Afternoon Session
MARSHAL: May it please the Court, I desire to announce that the Defendants Kaltenbrunner and Seyss-Inquart will be absent from this afternoon’s session due to illness.
THE PRESIDENT: I have an announcement to make.
When the attention of the Tribunal was called by the Defendant Hess to the absence of his counsel, the Tribunal directed that the presentation of the individual case against Hess be postponed, so that counsel could be present when it was presented. So far as the cross-examination of witnesses who testified to matters affecting the general case and not against Hess specifically is concerned, it is the view of the Tribunal that the cross-examination conducted by counsel representing the defendants equally interested with Hess in this feature of the case was sufficient to protect his interests, and the witnesses will therefore not be recalled.
The Tribunal has received a letter from the Defendant Hess dated 30 January 1946, to the effect that he is dissatisfied with the services of counsel who has been appearing for him and does not wish to be represented by him further, but wishes to represent himself.
The Tribunal is of the opinion that, having elected, in conformity with Article 16 of the Charter, to be represented by counsel, the Defendant Hess ought not to be allowed at this stage of the Trial to dispense with the services of counsel and defend himself. The matter is of importance to the Tribunal, as well as to the defendant, and the Tribunal is of the opinion that it is not in the interests of the defendant that he should be unrepresented by counsel.
The Tribunal has therefore appointed Dr. Stahmer to represent the Defendant Hess, in place of Dr. Von Rohrscheidt.
[Turning to M. Dubost] Yes, M. Dubost.
M. DUBOST: I beg the Tribunal to excuse me; I was completing the work which they had requested me to do in relation to concentration camps. In a few moments, when I have completed the exposé on the question of prisoners of war, I shall present to the Tribunal the end of the French presentation concerning concentration camps. This will not be much, for we shall have only a few documents to cite. Subject to counter evidence which the Defense may bring, the systematic repetition of the same methods seems so far sufficiently established.
We were at the point of reading a document of the Dutch Government, which was already presented to the Tribunal under Document Number F-224 (Exhibit Number RF-324) and which establishes that a protest was formulated, following the secret condemnation to death and the execution of three officers: Lieutenants J. J. B. ten Bosch, B. M. C. Braat, and Thibo.
I think that the document to which I alluded this morning, which is the official report of the French Government concerning prisoners, is now in the hands of the Tribunal. It is the document submitted by M. Herzog under Exhibit Number RF-46, Document Number UK-78. I ask the Tribunal to excuse me, as I cannot present this document again. I have no more copies.
It is evident from this document that the Nazis had a systematic policy of intimidation. They strove to keep the greatest possible number of prisoners of war in order to be able, if necessary, to exercise efficacious pressure over the countries from which these prisoners came. This policy was exercised by the irregular or improper capture of prisoners, and also by the refusal, which was systematically upheld, to repatriate the prisoners whose state of health would have justified this measure.
Concerning the irregular or improper capture of prisoners of war, we can cite the example of what happened in France after the signing of the armistice.
The report of the Ministry of Prisoners and Deportees, to which we refer, indicates, on Page 4:
“In 1940 certain French military formations laid down their arms at the time of the armistice under the assurance given by the German Army that troops who had thus surrendered would not be taken into captivity. These troops were, nevertheless, captured. The Alpine Army had passed over the Rhône in order to be demobilized and was west of the region of Vienne. They were taken prisoners and were sent to Germany until the end of July 1940.
“Moreover, noncombatant formations of special civilians were led into captivity and imprisoned in accordance with Himmler’s orders, which said that all Frenchmen of military age were to be seized indiscriminately. In short, it was only through the making of special exceptions and the private initiative of unit commanders that all Frenchmen were not transferred to Germany.
“Because of the enormous number of prisoners and the difficulties that faced the German Army in taking all those men to Germany, the German Army decided, in 1940, to create what they called ‘Front-Stalags.’
“The promise had been made to the Vichy Government, which was established after the armistice, that soldiers who were kept in these ‘Front-Stalags’ would be kept in France. Yet, the men in these camps began to be sent to Germany in October 1940.”
In an additional report appended to the document book which is before you, the Ministry of Prisoners and Deportees points out the irregular capture of the troops of the fortified sector of Haguenau, the 22d R.I.F., the 81st B.C.P., the 51st and 58th Infantry Regiments and a North African division. It is Document F-668 which I submit under Exhibit Number RF-361, the pages of which are not numbered, it is appended to the document book. I quote the document:
“Troops of the fortified sector of Haguenau: the 22d R.I.F. and the 81st B.C.P.
“These troops fought until 25 June, 1:30, and only stopped firing after an agreement between the colonel in charge of the fortified sector of Haguenau and the German generals, an agreement which guaranteed the troops the honors of war and particularly that they would not be made prisoners. The 51st and 58th Infantry Regiments, as well as a North African Division, withdrew towards Toul only after an agreement, signed on the 22 June, between the French General Dubuisson and the German General Andreas, at Thuilleaux-Groseilles, Meurthe-et-Moselle, an agreement guaranteeing military honors and confirming that the troops would not be taken prisoners.”
THE PRESIDENT: What official document does this document come from?
M. DUBOST: From the Ministry of Prisoners and Deportees. It is the additional report which was made by the French Government. We submit it under Exhibit Number RF-361.
THE PRESIDENT: Have you got the report on the captivity?
M. DUBOST: This report will be submitted to you, Mr. President.
THE PRESIDENT: It appears to be Addition Number 2 to the report on the captivity, for the attention of the French Delegation to the Court of Justice at Nuremberg.
M. DUBOST: That is correct, Mr. President. The information which I have just read to the Tribunal consists of extracts from a note from Darlan to Ambassador Scapini on 22 April 1941.
THE PRESIDENT: But M. Dubost, is there anything to show that it is an official document, such as this book?
M. DUBOST: This document, Mr. President, bears no relation to the one which I am quoting.
THE PRESIDENT: No, I know it does not, but this is an official document produced by the Republic of France, is it not?
