore, and I think my request is supported by the entire Defense that the suggestion of Mr. Justice Jackson be rejected.
THE PRESIDENT: One moment. You began your address by saying that you would not refer to the Charter. On what Article of the Charter do you rely for your argument that all documents which are presented must now be read?
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DR. DIX: I said that I would not refer to individual provisions of the Charter as a basis for my application. As a basis for my application I have merely mentioned the heading of Part IV of the Charter which says, "Fair Trial for Defendants," and I have explained and need not repeat that I would not consider it a fair trial if Mr. Justice Jackson's suggestion were followed. However, I have deliberately -- although my attention was drawn to specific provisions of the Charter which, directly or indirectly, might be used as a legal construction to support my application -- I have refrained deliberately from doing so, since these individual rules in my opinion are not convincing.
The principle of justice and fairness however is sufficiently strong in my opinion, and so are the other arguments of practicability and feasibility which I took the liberty to present to the Tribunal. I think there must be a misunderstanding.
THE PRESIDENT: But you will not have omitted to notice that Article 24 deals expressly with the course of the Trial. Do you rely upon any part of Article 24?
DR. DIX: No, no. I have deliberately not referred to any part of Article 24, since that article gives considerable powers of discretion to the Tribunal, regarding the general rules of procedure which, in my opinion, have nothing to do with the question under discussion at present. This is merely a question of justice and fairness, and, if I may add this, it is a fundamental rule of oral trial. We now have an oral trial, we now have a trial in open session. It is in existence here. I am not sure whether or not the open session is prescribed by the Charter, but it exists. Since it is in existence, we must proceed in accordance with these principles and therefore, in my opinion, the defendant has also the right to present to the public of the world what is in his favor after the Prosecution have presented to the public of the world what is not in his favor.
THE PRESIDENT: I want to ask you another question: Are you suggesting that the Defense should be able to quote, to read documents, more than once?
DR. DIX: I am not suggesting that in any way. As far as I am concerned, my documents of course will be read only in part and certainly not twice. I have merely said that the Prosecution have done so, that is, have read documents twice; sometimes even three times, I am told. But it is not my task to criticize that conduct of the Prosecution; that is the Prosecution's business. I am not here to make criticism; that is up to the Tribunal and the Prosecution. I have merely stated the fact.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal would like to put a further question to Dr. Dix before they hear you, and also ...
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MR. JUSTICE JACKSON: I would like to make a simple statement of fact...
THE PRESIDENT: Please do.
MR. JUSTICE JACKSON: ... which I think will clarify this situation some in justice to the United States of America.
As to the fairness, I call the Tribunal's attention to the fact that we have printed, mimeographed, 250 copies of Dr. Stahmer's entire document book, and it is in the press room waiting for delivery to the press when it is received by this Tribunal, so that we have done everything that we could, everything that we did for ourselves, to make public his documents.
In the second place, we have gone so far as to print even things that the Court ruled out, rather than to have controversy with them.
In the third place, it is not the function of the Tribunal, under the Charter, to spread propaganda. A large part of this is stuff that is 20 years old and is in every good library and will not be used by newspapers and constitutes a waste of our money. We have tried to do everything in order to make this Trial completely fair to these people, and now that I have discovered that we are printing documents that the Court have already ruled out, I must say that I shall stop it. I think we have been imposed upon, and this document book will show it. There are documents after documents that the Tribunal have already ruled irrelevant, and we have gone to the expense of printing them in order to be more than fair.
DR. DIX: May I answer to that very briefly? As far as the point of view of propaganda is concerned, I regret that my suggestion has not been followed, according to which the public and the world would hear only those parts of our document books which have een recognized as relevant by the Tribunal, and then presented by us. If the contents of the document book do produce certain propaganda effects, which is unknown to me and which would be entirely against our intentions, then it is merely due to the fact that the contents of these document books have been submitted to the press not through legal and normal channels or let us say not by due procedure, that is, from the sessions' records; instead these document books of the Defense were placed at the disposal of the press without our knowledge, and therefore also such things were communicated to the press and the world public which, in the opinion of the Tribunal, circumstances permitting, may be irrelevant or perhaps biased. Please do not misunderstand me. I am not saying that they are; I am merely talking in the abstract. But if you want to avoid just what Mr. Justice Jackson wishes to avoid, namely, that political propaganda is made by means of this Trial, then you must follow my suggestion; I want only that to be presented and brought to the
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knowledge of the world which has here been considered relevant by the Tribunal and admitted for presentation.
Due to the excitement in Court it is very difficult to understand every word correctly through the earphones, but if Mr. Justice Jackson meant that we are trying to obtain a propaganda effect here, that is not the case. If he further mentions the point of fairness insofar as the Prosecution had done everything to inform the world public by placing at its disposal all the document books, then I have no criticism to offer in that respect. Far be it from me to call that unfair. But here we are in Court, having proper proceedings. We are not making press propaganda; rather the press is to gather information and report to the world about this Trial from this courtroom. The Defense are only grateful if their efforts to carry through proper proceedings with full information to the press are supported by the Tribunal.
But this is not the crucial point. I have not accused anybody of being unfair. I have merely emphasized that it is a requirement of fairness to let the Defense do the same things which have continually and repeatedly been done by the Prosecution.
THE PRESIDENT: Now, Dr. Dix, will you tell me this: What suggestion do you have for shortening the Trial? You must recollect in the criticism that you have been making of the Prosecution's case with reference to their documents, that their case has been based almost entirely upon documents. They have called -- I do not know how many witnesses, but very few witnesses. You and the other defendants' counsel are proposing to call a very great number of witnesses, and what I would ask you is: How do you propose that the Trial should be shortened so that it may not last until the end of July or August?
DR. DIX: If I make a suggestion, then I can of course do so only for myself and for the case I have to defend. May I suggest, Your Lordship, that we begin with producing the documentary evidence, and I would ask you to realize that, if I am not mistaken, none of the Defense Counsel intends to read his entire document book here before the Tribunal. Whomever I have asked, at any rate the majority, certainly did not intend to do that. Those with whom I have spoken want to quote excerpts only, and in the choice of these excerpts and, in the discussion of whether their presentation would be relevant, a measure could be applied which would, of course, take into consideration the necessity of the matter as well as the question of time. I do not think that the presentation of the documents will take a very long time. My colleague, Dr. Stahmer, for instance, has told me that although he has an enormous and important case to defend, he believes that he will probably complete his case in about 2 hours or maybe in even less than 2 hours. I am
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not a prophet, but I think the Tribunal is considering the matter as more hazardous than it is in fact. Please give us a chance. You may certainly assume that all of us are anxious not to delay the proceedings. Also we are quite willing to take advice if the Court says, "We do not consider this or that important," or, "This or that we consider already demonstrated," or "We presume this or that," et cetera. That way we will make fast progress. May I, therefore, suggest not to lay down now any obligatory abstract rule for the procedure to be followed but to go to work with us now in a practical manner and to accept our assurances that we want to assist in shortening the Trial and, to begin with, start from the standpoint that we may present what we consider relevant. If it should turn out that too much time is being taken up -- which, as I have said, I do not believe -- then we could still discuss that matter once more and after all, the Tribunal is at liberty to make its decisions. All I ask is that it not be done now because I am afraid that the Tribunal, on the strength of the experience with the documentary evidence of the Prosecution, is overestimating the time required for the presentation of our documentary evidence, in which connection I again repeat that this is neither reproach nor criticism. I know that the Prosecution have based their case mostly on documents, and therefore naturally had to take more time.