M. DUBOST: Yes.
THE PRESIDENT: How do you show that this Addition Number 2 to the report on captivity is equally an official document with this one? That is what we want to know.
M. DUBOST: Mr. President, it is a report which was submitted in the name of the Government of the French Republic by the delegation which I have the honor to represent.
THE PRESIDENT: Well, you see, this one here is headed “Service of Information of War Crimes, Official French Edition.” Now, that seems to us to be different from this mere typewritten copy, which has on it the “Appendix Number 2 to the Report on the Captivity.” We do not know whose report on the captivity.
M. DUBOST: Mr. President, you have before you the official note of transmission from our government. The clerk of the Court has just handed it to you.
THE PRESIDENT: We have this document, which appears to be an official document, but this addition has no such seal upon it as this has.
M. DUBOST: There is mention of an appendix to this document.
THE PRESIDENT: The other is marked: Appendix. It must be identified by a seal.
M. DUBOST: The covering letter has a seal and the fact that it alludes to the document is sufficient, in my opinion, to authenticate the document transmitted. May I continue?
THE PRESIDENT: No. This document here has a letter attached to it. This document here is not referred to in that letter specifically. Therefore, there is nothing to connect the two documents together.
M. DUBOST: I think there is a manuscript note in the margin. I have not the document before me here and cannot be positive about it but I think there is a manuscript note in the margin.
THE PRESIDENT: The Tribunal wishes you to put this in as one document. I see there is a manuscript note here at the side, in writing, which refers to the Appendix. If you will put the whole thing in together . . .
M. DUBOST: It is all submitted in one file.
Now I wish to read to the Tribunal extracts from two letters addressed to the German Armistice Commission at Wiesbaden by the ex-Ambassador Scapini, both dated 4 April 1941. The Tribunal will find them reproduced in the document book before them, Pages 16, 17, 18, 19, 20, 21, and 22:
“4 April 1941.
“M. Georges Scapini, Ambassador of France.
“To his Excellency Monsieur Abetz, German Ambassador in Paris.
“Subject: Men captured after ‘the coming into force of the Armistice Convention and treated as prisoners of war. . . .’ ”
At the bottom of the page:
“I. The Geneva Convention applies only during a state of war as far as captures are concerned. Armistice, however, suspends war operations; therefore, any man captured after the Armistice Convention came into force and treated as a prisoner of war, is wrongfully retained in captivity. . . .”
Page 17, third paragraph:
“The Armistice Convention, in its second paragraph, states only that the French Armed Forces stationed in regions to be occupied by Germany are to be brought back quickly into unoccupied territory and demobilized, but does not say that they are to be taken into captivity, which would be contrary to the Geneva Convention. . . .”
Fifth paragraph of the same page:
“1. Civilians. If it is admitted that civilians captured before the armistice cannot be treated as prisoners of war, as discussed in my previous letter, surely there is all the more reason not to consider as such those captured after the armistice. I note in this respect that captures, some of which were collective, were carried out several months after the end of hostilities. . . .”
Then on Page 18, the top of the page:
“To the categories of civilians defined in my first letter, I wish to add one more—that of demobilized civilians who were going back to their homes in the occupied zone after the armistice and who, more often than not, were captured on their way home and sent into captivity as a result of the initiative of local military authorities.
“2. Soldiers. As such I would define, by convention, men who, though freed after the armistice, could not for some reason—due to the difficult circumstances of that period—be provided with the regular demobilization papers. Many of them were captured and taken into captivity under the same condition as those mentioned above. . . .”
I think the Tribunal will not require the reading of that example, but if the President wishes, I shall read it.
THE PRESIDENT: No.
M. DUBOST: Let us turn to Page 19, the last paragraph, entitled:
“A. Civilians not subject to military service.
“It is obvious that these men could not be considered soldiers according to French law. They can be classified, according to age, into three groups:
“(a) Men under 21 not yet called to the colors. Example: Flanquart, Alexandre, 18 years old, captured by the German troops at Courrières, Pas-de-Calais, at the time of the arrival of the latter in that region. His address in captivity was Number 65/388, Stalag II-B.
“(b) Men between 21 and 48 who were not mobilized, who were demobilized, or who were considered unfit for service.”
There follows a rather lengthy list which the Tribunal will perhaps accept without my reading it. It consists merely of proper names. In the middle of the page:
“(c) Men specially assigned to the army. I will classify them into two groups:
“1. Men mobilized into special corps, which are military formations established at the time of the mobilization by different ministerial departments, according to the following chart . . . .”
At the top of Page 21:
“2. Men specially assigned, who at mobilization were kept in the positions which they held in time of peace in military services or establishments. Example: Workmen in artillery depots.
“Civilians specially assigned. Contrary to those mentioned above, the civilians who were specially assigned did not belong to military formations and were not subject to military authority. Nevertheless they were arrested. Example:”—I skip several lines—“Moisset, Henri, specially assigned to the Marret-Bonin factory.”—I skip a few more lines.
“Address in captivity: Number 102 Stalag II-A.”
Those people were not all freed, far from it. Some remained prisoners until the end of the war.
We shall cite now a document submitted under Exhibit Number RF-362 (Document Number F-224), the text of which is in your document book, on Page 15a. This text may be summarized in a few words. It is the story of Dutch officers who were freed after the capitulation of the Dutch Army and recaptured shortly afterwards and sent in captivity to Germany. Paragraph 3 of this document:
“On 9 May 1942 a summons addressed to all regular officers of the former Dutch Army who were on active service on 10 May 1940 was published in the Dutch newspapers, according to which they were to present themselves on Friday, 15 May 1942, at the Chassée Barracks in Breda . . . .”
Paragraph 5:
“More than one thousand regular officers reported to the Chassée Barracks on 15 May 1942. The doors were closed after them. . . .”
Paragraph 7:
“A German officer of high rank came into the barracks and declared that the officers had not kept their word to undertake no action against the Führer and, as a result of this, they were to be kept in captivity. . . .”
The following paragraph states that “they were taken from the station at Breda to Nuremberg, in Germany.”
Numerous obstacles were placed in the way of the release of French prisoners of war who, for reasons of health, should have been sent back to their families. I shall quote a document already submitted under Exhibit Number RF-297 (Document Number F-417), Page 23 of your document book; and I read, Paragraph 1:
“The question of releasing French generals, prisoners of war in German hands, for reasons of health or age was taken up on several occasions by the French authorities.”
This reproduction of the stencil is not quite clear. I continue with Paragraph 2:
“So far as this question is concerned, the Führer has always refused to consider either their release or allowing them to be placed in hospitals in neutral countries.”
Paragraph 3:
“Today release or sending to hospitals is more out of the question than ever. . . .”
And a written note reads: “No reply to be given to the French note.”
This note, in fact, was addressed by the Supreme Command of the German Army to the German Armistice Commission, who had asked for instructions as to whether or not they should reply to the request concerning the release of French generals who were ill, a request made by the Vichy Government.
Much more serious measures were undertaken against our prisoners of war by the German authorities when, for reasons of a patriotic nature, some of our prisoners gave the Germans to understand that they were not willing to collaborate with Germany. The German authorities considered them as incapable of being assimilated and dangerous; their courage and their determination gave much concern to Germany, and the measures taken against them amounted to nothing less than murder. We know of numerous examples of murder of prisoners of war. The victims were mainly: 1) men who had taken part in commando actions; 2) airmen; 3) escaped prisoners. These murders were carried out by means of deportation and the internment of these prisoners in concentration camps.
While interned in these camps, they were subjected to the regime about which you know and which was bound to cause their death, or else they were killed quite simply with a bullet in the back of the neck, according to the KA method which has been described by our American colleagues and on which I will not dwell. In other cases they were lynched on the spot by the population, in accordance with direct orders, or with the tacit consent of the German Government. In yet other cases, they were handed over to the Gestapo and the SD, who, as you will see at the end of my statement, during the last years of the occupation had the right to carry out executions.
With the Tribunal’s permission, we shall study two cases of extermination of combat troops captured after military operations: that of commandos and that of airmen.
As the Tribunal knows, men who were commandos were almost always volunteers. In any case, they were selected from among the most courageous fighters and those who showed the greatest physical aptitude for combat. We can consider them, therefore, as the elite and the order to exterminate them as an attempt to annihilate the elite and spread terror through the ranks of the Allied Armies. From a legal point of view the execution of the commandos cannot be justified. The Germans themselves, moreover, used commandos quite extensively; but whereas, in the case of their own men being taken prisoners, they always insisted that they be recognized as belligerents, they denied that right to our men or to those of the Allied Armies.
The main order concerning this was signed by Hitler on 18 October 1942, and it was extensively carried out. Moreover, this order was preceded by other orders of the OKW, which show that the question had been carefully studied by the General Staff before becoming the subject of a final order by the head of the German Government.
Under Document Number 553-PS, the Tribunal will find, on Page 24 of the document book, an order signed by Keitel which we submit as Exhibit Number RF-363. This order prescribes that all isolated parachutists or small groups of parachutists carrying out a mission shall be executed. It is dated 4 August 1942.
THE PRESIDENT: Do not read it.
M. DUBOST: I thank the Tribunal for sparing me the reading of it.
On 7 October 1942 a communiqué of the OKW, disseminated by the press and radio, announced the decision taken by the High Command to execute saboteurs. On Page 26 the Tribunal will find in the document book extracts from the Völkischer Beobachter of 8 October 1942 (Document Number RF-364):
“In future all terrorist and sabotage units of the British and their accomplices, who do not behave as soldiers but as bandits, will be treated as such by the German troops and shot on the spot without mercy, wherever it may be.”
Under the Exhibit Number RF-365 (Document 1263-PS), we submit the minutes of a meeting of the General Staff of the Wehrmacht, dated 14 October 1942. Paragraph 3:
“During the era of total warfare sabotage has become one of the most important elements in the conduct of war. It is sufficient to state our attitude to this question. The enemy will find evidence of it in the reports of our own propaganda units. . . .”
Page 29, the end of Paragraph 3:
“Sabotage is an essential element . . . we ourselves have strongly developed this means of combat.”
Then the sixth paragraph.
“We have already announced by radio our intention of liquidating, in future, all groups of terrorists and saboteurs acting like bandits. Therefore the WFSt has only to issue regulations to the troops how to deal with terrorist and sabotage groups.”
Page 30. The Tribunal will see what orders were given concerning the treatment of what the German General Staff called groups of terrorists and British saboteurs. It is certain that the German General Staff never called their own commandos groups of terrorists and saboteurs.
Paragraph A refers to groups of the British Army without uniform or in German uniform. I quote:
“In combat or in flight they are to be killed without mercy.”
Paragraph B:
“Members of terrorist and sabotage groups of the British Army wearing uniform, who in the opinion of our troops are guilty of acting dishonorably or in any manner contrary to the law of nations, are to be kept in separate custody after capture. . . .
“Instructions concerning the treatment to be inflicted upon them will be given by the WFSt in agreement with the Army legal service and the Counter-Intelligence Department, Foreign Section (Amt Ausland Abwehr).”
Finally, Page 31, Paragraph 2:
“Violation of the laws of war by terrorist or sabotage troops is in the future always to be assumed when individual assailants as saboteurs or agents, regardless of whether they were soldiers or whatever their uniform might be, place themselves outside the laws of war by committing surprise attacks or brutalities which in the judgment of our troops “are inconsistent with the fundamental rules of war.”
Paragraph 3:
“In such cases the assailants will be killed without mercy to the last man, in combat or in flight.”
Paragraph 4:
“Confinement in prisoner-of-war camps, even temporarily, is forbidden.”