THE PRESIDENT: Thank you, Dr. Dix. The Tribunal would like to hear -- of course, they cannot hear all the defendants' counsel on this matter, but they would like to hear one other representative of Counsel.
DR. KUBUSCHOK: May I draw the attention of the Tribunal back to the legal aspect of the matter?
The Tribunal quite rightly raised the question: What does the Charter say regarding evidence? The difficulty is caused by the fact that specific rules on this matter are not contained in the Charter. Regarding the procedure, we have Article 24. This Article 24 refers to the session -- the session, which, according to the legal language used in all kinds of criminal procedure, can mean nothing but the oral hearing and the verbal debate. What is lacking in Article 24 is a paragraph which concerns specifically the taking of documentary evidence. But may I draw your attention to subparagraph (e). There the rebuttal of evidence given by witnesses is discussed, the rebuttal, which of course, is concerned not only with the presentation of witnesses but also with the submission of documents.
It is specifically provided there that the evidence should be taken. At any rate, based on the German text and German usage of language, it would not be permissible at all if this evidence taken in the presentation were not produced now during Court sessions
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but if that evidence, on the basis of the presented extensive written material, were dealt with in the separate rooms of the Judges.
It is a particularly important principle of a colleague-like Tribunal, of a Tribunal which consists of several Judges, that the impression which is to be conveyed to the Tribunal should be coherent and direct. That can be achieved only if the material is presented and discussed in oral proceedings.
May I ask you to consider also that we have already acquired some experience in that respect during this Trial. I am sure that everyone who has presented a document has been very grateful to the President of the Tribunal when he interfered during the quotation of the document by limiting here or extending there, and, by doing so, let the Prosecution or the Defense Counsel, who were quoting the document, know the opinion of the Tribunal as to what is relevant. Our experience has been that this guidance by the Tribunal had favorable results later on.
As for the legal aspect, may I draw your attention to Article 21, which contains a special provision, a special provision regarding those facts which are of common knowledge and do not require any discussion. This special provision of Article 21 clearly reveals the difference between these facts and those which may be and need to be discussed. Everything that may be and needs to be discussed must be presented in court in some way so that the Tribunal has the possibility to intervene here also and to make explanatory and guiding comments. That is what I have to say as to the legal aspect of the matter.
Apart from that, I believe that I understood Mr. Justice Jackson's suggestion somewhat differently. First of all, I think Mr. Justice Jackson's suggestion has been somewhat enlarged during the debate. I think his suggestion was that we, as Defense Counsel, should impose certain restrictions upon ourselves not to present the submitted documentary material indiscriminately, but to confine ourselves to choosing those parts which are really worth mentioning and which call for presentation at the present stage of the Trial.
To undergo such a restriction is certainly in line with the practical duty of the Defense Counsel. Nothing is more fatal to the Defense or the Prosecution than going into detail, that is, elaborating on irrelevant facts.
Particularly under firm and strict guidance of the procedure, every Defense Counsel will soon notice whether he is on the wrong track, whether he is presenting superfluous material and, by presenting superfluous material is achieving an effect which he in no case wishes to obtain.
I therefore believe that, as my colleague, Dr. Dix, just said, the self-control of the Defense Counsel and a well-concerned interest in
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his case and in his client will automatically impose on him the necessary limitation in his presentation.
[Dr. Seidl approached the lectern.]
TBE PRESIDENT: I said on behalf of the Tribunal that we wished to hear two counsel.
DR. SEIDL: I wanted to add only very briefly some remarks to what my two colleagues have already said -- very briefly.
THE PRESIDENT: Yes, but then it may be possible that every one of the 20 or more counsel who are present wish to add something.
DR. SEIDL: I do not know, but I do not think so.
THE PRESIDENT: I said two counsel, and I meant two counsel.
DR. SEIDL: Very well.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal would like to know whether you have anything to add in reply to what has been said.
MR. JUSTICE JACKSON: I think nothing. I thought I was saving time. I begin to doubt it.
THE PRESIDENT: Mr. Justice Jackson, I think the Tribunal would like to know exactly how far your suggestion went. Were you really making any further suggestion than this: That the defendants' counsel should not think it necessary to read every document in their document book in the course of the presentation of their defense, or were you intending to move the Tribunal to order that they should not be allowed to read any document in their document book at this stage?
MR. JUSTICE JACKSON: I thought their document book should be directed to be filed as an exhibit at this stage of the case, without reading. I would not be particular about it if they have passages they think are of particular importance which they want to call to your attention, but this document book consists of speeches made 15 years ago and published in the press in every complete library in the country, largely, together with a good deal that has been excluded. It would seem to me that they should go in, so they are available to them, and that if there are matters in them which particular countries wish to object to, they might raise the question by motion to strike or raise it now if they desire. As far as the United States is concerned, we have no objection to any of it; I think some of it is highly objectionable on the ground of relevancy, but it would take longer to argue it and it goes to certain large questions of reprisals and things of that character that will have to be settled in larger ways than questions of admission of evidence.
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THE PRESIDENT: Would you, on behalf of the Chief Prosecutors, have any objection or think it inadvisable to adopt the suggestion which Dr. Dix made that we should see how far the defendants' counsel were prepared to limit the amount of the documents which they read at this stage and see how long it takes and see whether it is necessary to make any further ruling in order to accelerate the Trial?
MR. JUSTICE JACKSON: Well, I am quite willing to experiment, but I do suggest that we are now handed a document book containing a numberof documents that the Court has passed upon, and, as I recall, Your Honor called Dr. Stahmer's attention to this at the opening of his case. I do not have so much faith, perhaps, as I ought to have.
THE PRESIDENT: I think it is very likely that documents have got into Dr. Stahmer's book by mistake, owing to the fact that he, being for the first defendant, there were some difficulties in preparation for instance, and I have already drawn attention to it. I think there is in Dr. Stahmer's book -- I am not quite sure -- a speech of Mr. Paul-Boncour which has been expressly denied by the Tribunal, and those are the sort of documents to which you are referring, no doubt. And I had to draw attention also in the case of one other counsel, I think, or one other witness to a document being put to him which the Tribunal had expressly denied. But of course, that is very wrong that any document should be put into a document book which the Tribunal has expressly denied, but as I say, I think that is very likely due to some mistake.
MR. JUSTICE JACKSON: I am quite ready, and I am sure my colleagues are, to experiment with this and see how it goes.
It is -- and I think I should say this for all of us -- it is a difficult thing where we come from different systems and do not always understand what the other man is driving at; it is a difficult thing to reconcile these different procedures, and I am quite willing to be patient and forbearing about it and see how it works.
THE PRESIDENT: Thank you.
You must quite understand, Dr. Stahmer, that I am not making any ruling on behalf of the Tribunal at this moment as to whether or not Dr. Dix's suggestion will be adopted, because the Tribunal will proceed now to consider the matter, and then the ruling will be made.
DR. STAHMER: Mr. President, may I make just a personal explanation? The inclusion in my document book of the documents which had been denied is due to the following facts: At the request of the Translation Division the document book had already been
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handed to that division before the Tribunal had made its negative decision, and that accounts for the inclusion. I was put under considerable pressure at the time to hand the book over so that it might be submitted to the Court in translated form. That is how it happened.