Thus in carrying out these orders, if British soldiers, even in uniform, were captured during a commando operation, the German troops were to judge whether they had acted according to the laws of war or not; and without any appeal, subordinates could annihilate them to the last man, even when they were not engaged in active fighting. These orders were applied to British commandos.
We shall now quote Document Number 498-PS, which was submitted by our American colleagues under Exhibit Number USA-501 and which confirms the information which we have just given to the Tribunal by the reading of the preceding documents. It seems useless to read this document.
THE PRESIDENT: M. Dubost, there are two points to which I wish to draw your attention. In the first place, it is said that you are not offering these documents in evidence, you are simply reading them, and they must be offered in evidence so that the document itself may be put in evidence. You have not offered in evidence any of these documents; you have just been reading from them or have given them numbers.
M. DUBOST: Mr. President, I have submitted them all—absolutely all—except those which were already submitted by our colleagues; and all were filed with a number, and can be handed to you immediately. I shall ask the French secretary to hand them to you with the exhibit numbers which I read out.
THE PRESIDENT: They have all been put in evidence already?
M. DUBOST: Mr. President, some have been put in evidence and I quoted them with their exhibit numbers; but those which have not been submitted, I shall give French numbers when submitting.
THE PRESIDENT: You are saying, “have been put in evidence by some other member of the Prosecution”; is that right?
M. DUBOST: That is correct, Mr. President. When I quote them I give the number under which they were filed by my American colleagues.
THE PRESIDENT: That was filed by the American Prosecution, was it not: 498?
M. DUBOST: 498-PS on Page 32 has already been filed by my American colleagues under the Number USA-501, as I said before, sir. I shall not read it. I shall merely comment on it briefly.
THE PRESIDENT: Very well. With reference to the document which preceded it on Pages 27, 29, 30, and 31 . . .
M. DUBOST: I shall ask the French secretary to give them to you with the numbers under which they were filed.
THE PRESIDENT: Have they been filed by the American prosecutor too?
M. DUBOST: Not all, Mr. President. Some were filed by the American Prosecution, others were filed by me.
THE PRESIDENT: What the Tribunal wants you to do is, when you put in a document, if it has not already been put in, give it a number and announce the exhibit number so that the record may be complete. Is that clear?
M. DUBOST: It is clear, Mr. President, but I believe that I have done so from the beginning, since the French secretary has just given you the file.
THE PRESIDENT: You may have put numbers on the documents, but you have not announced them in some cases.
There is another matter which I wish to state and it is this: When I spoke before, what I asked you to do was to confine yourself to any new points, and you are now giving us evidence about commandos and about British commandos, all of which has been already gone into in previous stages of the Trial, and that appears to us to be unnecessary.
M. DUBOST: The Tribunal will pardon me, but I have not read any of the documents already mentioned. The documents I read were documents not cited before. I had just reached a document which had been mentioned before, and I asked the Tribunal to excuse me from even commenting on it, since I thought the document was already well known to the Tribunal.
THE PRESIDENT: Well, we have had a good deal of evidence already about the treatment of commandos and sabotage groups, evidence, if I remember right, which attempted to draw some distinction between troops which were dropped from the air, for instance, close up to the battle zone and troops that were dropped at a distance behind the battle zone. You had quite a lot of evidence upon that subject. If there is anything which is of special interest to the case of France we would be most willing to hear it, but we do not desire to hear cumulative evidence upon subjects which we have already heard.
M. DUBOST: I did not think that I had brought cumulative proof to the Tribunal in reading documents which had not previously been read; but since that is so, I shall continue, but not without emphasizing that, in our view, the responsibility of Keitel is seriously involved by the orders which were given and by the execution of these orders.
Document Number 510-PS, Page 48, has not been read. We submit it as Exhibit Number RF-367, and we ask the Tribunal to take judicial notice of it. It concerns the carrying out of the orders which were given concerning the landing of British detachments at Patmos.
A memorandum from the General Staff to the commander of the different units, Document Number 532-PS, which is the appendix to the Tribunal’s document book, repeats and specifies the instructions which the Tribunal knows and does not bring anything new to the case. We submit this document as Exhibit Number RF-368, and we ask the Tribunal to take judicial notice of it.
We shall now deal with the execution of Allied airmen who were captured. From the statement which was made on this question, the Tribunal has learned that a certain number of air operations were considered as criminal acts by the German Government, which indirectly encouraged the lynching of the airmen by the population or their immediate extermination by the action “Sonderbehandlung” (special treatment); and need not be discussed again. This was the subject of Document Number USA-333, which has already been cited, and Document Number USA-334.
Within the scope of these instructions, orders were given by the letter of 4 June 1944 to the Minister of Justice to forbid any prosecution of German civilians in connection with the murder of Allied airmen. This is the subject of Document Number 635-PS, which you will find in the appendix to the document book. This document will become Exhibit Number RF-370.
“The Reich Minister and Head of the Reich Chancellery, 4 June 1944.
“To the Reich Minister of Justice, Doctor Thierack.
“Subject: Lynch law for Anglo-American murderers.
“My dear Dr. Thierack:
“The Chief of the Party Chancellery has informed me of his secret memorandum, a copy of which is enclosed, and has asked me to make it known to you also. I am complying with this, and ask you to consider to what extent you wish to inform the tribunals and the public prosecutors.”
On 6 June, two important conferences were held between Kaltenbrunner, Ribbentrop, Göring (all three defendants), Himmler, Von Brauchitsch, officers of the Luftwaffe, and members of the SS. They decided to draw up a definite list of air operations which would be considered as acts of terrorism.
The original transcript, drawn up by Warlimont and bearing written notes by Jodl and Keitel, is Document Number 735-PS, which I submit as Exhibit Number RF-371. It was decided during this conference that lynching would be the ideal punishment to stop certain types of air operations directed against the civilian population. Kaltenbrunner, for his part, promised the active collaboration of the SD.
THE PRESIDENT: Was it already read?
M. DUBOST: This document, so far as I know, was never read.
PROFESSOR DOCTOR FRANZ EXNER (Counsel for Defendant Jodl): I am protesting against the presentation of Document 532-PS, dated 24 June 1944. That is a draft of an order which was presented to Jodl but which was crossed out by him and therefore annulled.
At this opportunity I would also like to call the attention of the Court to the fact that we, the Counsel for the Defense, did not receive a document book like the one presented to the Tribunal; and it is therefore very hard for us to check and to follow the presentations of the Prosecution. Every morning we receive a pile of documents, some of which partly refer to future and some to past proceedings. But I have not seen a document book in chronological order for weeks. Furthermore, it would be desirable for us to receive the documents the day before. In that case, when testimony is presented, we could be of assistance to both sides.
THE PRESIDENT: Dr. Exner, are you saying that you have not received the document book or that you have not received the dossier?
DR. EXNER: I did not receive the document book, I would like to add something further. Some of the documents which have just been presented were quoted without signatures and without date, and it is questionable whether these so-called documents are to be considered as documents at all.
THE PRESIDENT: Well, I imagine that you have just heard—I have told M. Dubost that he must announce the exhibit number which the French Prosecutor is giving to any document which he puts in evidence. As I understand it, he has been putting numbers upon the documents; but in certain cases he has not announced the number in open court. The document, as you have seen, has been presented; and, as I understand, it has a number upon it, but he has not in every case announced the number; and the Tribunal has told M. Dubost that it wishes and it orders that every document put in by the French Prosecutor should have an exhibit number announced in Court. That meets the one point that you raised.
As to your not having the document book, that is, of course, a breach of the order which the Tribunal has made that a certain number of copies of the documents should be deposited in the defendants’ Information Center or otherwise furnished to defendants’ counsel.
As to Document 532-PS . . . .
[There was a pause in the proceedings while the Judges conferred.]
Dr. Exner, is there anything further you wish to say upon these points, because we are just about to have a recess for a few moments. We would like to hear what you have to say before we have the recess.
DR. EXNER: I have nothing further to add to that; but if I may be permitted to make a further remark, we were advised that it was Your Honor’s wish that we should hear every day what is to be the subject of the proceedings on the following day, which would, of course, be a great help to our preparations. So far, that has never been the case. I myself have never heard what was to be dealt with the following day.
THE PRESIDENT: Thank you. M. Dubost, the Tribunal would like to hear what you have to say upon the points raised by Dr. Exner. First of all, upon the Document 532-PS; secondly, why he did not receive a document book; and lastly, why he has not received any program as to what is to be gone into on the following day.
M. DUBOST: As to the question of program, as Dr. Exner pointed out, the custom of providing it has not been established by the Prosecution. No one has ever given it, neither the French Prosecution nor its predecessors. Perhaps I did not attend the session the day the Tribunal requested that the program should be given. In any case I do not remember that the Prosecution was ever requested to do that.
As far as the document book is concerned, it is possible that this book was not handed to the Defense in the form which is before the Tribunal, that is to say, with the pages numbered in a certain order. However, I am certain that yesterday I sent to the Defense Counsel’s rooms the text in German and several texts in French of all the documents which I was to submit today. I cannot assure the Tribunal that they were handed over in the order in which you have them before you, but I am sure that they were sent.
THE PRESIDENT: As to Document 532-PS?
M. DUBOST: I had not begun to read Document 532-PS, Mr. President, so I could not have concealed the fact that there was a handwritten note in the margin.
THE PRESIDENT: Is it a document that had been put in before?
M. DUBOST: I do not believe so, Mr. President. In my dossier there are a certain number of documents which I have not read, as I knew it was the Tribunal’s wish that I should shorten my presentation; and Document 532-PS, which I submitted under Exhibit Number RF-368, is one of those.
THE PRESIDENT: The document, according to Dr. Exner, is a draft of a decree which was presented to Jodl but was not granted by him. Those were his words, as they came through on the translation; and, therefore, he submits that it is not to be considered and there is nothing to show that the document was ever anything more than a draft.
If so, isn’t it clear that it ought not to be received in evidence?
M. DUBOST: This is a question which the Tribunal will decide after having heard the explanation of Dr. Exner. This document did not seem to me of major importance to my presentation, since I did not read from it. In any case, as I did not read it, I could not have hidden from the Tribunal that there was a handwritten note in the margin. It is certain that this handwritten note is an element to be taken into consideration, and on which the Tribunal will base its decision whether Exhibit Number RF-368 should be accepted or rejected, after having heard the explanation of the Defense.
[A recess was taken.]
DR. NELTE: Mr. President, I had occasion during the recess to talk to my client, Keitel. Before the recess, the French Prosecutor had submitted as evidence Document Number F-668, Exhibit Number RF-361, an extract from a note from Admiral Darlan, addressed to the French Ambassador Scapini. The French Prosecutor believes, as I presume from his words, that he has proved by this that the agreements between German generals and French troops, who had laid down their arms, had not been kept. In view of the gravity of these accusations I would be obliged to the French Prosecution if they would declare, with respect to this document, first, whether these serious accusations of the French Government had also been brought to the attention of the German Government? The French Prosecutor had concluded from this document that the information contained therein was also proved. I would like to point out that it is an excerpt from a note from Admiral Darlan to the French Ambassador, Scapini. It is not clear from this document whether Ambassador Scapini had taken the necessary steps with the German Government or, furthermore, what reply was made by the German Government to this note. For this reason I would like to ask the French Prosecutor to declare whether he can establish from the documents he had whether these serious accusations were brought to the attention of the German Government, and secondly, what reply was made by the German Government. Since these documents of the Armistice Commission are in possession of the victorious powers, it is neither possible for the defendants nor the Defense to produce evidence themselves.
[M. Dubost approached the lectern.]