THE PRESIDENT: I thought it was probably that, Dr. Stahmer.
The Tribunal will adjourn now until 2:30.
[The Tribunal recessed until 1430 hours.]
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THE PRESIDENT: In considering the matters which have been raised this morning, the Tribunal has had in mind the necessity for a fair trial and at the same time for an expeditious trial, and the Tribunal has decided that for the present it will proceed under rules heretofore announced; that is to say:
First, documents translated into the four languages maybe introduced without being read but in introducing them counsel may summarize them, or otherwise call their relevance to the attention of the Court, and may read such brief passages as are strictly relevant and are deemed important.
Second, when a document is offered, the Tribunal will hear any objections that may be offered to it and in this connection, I would refer to the rule which the Tribunal made on the 8th of March 1946, which reads as follows:
"To avoid unnecessary translations, Defense Counsel shall indicate to the Prosecution the exact passages in all documents which they propose to use in order that the Prosecution may have an opportunity to object to irrelevant passages. In the event of disagreement between the Prosecution and the Defense as to the relevancy of any particular passage, the Tribunal will decide what passages are sufficiently relevant to be translated. Only the cited passages need to be translated, unless the Prosecution requires the translation of the entire document."
The Tribunal has allowed the Defendant Goering, who has given evidence first of the defendants and who has proclaimed himself to be responsible as the second leader of Nazi Germany, to give his evidence without any interruption whatever, and he has covered the whole history of the Nazi regime from its inception to the defeat of Germany.
The Tribunal does not propose to allow any of the other defendants to go over the same ground in their evidence except insofar as it is necessary for their own defense.
Defense Counsel are advised that the Tribunal will not ordinarily regard as competent evidence, extracts from books or articles expressing the opinions of particular authors on matters of ethics, history, or particular events.
Now, as to tomorrow's business, the Tribunal will sit in open session for the purpose of hearing applications for witnesses and documents, supplementary applications; and after sitting in that open session, the Tribunal will adjourn into a closed session.
Now, Dr. Stahmer, are you going to refer us to book Number 1? Which is your book? Or are you referring us to your trial brief?
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DR. STAHMER: Mr. President, I shall refer to the trial brief, Page 5. As far as I am informed, the translations show the same numbers as the original German text: Page 5, Paragraph 11. Since this book is translated into the three languages, and the document book, I am informed, is also translated, I can limit myself to referring to them briefly to present only what I consider essential.
At the beginning of my presentation from this book I pointed out that Germany had renounced the Treaty of Versailles and the Locarno Pact, and that this renunciation as such was justified. After this renunciation had taken place, Germany could proceed to rearm and also to reintroduce general conscription.
Moreover, rearmament and the reintroduction of military conscription were ordered by Hitler only after he had previously and repeatedly submitted, without success, offers of disarmament to the powers concerned. Therefore the conclusion cannot be drawn from that fact alone that at that time the intention existed to prepare or to plan German wars of aggression. In this connection I draw your attention to the fact that also in foreign countries rearmament took place to a considerable degree from 1936 on, and as evidence for this fact I have submitted the speeches and essays which are contained in Churchill's book Step by Step. The individual excerpts have been designated by me. I am referring to the following in particular. On Page 5 of this book it says ...
THE PRESIDENT: Dr. Stahmer, you must offer these things in evidence as a matter of formality.
DR. STAHMER: Yes, of course. I have the book here with me. I shall submit it immediately; I also have the individual excerpts here which are included in the document book. It is Document Book 2, Page 44, the first excerpt in Volume 2, Page 44.
THE PRESIDENT: Are you going to number your exhibit in some way?
DR. STAHMER: Yes.
THE PRESIDENT: You have numbered it 40 I see, is that right?
DR. STAHMER: Yes. That is the number in this book. I have numbered these books right through.
THE PRESIDENT: Yes, but whatever number you propose to use you must say what the number is when you offer it in evidence, so that it will go into the transcript.
DR. STAHMER: Yes, Mr. President.
The quotation is from Document Book Number 2 and it is Number 40 on Page 9:
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"On 18 June the Anglo-German Naval Treaty was signed, which released Germany from the Versailles naval restrictions. That meant in effect condonation of the breach of the military clauses."
On Page 35:
"The Air Force is in the process of being almost trebled. This is a colossal expansion which is making the most prodigious demands on our production potentialities. But quite apart from these immediate needs, there is the far greater task of so organizing England's home industries that they will be ready to direct the whole of their enormous and elastic capacity into the channels of war production as soon as a serious necessity for that should arise."
From the article "In the Waters of the Mediterranean" dated 13 November 1936, I quote, on Page 86, where it says literally:
"But it is no longer thus. England has begun to rearm on a large scale. Her wealth and her credit, the solidarity of her organization, her vast resources and connections, all contribute to this revival. The British fleet is still by far the mightiest in Europe. Enormous yearly expenditure on it is under consideration for the future."
Furthermore, I wish to produce evidence of the fact that the Defendant Goering particularly, at various times, beginning after the seizure of power, consistently emphasized his serious desire to maintain peace and to avoid a war. He has also repeatedly stated clearly that the measures taken by Germany were not to serve purposes of aggression. As evidence of this I refer to several speeches made by the Defendant Goering, and to begin with I cite a speech of 4 December 1934, which he made at the Krupp works in Essen, and which is contained in the book Hermann Goering's Speeches and Compositions, Pages 174 to 176, and is reprinted in Document Book Number 1, Page 18.
From this excerpt I wish to quote only the following:
THE PRESEDENT: I do not think the shorthand writer has yet heard what the exhibit number is.
DR. STAHMER: I beg your pardon. It is Exhibit Number 6. I quote -- and it is the last sentence of the first paragraph:
"Today we want to secure this peace, and we want the world to understand this always: That a respected Germany only is a guarantor of world peace. Only a free German nation will keep this peace and will know how to preserve this peace."
"Therefore we demand for ourselves the same rights as others possess."
And on the following page, I quote the last paragraph:
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"We do not want war, but we want our honor. We will not discuss this honor with anybody in the world; that remains, for it is the foundation for the reconstruction of the entire nation. Only he who has a sharp sword at his side is unmolested and has peace."
Sir Nevile Henderson emphasizes Goering's love of peace in various passages of his book Failure of a Mission. The passages are quoted again in Document Book Number 1, Page 63, and I offer it as Document Number 23, Exhibit Number Goering-2. I quote from Page 78 of the book.
"I" -- that is, Henderson -- "was inclined to believe in the sincerity of his" -- that is, Goering's -- "personal desire for peace and good relation with England."
On Page 83 of the book, it says:
"I would like to express here my belief that the Field Marshal, if it had depended on him, would not have gambled on war, as Hitler did in 1939. As will be related in due course, he took a decisive stand for peace in September 1938."
On Page 273, which is the next page, there is the following sentence which I quote:
"I saw the Polish Ambassador at 2 a.m. on 31 August 1939, gave him an objective, and studiously moderate account of my conversation with Ribbentrop, mentioned the cession of Danzig and the plebiscite in the Corridor as the two main points in the Germari proposals, stated that so far as I could gather they were not on the whole too unreasonable, and suggested to him that we recommend to his Government that they should propose at once a meeting between the Field Marshals Smigly-Rydz and Goering."