THE PRESIDENT: [Turning to M. Dubost.] Perhaps the most convenient course would be, if you wish to say anything about the objection which Dr. Nelte has just made, for you to say it now. As I understand it, that objection is that this document, F-668 (RF-361), is a note by Admiral Darlan complaining that certain French troops were surrendered on the terms that they were not to be made prisoners of war, but were afterwards sent to Germany as prisoners of war. What Dr. Nelte says is, was that matter taken up with the German Government and if so, what answer did the German Government give? That seems to the Tribunal to be a reasonable request for Dr. Nelte to make.
M. DUBOST: The reply was given, Mr. President, by Ambassador Scapini’s letter addressed to Ambassador Abetz.
THE PRESIDENT: My attention is drawn to the fact that the two documents to which you refer are dated 4 April. The document to which Dr. Nelte refers is a subsequent document, namely, 22 April. Therefore it does not appear, from documents which were anterior to the document of 22 April, as to what happened afterwards.
M. DUBOST: Mr. President, I, myself, am not aware of this. These documents were forwarded to me by the Prisoners-of-War Department. They are fragmentary archives forwarded by an official French office, which I shall inform of the Tribunal’s wish.
THE PRESIDENT: Perhaps it should be investigated and found out whether the matter was taken up with the German Government and what answer the German Government gave.
M. DUBOST: I shall do so, Mr. President.
THE PRESIDENT: Not at the moment, but in the course of time.
M. DUBOST: I shall have to apply to the French Government in order to discover whether in our archives there is any trace of a communication from the French Government to the German Government dated later than 26 April.
THE PRESIDENT: In the event of your not being able to get any satisfactory explanation, the Tribunal will take notice of Dr. Nelte’s objection, or criticism rather, of the document.
It is pointed out to me, too, the fact that the two earlier documents to which you are referring are documents addressed by the Ambassador of France to M. Abetz, the Ambassador of Germany; and it may be, therefore, that there is a similar correspondence in reference to Document Number F-668 (Exhibit Number RF-361) here in the same file, which is the file of which the French Government presumably has copies, or might have copies.
M. DUBOST: It is possible, but that is only a hypothesis which I do not want to formulate before the Tribunal. I prefer to produce the documents.
THE PRESIDENT: I quite follow; you cannot deal with it for the moment. As to the other matter which is raised by Dr. Exner, the Tribunal considers that Document Number 532-PS, which has been submitted under Exhibit Number RF-368, should be struck out of the Record in so far as it is in the Record. If the United States and the French Prosecutors wish the document to be put in evidence at a future date, they may apply to do so. Similarly the defendant’s counsel, Dr. Exner, for instance, if he wishes to make any use of the document, of course he is at liberty to do so.
In reference to the other matters which Dr. Exner raised, it is the wish of the Tribunal to assist defendants’ counsel in any way possible in their work; and they are, therefore, most anxious that the rules which they have laid down as to documents should be strictly complied with, and they think that copies of the original documents certainly should contain anything the original documents themselves contain.
This particular document, Number 532-PS, as a copy, I think I am right in saying, does not contain the marginal note in the script which the original contains. At any rate it is important that copies should contain everything which is on the originals.
Then there is another matter to which I wish to refer. I have already said that it is very important that documents, when they are put in evidence, should not only be numbered as exhibits, but that the exhibit number should be stated at the time; and also even more important, or as important, that the certificate certifying where the document comes from should also be produced for the Tribunal. Every document put in by the United States bore upon it a certificate stating where it had been found or what was its origin, and it is important that that practice should be adopted in every case.
The only other thing I want to say is that it would be very convenient, both to defendants’ counsel and to the Tribunal too, that they should be informed at least the night before of the program which counsel proposes to adopt for the following day. It is true, as was said, that perhaps that has not been absolutely regularly carried out by the Prosecutor on all occasions; but it has been done on quite a number of occasions within my recollection, and it is at any rate the most convenient practice, which the Tribunal desires should be carried out; and they would be glad to know above all what you, M. Dubost, propose to address yourself to tomorrow; and the Tribunal would be very grateful to know how long the French Prosecutors anticipate their case will take. They would like you, before you finish or at the conclusion of your address this afternoon, to indicate to the Tribunal and to the defendants’ counsel, what the program for tomorrow is to be.
SIR DAVID MAXWELL-FYFE: If Your Honor please, I wonder if I could say one word in regard to the position as to documents, because I had an opportunity during recess of consulting with my friend Mr. Dodd, and also with my friend M. Dubost. All PS documents form a series of captured documents, whose origin and the process taken subsequent to the article, were verified on 22 November by an affidavit by Major Coogan, which was put in by my friend Colonel Storey. It is the submission of the Prosecution, which, of course, it is delighted to elaborate any time convenient to the Tribunal, that all such documents being captured and verified in that way are admissible. I stress the word admissible, but the weight which the Tribunal will attach to any respective documents is, of course, a matter at which the Tribunal would arrive from the contents of the document and the circumstances under which it came into being. That, I fear, is the only reason I ventured to intervene at the moment, that there might be some confusion between the general verification of the document as a captured document, which is done by Major Coogan’s affidavit, and the individual certificate of translation, that is, of the correctness of the translation of the different documents, which appeared at the end of each individual American document. The fact is that my friend, Mr. Dodd, and I were very anxious that that matter should be before the Tribunal, and we should be only too delighted to give to the Tribunal any further information which it desires.
THE PRESIDENT: Does that affidavit of Major Coogan apply to all the other series of documents put in by the United States?
SIR DAVID MAXWELL-FYFE: It applies to PS and I think it is D, C, L, R and EC.
THE PRESIDENT: Does that certificate then cover this particular sheet of paper which is marked 532-PS, and has on it no other identifying mark?
SIR DAVID MAXWELL-FYFE: Yes. The affidavit proves that that was a document captured from German sources; it gives the whole process—what happens after. I have not troubled the Tribunal by reading it, because as such we submit that it is admissible as a submission. Of course, the matter of weight may vary. I do not want the Tribunal to be under a misapprehension that every document was certified individually; what is certified is, of course, a non-captured document. If a document comes from any of the sources mentioned in Article 21, then someone with authority from his government certifies it as coming from one of these sources and that we do individually. But concerning captured documents, we do not make any individual certification; we depend on Major Coogan’s affidavit.