On Page 276 of the book, you will find the following sentences which I quote from the last paragraph:
"Nevertheless, the Field Marshal seemed in earnest when after having been called to the telephone, he returned to tell us that M. Lipski was on his way to see Ribbentrop. He seemed relieved and to hope that, provided contact could only be established, war might, after all, be avoided."
In February of 1937, the Defendant Goering, on the occasion of an international meeting of war veterans in Berlin, made the following speech, which is contained in the book Hermann Goering, the Man and His Work, on Page 265, and which is contained in Document Book-2, Page 42, which is Exhibit Number 39, and from which I quote the following sentences:
"There are no better defenders of peace than the old war veterans. I am convinced that they, above all others, have
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a right to ask for peace and to shape it. I recognize that those men who, weapon in hand, went through 4 hard years of the hell of the World War, have the primary right to shape the life of the nations, and I know that the war veterans more than anybody else will take care to preserve the blessings of peace for their countries."
I skip two sentences and then quote further:
"But we know that it is a terrible thing, this final contest between nations. It is my fervent and heartfelt wish that this Congress may contribute towards the basis for a true peace with honor and equality of rights for all sides. You, my comrades, will have to pave the way for that."
The same desire is evident in the answers given by Lord Halifax to the questions put him. I now read the following passages from this interrogatory and I offer the original as Document Number Goering-22. It is contained in Document Book I, Page 59.
I think I can omit the first two questions.. The third question is:
"Did Goering say to you during this discussion, 'Every German Government would consider the following matters as an integral part of its policy: (a) The incorporation of Austria and the Sudetenland into Germany; (b) The return of Danzig to Germany with a reasonable solution of the Corridor question?
"Question 4: Did you answer thereupon: 'But, I hope without war'?
"Answer: I said that His Majesty's Government wanted all questions affecting Germany and her neighbors settled by peaceful methods. I did not otherwise discuss those questions.
"Question 5: Did Goering answer thereupon:
"'That depends very much upon England. England would be able to contribute much to the peaceful solution of this question. Goering does not want war either for these reasons, but these questions have to be settled under all circumstances.'
The next questions concern the conversation with Dahlerus ...
THE PRESIDENT: Does that purport to be a verbatim account of what the Defendant Goering said? Did he refer to himself in the third person, "Goering does not want a war," meaning, "I do not want a war"?
DR. STAHMER: He did not want a war either. England would be able to contribute much to the peaceful solution of this question.
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He does not want war either for these reasons. He, that is, Goering does not want war either, but these questions have to be settled under all circumstances.
This is, of course, indirect speech. In direct speech it would be, "I, Goering, do not want war, but the questions have to be settled under all circumstances."
The next questions refer to Dahlerus. Question 15, which is the question but to Halifax, is also of importance in my opinion:
"Did you have the impression that Goering's endeavors to avoid war were sincere?"
The answer of Halifax is:
"I have no doubt that Goering would have preferred to enforce the German demands on Poland without war, if he could have."
At the end of June or the beginning of July 1938, the Defendant Goering made a speech to the Gauleiter at Karinhall which was distinctly a speech for peace. I am referring to a statement from Dr. Uiberreither of 27 February 1946, the original of which is being presented as Document Number 38, Exhibit Number Goering-4, and is given 'in Document Book Number 2 on Page 37.
THE PRESIDENT: You are putting in these originals, are you?
DR. STAHMER: Yes, indeed.
In that statement from Dr. Uiberreither, dated 27 February 1946, at Page 38 in Document Book Number 2, Your Honor, it says:
"On 25 May 1938" -- says Dr. Uiberreither -- "that is, after the plebiscite concerning the reunion of Austria with Germany, which had taken place on 10 April 1938, I was appointed Gauleiter of Gau Steiermark.
"A few weeks later -- it may have been towards the end of June or the beginning of July 1938 -- the former Field Marshal Hermann Goering summoned all Gauleiter of the German Reich to Karinhall.
"He there delivered quite a long address to the Gauleiter, describing the political situation as it was at the time, and discussing in detail the purpose and significance of the Four Year Plan.
"Field Marshal Goering first pointed out that other countries had little understanding for the political developments in Germany, and that consequently there existed the danger of Germany's being encircled. Directing German foreign policy was therefore a difficult task. Consequently, we should endeavor to strengthen Germany from the economic and military point of view, in order to reduce the danger of Germany being attacked by a foreign power. At the same time, this
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would result in Germany once more exercising an increasingly important influence in European politics after she had again become strong.
"After that, Field Marshal Goering discussed the Four Year Plan. In this connection he remarked:
"By and large, Germany was cut off from the world's sources of raw materials and she therefore had to open up sources in her own territory by dint of increased efficiency. This would be done merely in order to make Germany independent of foreign countries, and was not by any means to serve the purpose of preparing for an aggressive war.
"He then stressed, with great emphasis, that Germany's foreign policy would have to be conducted in such a way that war should not ensue under any circumstances. The present generation was still feeling the effects of a lost World War; the outbreak of another war would be a shock to the German people. Furthermore, it was his opinion that a new war might assume great proportions, and even the outcome of a war against France alone would be questionable.
"In conclusion, he summarized his address by saying that we had to do everything in our power to make the Four Year Plan a success, and that all hardships caused thereby must be borne by the people and were justified, because its success might prevent war.
"I point out that I remember all the details of this speech so accurately because this was the first time that I was informed by a leading personality of these conditions which were so important for Germany, and because, as a result, until the war actually started, I did not believe that it would come to a war."
In the solution of the Austrian problem no aggressive action on the part of Germany is to be seen. It took place in response to the desires of the majority of the Austrian population for reunion with the Reich. The defendant's view of this problem can be seen from the telephone conversation he had with the Foreign Minister Von Ribbentrop on 13 March 1938. The record of this conversation has already been produced under Document Number 2949-PS, Exhibit Number USA-75. I shall quote from this conversation some passages which have not yet been read. The conversation is contained in Document Book Number 1, Pages 55-56. I am going to quote only the following passages:
"I want to say one think: If it is said" -- this is Goering talking -- "that we have used pressure on the Austrian people and done outrage to their independence, it can be said that only one thing was put under pressure, but not by us, and that
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was the tiny little government. The Austrian people are free only now. I would simply suggest to Halifax, or to a few really important people whom he trusts, that he just send them over here so they can look at the picture. They should travel through the country, they can see everything."
And a few sentences later:
"What state in the whole world is being harmed by our union? Are we taking anything from any state?"
Then it goes on, I skip two sentences:
"All the people are German; all the people speak German. Thus there is not a single other state involved."
The Defendant Goering -- I am referring to Page 11 of the book next to the last paragraph -- did not only wish to maintain peace abroad; he also supported the preservation of peace at home. In this respect he declared in a speech he made on 9 April 1933 at the Berlin Sports Palace -- it appears in the book Hermann Goering's Speeches and Compositions, and is reproduced in Document Book Number 1, Page 35, and I am offering it as Document Number 13; I quote the first sentence:
"On the other hand, however, my compatriots, we ought also to be generous. We do not wish to practice petty revenge. After all, we are the victors .... Therefore, let us be generous, let us realize that we also thought differently at one time?"
And then a little further down:
". . . the stronger and freer we feel ourselves to be, the more generously, the more freely are we able to disregard what happened in the past and to extend our hand with complete sincerity in reconciliation."
I further quote from a speech of the defendant on 26 March 1938, Document Book Number 1, Page 37, likewise a quotation from Hermann Goering's Speeches and Compositions, the exhibit number of which is 14. I quote only one sentence from it:
". . . you were great in suffering and enduring; you were great in standing firm; great in fighting. Now you must show that you are also great in kindness, and especially so towards the many who were misled."
His attitude towards the Church the defendant has...
THE PRESEDENT: Dr. Stahmer, can you not give the exhibit number?
DR. STAHMER: Yes, I think it was Number 13. I shall look again. It was Number 14.
His attitude towards the Church was expressed by the Defendant Goering in several speeches. In this respect, on 26 October 1935,
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he made the following statement. I am quoting from Hermann Goering's Speeches and Compositions, Document Book 1, Page 39, Document Number 15, the following sentences:
"It rests with the Church alone whether it wishes to have peace. We, the Movement, and in particular the Government and the State, have never attacked the Church; we have assured protection to the Church, and the Church knows that it enjoys this protection also today to the fullest extent.
"Therefore, there is nothing to warrant blaming us for anything in this respect."
And from another speech of 26 March 1938, which is also quoted from Hermann Goering's Speeches and Compositions, Document Book Number 1, Page 41, Document Number 16, I quote the first and the second sentences:
"We do not wish to annihilate any Church, nor to destroy any belief or religion. All we want is to bring about a clear separation. The Church has its definite, very important and very necessary tasks, and the State and the Movement have other, just as important and just as decisive, tasks."
I refer further to a document submitted by a clergyman Werner Jentsch, dated 30 October 1945, addressed to this Tribunal, Document Book Number 1, Pages 44 to 46, Exhibit Number 17.
I quote only one sentence, Figure 8:
"Hermann Goering himself, through his chief adjutant, had the following answer given to a petition for the introduction of a special chaplain's office within the headquarters of the Air Force; that he could not at the moment do anything because Adolf Hitler had not yet made a final decision concerning the question of religion. However, he wished full freedom of religion in the Air Force, including the Christian denominations, and every member of the Air Force could choose for himself whatever chaplain or civilian pastor he desired."
The affidavit from Gauleiter Dr. Uiberreither, dated 27 February 1946, deals with the question which I mentioned earlier and which is contained in Document Book Number 1, Page 31. It, under Figure 2, deals with the events of the night of 9 to 10 November 1938 and the knowledge thereof, as follows:
"A few weeks after the action against the Jews on the night of 9 to 10 November 1938 -- towards the end of November or the beginning of December 1938 -- Field Marshal Goering again called all the Gauleiter to Berlin. During this meeting he criticized the action in harsh words and stated that it had
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not been in keeping with the dignity of the nation. Moreover, it had also seriously lowered our prestige abroad. If the murder of Legation Counsellor Von Rath was regarded as an attack by Jewry against the Reich, then the German Reich had other means of countering such an attack than appealing to the baser instincts. In an orderly state no irregular mob action ought to take place under any circumstances."
And in the last paragraph, under Number 2, it says:
"In conclusion, he asked the Gauleiter to use their entire influence to see to it that such incidents, which were detrimental to Germany, would not recur in the future."
I can skip Page 16, Paragraph 5, as an explanation on that has already been given.
That the Defendant Goering took his duty as Supreme Administrator of Justice very seriously becomes apparent from an affidavit of Judge Advocate General Dr. Lehmann of 21 February 1946. I shall read from this affidavit in Document Book Number 1, Page 106, Document Number 27, Exhibit Number Goering-6. I quote from Figure II onwards:
"II. The opinion I have of him is the following:
"The Reich Marshal originally took a negative attitude toward lawyers. He was evidently influenced by the Fuehrer. This attitude underwent a change to the extent that he occupied himself with legal matters of the Air Force. At the end of the war the Reich Marshal was one of the high commanders who liked to consult lawyers. He took special interest in the legal department of the Air Force and attached great importance to it. He assigned to this department difficult cases for investigation concerning which he was sceptical of the reports of the other offices."
From the following paragraph:
"The Reich Marshal had himself thoroughly informed concerning matters which I had to discuss with him. He devoted an unusual amount of time to these matters. The conferences, even when there were considerable differences of opinion, took a quiet and objective course."
Then from Paragraph III:
"III. Concerning the legal department of the Air Force, the Reich Marshal reserved for himself the confirmation of sentences in many cages, including all death sentences.
"In passing judgment on individual cases he was inclined to show occasional leniency in spite of the harshness demanded of all judges by the Fuehrer. In cases of treason,
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and especially in moral crimes, he showed merciless severity. I know from the records that in severe cases of rape he would often reverse a judgment because he considered the death sentence was necessary. It did not matter whether the woman involved was from Germany or from the occupied territories. I believe that I remember at least one case from the records where he even changed the regular manner of execution and ordered that the soldier be hanged in the Russian village in which he had committed the rape.
"IV. When presiding at a trial the Reich Marshal was very forceful but benevolent; also in his recommendations for mercy to the Fuehrer.
"V. In his own decisions the Reich Marshal doubtless knowingly often acted contrary to the ideas and demands of the Fuehrer, especially in political matters, which he judged much more mildly, and in cases of excesses against inhabitants of the occupied countries, which he judged much more harshly than the Fuehrer.
"I have often discussed the personality of the Reich Marshal with his legal adviser, a very experienced, quiet, and conscientious lawyer, as well as with the Judge Advocate General, who was distinguished by the same qualities, and was often with hirn. We were of one opinion about the Reich Marshal."
In the course of this Trial, the Prosecution has repeatedly referred to the so-called Green File, which was submitted under Document Number 1743-PS. This is not, as the Prosecution maintains, a regulation for the spoliation and annihilation of the population. Its object was rather the economic mobilization and the uninterrupted operation of industry, the procurement and regular utilization of supplies, and of transport facilities in the territories to be occupied by military operations, with special consideration of the fact that Russia had no private enterprise, but only a strict centrally regulated state economy. In addition to that, vast destruction had to be anticipated in view of the Russian attitude. Nowhere does it contain an order or directive to exploit certain groups of the population beyond the necessities caused by the war.
From that Green File I have cited a whole series of passages which are to prove my statements. I cannot refer to them in detail; I should like to draw your attention only to one very characteristic passage which is on Page 94 of this Green File, second paragraph:
"Among the native population, that is, in this case, workmen and clerical employees, the best possible relationship is to be established."
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Somewhat below, on the same page:
"Endeavors must be made for good relations with the population, in particular also with the workers in agriculture."
I am now coming to the next paragraph:
The German Armed Forces entered the war fully respecting the international conventions.
THE PRESIDENT: Where is this part?
DR. STAHMER: Page 23, Mr. President.
THE PRESIDENT: Which volume?
DR. STAHMER: In the trial brief.
THE PRESIDENT: We seem to have only 22 pages in our trial brief. Are there two volumes?
DR. STAHMER: Yes, I believe it is in the second trial brief. The division was made to accelerate the translation. May I continue?