THE PRESIDENT: Yes, but just a moment. Sir David, it is perhaps right to say in reference to this particular document, 532-PS, or the portion of it which has been produced, first of all that the copy which was put before us did not contain the marginal note, and that it is, therefore, wrong. We are in agreement with your submission that it has been certified, as you say, by Major Coogan’s affidavit, which is admissible; but, of course, that has nothing to do with its weight. That is the point on which Dr. Exner was addressing us.
SIR DAVID MAXWELL-FYFE: So I appreciated it, Your Honor.
THE PRESIDENT: It is a document—being a private document and not a document of which we can take judicial notice—which has not been read in court by the United States or other prosecutors, and it is not in evidence now because it has not been read by M. Dubost.
SIR DAVID MAXWELL-FYFE: Your Honor, with that, of course, I do not desire anything further. That is the ruling of the Tribunal. The only part that I did want to stress was that the PS as such is being verified and, of course, subject to reading it in Court, it could be put in.
THE PRESIDENT: Thank you. We quite understand that.
I ought to say, on behalf of the Tribunal, that we owe an apology to the French Prosecutor and his staff, because it has just been pointed out to me that this marginal note does appear upon the translation and, therefore, M. Dubost, I tender to you my apology.
M. DUBOST: I thank you, Mr. President. The Tribunal will certainly remember that this morning Document Number 1553-PS was set aside, which includes in it bills for gas destined for Oranienburg and Auschwitz. I believe that, after the explanation given by Sir David, this Document 1553-PS may now be admitted by the Tribunal since it has already been certified.
THE PRESIDENT: Was it read, M. Dubost?
M. DUBOST: Yes, Mr. President. I was in the process of reading it this morning. It is the 27th document in the second document book of this morning, but the Tribunal rejected it, with the demand that I furnish an affidavit. The intervention of Sir David constitutes this affidavit. I beg the Tribunal to forgive my making this request, but I should be grateful if it would accept the document which was refused this morning.
THE PRESIDENT: Very well.
M. DUBOST: I thank you, Mr. President.
THE PRESIDENT: M. Dubost, it was a question of gas, was it not?
M. DUBOST: That is right.
THE PRESIDENT: There was one bill of lading and then there were a number of other bills of lading which were referred to.
M. DUBOST: Yes. And the whole constituted Document Number 1553-PS, submitted under Exhibit Number RF-350. This document is included in the series covered by the affidavit of which Sir David has spoken to you.
THE PRESIDENT: M. Dubost, if you attach importance to it, would it not be possible for you to give us the figures from these other bills of lading? I mean the amount of the gas.
M. DUBOST: Certainly, Mr. President.
THE PRESIDENT: Just in order that it may be upon the shorthand note.
M. DUBOST: 14 February 1944, gross weight 832 kilos, net weight 555 kilos (destination Auschwitz); 16 February 1944, gross weight 832 kilos, net weight 555 kilos (destination Oranienburg); 13 March 1944, gross weight 896 kilos, net weight 598 kilos (destination Auschwitz); 13 March 1944, gross weight 896 kilos, net weight 598 kilos (destination Oranienburg); 30 April 1944, gross weight 832 kilos, net weight 555 kilos (destination Auschwitz); 30 April 1944, gross weight 832 kilos, net weight 555 kilos (destination Oranienburg); 18 May 1944, gross weight 832 kilos, net weight 555 kilos (destination Oranienburg); 31 May 1944, gross weight 832 kilos, net weight 555 kilos (destination Auschwitz). This appears to me to be all.
To Document 1553-PS is added the statement by Gerstein, and also the statement by the chief of the American service who collected this document.
With the permission of the Tribunal, I shall proceed with the presentation of the crimes of which we accuse the defendants against Allied prisoners of war who were interned in Germany. Document Number 735-PS, Page 68 of the document book, which we submitted a short time ago under Exhibit Number RF-371, is a report on important meetings which brought together Kaltenbrunner, Ribbentrop, and Göring, in the course of which the list of air operations which constituted acts of terrorism was drawn up.
It was decided in these meetings that lynching would be the ideal punishment for all actions directed against civilian populations, which the German Government claimed had the character of terrorism.
On Page 68 Ribbentrop is involved. We read in one of the three copies of the notes of the meetings that were held that day, in the first paragraph, 11th line:
“Contrary to the first proposals of the Minister of Foreign Affairs, who wanted to include all terrorist attacks against the civilian population and consequently air attacks against cities . . . .”
The proposals made by Ribbentrop were far in excess of what was accepted at the time of this meeting. The three lines which follow deserve the attention of the Tribunal:
“Lynch law should be the rule. There was, on the other hand, no question of a judgment rendered by a tribunal or handing over to the police.”
In Paragraph b), bottom of the page:
“. . . one would have to distinguish between enemy airmen who were suspected of criminal acts of this kind and prepare for their admission in the airmen’s camp at Oberursel, and those who should be turned over to the SD for special treatment when the suspicions were confirmed.”
The Tribunal will certainly remember the description which was given of this “special treatment” by the American prosecution. What is involved is purely and simply the extermination of Allied airmen who had fallen into the hands of the German Army.
On Page 69 the Tribunal may read, under Figure 3, the description and the enumeration of the acts which are to be considered as terrorist acts and as justifying lynching.
“(a) Firing weapons at the civilian population, and gatherings of civilians.
“(b) Firing at German airmen who have bailed out of their aircraft.
“(c) Firing weapons at passenger trains and public conveyances.
“(d) Firing weapons at hospital or hospital trains that are clearly marked with a red cross.”
Three lines below:
“Should such acts be established in the course of interrogation, the prisoners must be handed over to the SD.”
This document originates from the Führer’s headquarters. It was drawn up there on 6 June 1944, and it bears the stamp of the Deputy Chief of Staff of the Wehrmacht.