The German Wehrmacht entered the war fully respecting the international conventions. No large-scale excesses by German soldiers were noted. Individual offenses were severely punished. However, immediately after the beginning of hostilities there appeared reports and descriptions of atrocities committed against German soldiers. These reports were carefully investigated. The result was recorded by the German Foreign Office in White Papers, which were sent to Geneva. In this way the White Book came into being which deals with the crimes against the laws of war and humanity committed by the Russian soldiers.
GEN. RUDENKO: Your Honors, Defense Counsel for Goering, Dr. Stahmer, intends to submit to the Tribunal and to read into the record excerpts from the so-called White Book which was published by the Hitler Government in 1941 in connection with some of the violations which supposedly took place concerning German prisoners of war. I consider that these excerpts cannot be submitted and read into the record here because of the following reasons:
There can be put in evidence only facts which refer to this case; there can be submitted to the Tribunal only documents which refer to the crimes which were perpetrated by the German major war criminals.
The White Book is a series of documents of invented data regarding violations which were perpetrated not by the fascist Germans but by other countries. Therefore the data contained in the White Book cannot serve as evidence in this case. This conclusion is all the more justified in that the White Book is a publication which served the purpose of fascist propaganda, and which tried by inventions and forged documents to justify or hide crimes which were perpetrated by the fascists. Therefore I request the
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Tribunal to refuse the reading into the record, or submitting to the Tribunal, excerpts from the so-called White Book.
THE PRESIDENT: On what theory do you justify the presentation of this evidence, DR. Stahmer?
DR. STAHMER: The question whether it is possible and permissible to refer to these White Papers during this Trial as a means of evidence, has been discussed repeatedly. In particular it was the subject of debate when we were concerned with the question of whether I should be allowed to refer to this White Book as evidence. So far as I know, it has been admitted as evidence for the time being. It was already pointed out, during the debate which arose in regard to this subject, that, as far as evidence is concerned, it is relevant for the evaluation of the motives.
At the time I already pointed out that the crimes committed against German prisoners of war are of importance in order to understand the measures taken on the part of Germany. One cannot evaluate the underlying motives of the men who committed these offenses, or gave orders to commit them, if one fails to consider the background against which these deeds were enacted, or investigate the motives which caused them to commit these acts. And because of the importance of the motive, in order to know about the accusations raised by the Germans, it seems to me that this reference to this document is absolutely necessary.
THE PRESIDENT: Have you finished?
DR. STAHMER: Yes.
THE PRESIDENT: Well, we are here to try major war criminals; we are not here to try any of the signatory powers. Therefore you must justify the introduction of evidence against the signatory powers in some legal way.
DR. STAHMER: The presentation, if I may repeat, is made for the following reasons:
The defendants here are accused that under their leadership crimes and offenses against members of foreign armed forces were committed which are not in accordance with the Geneva Convention. On our part we plead that if harsh treatment and excesses occurred on the German side, they were caused by the fact that similar violations occurred also on the other side, and that consequently these offenses must be judged differently and not be considered as grave as would be the case if the opposite side had conducted itself correctly. Anyway, these facts are relevant for the evaluation of the motive.
THE PRESIDENT: Are you attempting to justify the introduction of this evidence on the ground of reprisals?
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DR. STAHMER: Not only on the ground of reprisals, but from the point of view of the motive for the deed.
THE PRESIDENT: You are asking us to admit a document, a German dovernmental document. Now, under the Charter we are bound to admit documents, governmental documents, and reports of the United Nations, but it is nowhere said that we are bound to admit or are at liberty to admit documents issued by the German Government. We cannot tell whether those documents contained facts truly stated or not.
DR. STAHMER: We have here in the document books, court records of legal inquiries. These must in my opinion have the same value as evidence as official documents. They were records of court proceedings which are quoted in the White Book.
GEN. RUDENKO: I should like, Your Honors, to point out only one thing here. Defense Counsel Stahmer tries to submit these documents in order, as he says, to present his reasons which would explain the crimes of the Germans. I should like to state here that these documents, which have already been submitted to the Prosecution, and which were mentioned yesterday here during the crossexamination of the Defendant Goering, show quite clearly that the document regarding the crimes was drafted before the beginning of the war.
THE PRESIDENT: Dr. Stahmer, what are the dates of these documents that you are asking us to admit?
DR. STAHMER: I have the individual ones here. Meanwhile I am having the records looked for.
MR. JUSTICE JACKSON: I suggest, Your Honor, that I support fully the objection made by General Rudenko. I had supposed that the one thing counsel on both sides were agreed upon, when this matter was under discussion before, was that no reprisals against prisoners of war are tolerated. Even my learned adversary, Dr. Exner, agreed that that is the law.
Secondly, certainly, we must know what crimes it is that are sought to be excused. Are these the motives for what crimes? Counsel says they are bare on their motives. Was it their motive in shooting American or British fliers, that there were some violations on the part of the Russians as they claim? The only way, it seems to me, that evidence of this character is admissible would be to bring it under the doctrine of reprisal very strictly by taking specific offenses and saying: "This offense we admit, but we committed it in reprisal for certain other specified offenses."
I submit that general allegations of this character and relating to prisoners of war are admittedly inadmissible and carry us far afield in the trial of this case.
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DR. STAHMER: May I point out one more fact: For instance, I have here a telegram sent by the Foreign Office representative with the High Command of the Army to the Foreign Office, dated 12 August 1941. In other words, this is an official document, and until now the Prosecution has submitted official documents in considerable numbers which have been used as evidence against the defendants. If now an official document is being produced here to exonerate the defendants, I think that this also ought to be adinitted and to the same extent, provided that this is legally permissible. The formal side of the matter is that we have here a telegram, as I said, from a representative of the Foreign Office with the Army High Command, that is, from an official authority, addressed to the Foreign Office, dated 12 August 1941. It says here, for instance: "In the captured operational report Number 11, of the 13th of last month, 10 o'clock, of the staff of the 26th Division, 1 kilometer west of Slastjena in the forest north of Opuschka it says: 'The enemy left about 400 dead on the battlefield..."'
THE PRESIDENT: You must not read it, as we are discussing its admissibility.
DR. STAHMER: I beg your pardon. I misunderstood you, Mr. President, you asked me what document...
THE PRESIDENT: The date of the White Book.
DR. STAHMER: The date of the White Book, I see, we misunderstood each other; it is Berlin, 1941.
THE PRESIDENT: That is not a date, that is a year.
DR. STAHMER: It says, "Bolshevist Crimes against the Laws of War and Humanity. Documents compiled by the Foreign Office, First Volume, Berlin, 1941." That is the name of the document; the date of its publication is not apparent from the book itself. The individual documents and preliminary proceedings are contained in this book, followed by a number of records which have individual dates.
THE PRESIDENT: Then there is nothing to show when that document was communicated, either to the Soviet Government or when it was communicated -- if it was -- to Geneva or to the Protecting Power.
DR. STAHMER: It was forwarded to Geneva. It was duly handed to the Red Cross in Geneva.
THE PRESIDENT: When?
DR. STAHMER: In 1941. I had proposed to obtain these books from Geneva and to bring in information from the Geneva Red Cross.
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Mr. President, may I once more point out that it is an official document published by the Foreign Office. It is a series of reports compiled in an official publication.
THE PRESIDENT: That is not the real point that the Tribunal is considering. The question is, how can you justify in a trial of the major war criminals of Germany, evidence against Great Britain, or against the United States of America or against the U.S.S.R. or against France? If you are going to try the actions of all those four signatory powers, apart from other considerations, there would be no end to the Trial at all, and their conduct has no relevance to the guilt of the major war criminals of Germany, unless it can be justified by reference to the doctrine of reprisal, and this cannot be justified in that way. And therefore the Tribunal considers the document is irrelevant.
DR. STAHMER: I now turn to the subject of aerial warfare, evidence on Page 25 of my trial brief. Relevant to the question of guilt is the question whether the German Air Force started to attack open cities only after the British Air Force had carried out a great number of raids against nonmilitary targets.
SIR DAVID MAXWELL-FYFE: My Lord, I object to this evidence. I was not quite sure whether Dr. Stahmer had passed dealing with this evidence with regard to the air war, or whether he was illustrating his argument. I want to make it quite clear that I object to the first part of it as being too remote, that is, the evidence about the various conferences which took place with regard to the regulation of aerial warfare.
With regard to the second part of the evidence, I object to the documents which purport to show that Great Britain attacked nonmilitary targets. Where I have been able to check the allegations, I find there is a complete dispute as to whether the targets were military or nonmilitary targets, and therefore I cannot accept the German official reports as being evidence of any purported value on their part, and I respectfully submit that, unless the Tribunal had authority from the Charter, it ought to take the same line.
I make these two additional points to the points raised by my learned friends, General Rudenko and Mr. Justice Jackson, on the general question. I do not want to take up more time with the argument by developing that point. I will be pleased to help with any ispect of it. "
THE PRESIDENT: It seems to me, Dr. Stahmer, that this matter stands upon exactly the same footing as the matter upon which we have just ruled.
DR. STAHMER: That is right. I believe that from this book on aerial warfare one document is of importance in my opinion, which
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is quoted on Page 27. It. is merely a statement by the French General Armengaud concerning the fact that the German Air Force operated in Poland in accordance with the laws of warfare and attacked military targets exclusively. I believe there will be no objection to reading at least this quotation. It is Page 27.
THE PRESIDENT: Page 27 of the trial brief?
DR. STAHMER: Page 27 of the trial brief. There I give a quotation from General Armengaud, the French Air Attache in Warsaw, of 14 September 1939.
THE PRESIDENT: Yes.
DR. STAHMER: There it says: After the outbreak of war the German Air Force under its Commander-in-Chief, Goering, did not, by order of Hitler, attack any open cities in Poland; this was confirmed by Buttler, the British Under Secretary for Foreign Affairs on 6 September 1939, and by the French Air Attache in Warsaw on 14 September 1939 (Documents 41 and 46 of the White Book). The latter, General Armengaud, says literally:
"I must emphasize that the German Air Force acted according to the laws of war; it attacked military targets only and, if civilians were often killed or wounded this happened because they were near the military targets. It is important that this should be known in France and in England, so that no reprisals will be taken where there is no cause for reprisals, and so that total aerial warfare will not be let loose by us."
THE PRESIDENT: Dr. Stahmer, what is the origin of that?
DR. STAHMER: May I have a look? It is contained in the document concerning the bombing war, Number 46, "Report of the French Air Attache in Warsaw, General Armengaud." It is dated 14 September 1939, and then comes the report from which I have already quoted.
THE PRESIDENT: Yes.
DR. STAHMER: I have submitted it.
THE PRESIDENT: Yes.
DR. STAHMER: And now I proceed to Page 30 of the trial brief. And in Paragraph 10, 1 refer to the creation of the Secret State Police by the Defendant Goering. A passage is quoted there from the book, Hermann Goering, the Man and His Work, Document Book 2, Page 53 and 54. 1 submit it as Document Number 44, and I quote from it the following passage:
"It can be seen from the big Stettin trial and also from others, that Goering took ruthless measures against men who acted on their own authority against his instructions.
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"The Prime Minister looked into hundreds of individual cases in connection with the supervision of political prisoners. He did not wait until he was asked; the offer was made on his own initiative.
"On the occasion of the Christmas amnesty of 1933, he ordered the release of nearly 5,000 prisoners from the concentration camps. 'Even they must be given a chance.' It would have been only too understandable if those released had found doors and gates closed to them whichever way they turned. That, however, would not be in keeping with the spirit of this act of mercy. Nobody was to consider himself shut out. Therefore, Goering in a clearly worded decree ordered that no difficulties were to be placed in the way of those released, by the authorities or by the public. If this action were to have any point, every effort must be made to take back these people, who had sinned against the state, into the community again as full fellow Germans."
And from the last paragraph, I read the second sentence:
"In September 1934 he ordered the release of an additional 2,000 prisoners in a second big amnesty."
In this connection I beg to offer a telegram which I received a few days ago, and I request that it be admitted as evidence. It is an unsolicited telegram originating from a certain Hermann Winter, Berlin W 20, Eisenach Street, 118. It has been included in the document book which I submit. I believe it is the last document in my document book.
MR. JUSTICE JACKSON: If we are to examine unsolicited correspondence or telegrams, if it is to become evidence, I have a washbasket full of it in my office that, if that kind of material could be used as evidence in this case without any verification, I could bring here in rebuttal. It does seem to me that we should know something more about this than that just a wire has come in from some unknown person who may not even have been the signer; maybe it is an assumed name. I think we are entitled to a little better foundation than that.
THE PRESIDENT: Dr. Stahmer, have you any other basis?
DR. STAHMER: I have no other basis, and I beg to have your decision whether this telegram is admissible as evidence.
THE PRESIDENT: Well, I do not think we could admit it simply as a telegram which has been received by you from an unknown person.
DR. STAHMER: I request your decision. Is it being refused? I am coming to the end, Page 34.
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THE PRESIDENT: Of the trial brief?
DR. STAHMER: Page 34 of the trial brief, Figure 12. With respect to the question of whether one could blame the defendants for having had confidence in Hitler and following him, it is important to know Churchill's attitude, expressed in his book Step by Step, and I am quoting two passages, Document Book Number 2, Page 46.
MR. JUSTICE JACKSON: This is in 1937, before the events with which we have mainly been dealing here. I do not think it is very important. Mr. Churchill's speeches are well known, but I do think that we waste time going into Mr. Churchill's opinions back in 1937, before the event, when he is doubtless in the same position as Dahlerus, the witness, with reference to his knowledge of what was going on behind the scenes.
THE PRESIDENT: Inasmuch as we have already received this book and some passages from it, you may state this.
DR. STAHMER: I may state it? Thank you. On Page 187, in an article, "Friendship with Germany," of 17 September 1937, is written:
"One can condemn Herr Hitler's system and still marvel at its patriotic achievement. Should our country be defeated, I could only desire that we would find an equally indomitable champion who would give us our courage again..."
THE PRESIDENT: I only said that you could read it because you had read from this book of Mr. Churchill's, but at the same time it seems to be absolutely irrelevant.
DR. STAHMER: I did not -- Oh, I see. May I refer to the quotation on Page 323 which is also a description of Hitler's personality. I consider it of importance especially because I attach considerable weight in particular to Churchill's judgment. It says: "Our leadership must at least..."
THE PRESIDENT: But, Dr. Stahmer, do you not think we have heard sufficient about Hitler's personality?
DR. STAHMER: Yes, but not from that source. If the Tribunal....
THE PRESIDENT: Presumably the Defendant Goering knows more about Hitler than Mr. Churchill.
DR. STAHMER: If the Tribunal does not wish it to be read, then of course, I will abide by that wish.
THE PRESIDENT: I think it is cumulative.
DR. STAHMER: Well, in that case I have finished. I may still of course keep in reserve the evidence which I have not been able to submit up to now, about which I spoke this morning. I said
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this morning, I had a certain amount of evidence which I have not been able to submit because I have not received it yet.
THE PRESIDENT: Yes.
MR. JUSTICE JACKSON: Would this be a convenient time, if Your Honor please, to make the record concerning the documents which I was to offer formally for the record?
THE PRESIDENT: I do not quite follow? What documents are you referring to?
MR. JUSTICE JACKSON: The ones used in cross examination...
THE PRESIDENT: Yes, certainly.
MR. JUSTICE JACKSON: ... which Your Honor spoke to me about.
THE PRESIDENT: Yes.
MR.JUSTICE JACKSON: I understand they have been handed to the Secretary and they have been marked.
The affidavit to Halder is USA-779. It is offered.
Document Number 3700-PS is offered as Exhibit USA-780; Document Number 3775-PS is offered as Exhibit USA-781; Document Number 3787-PS is offered as Exhibit USA-782; Document Number 2523-PS is offered as Exhibit USA-783; Document Number 014-PS is offered as Exhibit USA-784; Document Number 1193-PS is offered as Exhibit USA-785; Document Number EC-317 is offered as Exhibit USA-786; Document Number 3786-PS is offered as Exhibit USA-787; Document Number 638-PS is offered as Exhibit USA-788; Document Number 1742-PS is offered as Exhibit USA-789.
M. CHAMPETIER DE RIBES: Mr. President, Dr. Stahmer in his presentation did not speak of Document Number Goering-26. It concerns a note from the German Government to the French Government relating to the treatment of German prisoners of war in France dated 30 May 1940. The reasons which made us reject the White Book from the discussion make it necessary to reject this document too. I gather that Dr. Stahmer realized that and, therefore, did not speak of it any more, but I would like him to be assured that this document has been definitely rejected from the discussion.
DR. STAHMER: I have not mentioned the document. I withdraw it.
THE PRESIDENT: I call on Counsel for the Defendant Hess.
DR. SEIDL: Mr. President and Your Honors: Before commencing the submission of evidence I have to make the following remarks at the request of the Defendant Hess:
The Defendant Hess contests the jurisdiction of the Tribunal where other than war crimes proper are the subject of the Trial.
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However, he specifically assumes full responsibility for all laws or decrees which he has signed. Furthermore, he assumes responsibility for all orders and directives which he issued in his capacity as Deputy of the Fuehrer and Minister of the Reich. For these reasons he does not desire to be defended against any charges which refer to the internal affairs of Germany as a sovereign state. That applies in particular to the relations between Church and State, and similar questions. I shall, therefore, submit evidence only with reference to questions in the clarification of which other countries can have a justified interest. This applies, for instance, to the tasks and activities of the foreign organization of the NSDAP. Beyond that, evidence will be submitted to the Tribunal only insofar as this is necessary to ascertain the historical truth. This applies, among other things, to the motives which caused Rudolf Hess to fly to England and to the purposes for which he did it.
The evidence which I have prepared is collected in three document books. In view of the acceleration of the Trial desired by the Tribunal, I shall forego quoting any documents whatsoever from the first book and ask the Tribunal to take cognizance only of those parts of the document book which have been marked in red. I shall read only the affidavit which is at the end of the document book, and that is the affidavit of the former secretary of the Defendant Rudolf Hess, Hildegard Fath, and I shall read furthermore ...
THE PRESIDENT: Dr. Seidl, if your are passing from your opening remarks and going to deal with the documents, I think it is right to point out to you that there can be no challenge to the jurisdiction of this Court, here. Article 3 provides that the Tribunal shall not be challenged by the Prosecution or by the Defendants or their Counsel, and the Tribunal cannot hear any argument upon that subject. Now you can go on with your documents.
DR. SEIDL: There will furthermore be read from the second volume the record of a conversation between the Defendant Rudolf Hess and Lord Simon, which took place on 10 June 1941 in England. So as to prevent interruption in the reading of the documentary evidence, I shall today read only the affidavit of the witness Hildegard Fath, Page 164 of the document book. The affidavit reads as follows:
"Having been advised of the consequences of a false affidavit, I declare under oath the following, which is to be submitted to the International Military Tribunal in Nuremberg:
Then come the "Personal Data;" and I am now quoting literally from Figure 2:
"I was employed as private secretary of the Fuehrer's Deputy, Rudolf Hess, in Munich, from 17 October 1933 until his flight to England on 10 May 1941.
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"Beginning in the summer of 1940 -- I cannot remember the exact time -- I had, by order of Hess, to obtain secret weather reports about weather conditions over the British Isles and the North Sea, and to forward them to Hess. I received the reports from a Captain Busch. In part I also received reports from Miss Sperr, the secretary of Hess with his liaison staff in Berlin.
"Hess left a letter behind on his departure by air for England, which was handed to the Fuehrer at a time when Hess had already landed in England. I read a copy of this letter. The letter began with words more or less like this:
"'My Fuehrer; when you receive this letter, I shall be in England.' I do not remember the exact wording of the letter. Hess occupied himself in the letter mainly with the proposals which he wanted to submit to England in order to achieve peace. I can no longer remember the details of the proposed settlemcnt. I can however state definitely that no word was mentioned about the Soviet Union or about the idea that a peace treaty should be concluded with England in order to have the rear free on another front. If this had been discussed in the letter, it certainly would have been impressed upon my memory. From the content of the letter the definite impression was to be gained that Hess undertook this extraordinary flight in order to prevent further bloodshed, and in order to create favorable conditions for the conclusion of a peace.
"In my capacity as secretary of long standing, I have come to know Rudolf Hess quite well and his attitude towards certain questions. If I am told now that, in a letter of the Reich Minister of Justice to the Reich Minister and Chief of the Reich Chancellery, Dr. Lammers, of 17 April 1941, it was mentioned that the Fuehrer's Deputy had discussed the introduction of corporal punishment against Poles in the annexed Polish territories, I cannot believe that this attitude of the department headed by Hess was due to any personal decision of his. Such a proposal would be totally contradictory to the behavior and attitude which the Fuehrer's Deputy displayed with regard to similar questions on other occasions."
I shall refrain from reading the affidavit of the witness Ingeborg Sperr, Page 166 of the document book.
From the first two volumes of the document book I wish still, as I have already said, to read only parts from a discussion between Hess and Lord Simon. However, in order to prevent the report of this discussion from being interrupted, I ask permission of the Tribunal to read this document to the Tribunal next Monday?
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THE PRESIDENT: Yes, certainly. You mean not to go on any more now?
DR. SEIDL: With the permission of the Tribunal, I shall stop now.
THE PRESIDENT: Have you no other document you wish to produce?
DR. SEIDL: I beg your pardon? Yes, there are some documents in Volume 3 of the document book; but, however, I should prefer to submit these documents coherently to the Tribunal.
THE PRESIDENT: Very well, Dr. Seidl, if you wish it, we will adjourn now.
[The Tribunal adjourned until 23 March 1946 at 1000 hours.]