THE PRESIDENT: I think that has all been read, M. Dubost. I think that document was all read before.
M. DUBOST: Mr. President, I was told that it had not been read.
THE PRESIDENT: I have not verified it.
M. DUBOST: We submit Document Number 729-PS, as Exhibit Number RF-372. This document confirms the preceding one. It originates from the Führer’s headquarters, is dated 15 June 1944, and reiterates the orders I have read. But this document is signed by General Keitel, whereas the preceding one was signed “J.” We have not been able to identify the author of this initial.
Document Number 730-PS, which we next submit as Exhibit Number RF-373, is likewise from the Führer’s headquarters, and is also dated 15 June 1944. It is addressed to the Ministry of Foreign Affairs for the attention of Ambassador Ritter. The Tribunal will find it on Page 71 in the document book. This document contains the instructions signed “Keitel” in the preceding document, and it is likewise signed by Keitel.
We shall submit as Exhibit Number RF-374, Document 733-PS, which concerns the treatment which is to be meted out to airmen falling into the hands of the German Army. It is a telephone message from the Adjutant of the Reich Marshal, Captain Breuer.
DR. NELTE: I assume that you have finished with the question of lynching. In the presentation of this case the words “Orders of Keitel” have been used repeatedly. The prosecutor has not read these documents. I would be obliged if the prosecutor would produce a document which contains an order, which raises lynch law to the level of an order, as has been claimed by the Prosecution. The Defendants Keitel and Jodl maintain that such an order was never given, that these conferences concerning which documents have been produced—that these documents never became orders because the authorities concerned prevented this.
THE PRESIDENT: The documents speak for themselves.
M. DUBOST: Does the Tribunal wish to listen to the complete reading of these documents which are signed by Keitel? They are not orders, they are projects. Moreover, I emphasized that point when I announced them to the Tribunal. At Page 80 of our document book, you will find, dated 30 June 1944, with Keitel’s visa:
“Note for meeting.
“Subject: The treatment of enemy terror flyers:
“I. Enclosed, draft of written reply by the Reich Minister of Foreign Affairs to the Chief of the OKW for the Operational Staff of the Wehrmacht.”
I am skipping a paragraph:
“II. The Reich Marshal approves the definition of terror flyer communicated by the OKW, as well as the procedure which is proposed.”
This document is submitted as Exhibit Number RF-375. I have not submitted to the Tribunal a regular formal order; but I have brought three documents which, in my opinion, are equivalent to a formal order because, with the visa of Keitel, we have this note, signed by Warlimont, which states: “The Reich Marshal approves the definition of terror flyer communicated by the OKW, as well as the procedure which is proposed.” This document bears the visa of Keitel.
We shall now submit a document, Number L-154, which has already been submitted by our American colleagues under Exhibit Number USA-335. My colleague has read this text in extenso. I will merely refer to three lines, in order not to delay the proceedings, “In principle, no fighter-bomber pilots brought down are to be saved from the fury of the people.” That text comes from the offices of Albert Hoffmann, Gauleiter and Commissioner for the Defense of the Reich, of the Gau South Westphalia.
Under Exhibit Number RF-376 we shall submit Document Number F-686, on Page 82 of our document book. This is the record of an interrogation of Hugo Grüner on 29 December 1945. He was subordinate to Robert Wagner, Gauleiter of Baden and Alsace. In the last lines of this document, Page 82, Grüner states:
“Wagner gave a formal order to kill all Allied airmen we could capture. In this connection Gauleiter Wagner explained to us that Allied airmen were causing great ravages on German territory, that he considered it was an inhuman war, and that therefore, under the circumstances, any airmen captured should not be considered as prisoners of war and deserved no mercy.”
Page 83, at the top of the page:
“He stated that Kreisleiter, if the occasion offered, should not fail to capture and shoot the Allied airmen themselves. As I have told you, Röhm was assistant to Wagner, but Wagner himself did not speak. I can state that SS General Hoffmann, who was SS chief of the police for the Southwest Region, was present when the order was given to us by Wagner to kill Allied airmen.”
This witness, Hugo Grüner, confesses that he participated in the execution of Allied airmen in October or November 1944.
Passing through Rheinweiler, he (Grüner) noticed that some English or American airmen had been taken out of the Rhine by soldiers. The four airmen were wearing khaki uniforms, were bareheaded, and were of average height. He could not speak to them because he did not know the English language. The Wehrmacht refused to take charge of them.
That is the third paragraph at the bottom of the page and the witness declares—I am reading:
“I told the gendarmes that I had received orders from Wagner to execute any Allied airman taken prisoner. The gendarmes replied that it was the only thing to be done. I then decided to execute the four Allied prisoners and one of the gendarmes present advised the banks of the Rhine as the place of execution.”
On Page 84, Paragraph 1, Grüner describes how he proceeded to assassinate these airmen and admits that he killed them with machine gun shots in the back. In the third paragraph he gives the name of one of his accomplices, Erich Meissner, who was a Gestapo agent from Lorrach, and then he denounces Meissner for having himself killed an airman as he was getting out of his car and was walking toward the Rhine. I read:
“He killed them by firing a machine gun salvo at each of them in the back, after which each airman was dragged by the feet and thrown into the Rhine.”
This affidavit was received by the Police Magistrate of Strasbourg. The document which we shall submit was signed by the magistrate’s clerk of the court as a certified copy. This is how the orders given by the leaders of the German Government were carried out by the German people.
THE PRESIDENT: M. Dubost, I see that it is 5 o’clock now, and perhaps you would be able to tell us what your program would be for tomorrow.
M. DUBOST: Tomorrow we shall complete the presentation of the question of prisoners of war. We shall present to you in an abridged form documents which seem to us to be indispensable, in spite of the hearing of witnesses concerning the camps. There are only a few documents, but they all directly inculpate one or other of the defendants. Then we shall show how the orders given by the leaders of the German Army led subordinates to commit acts of terrorism and banditry in France against the innocent population, and also against patriots who were not treated as francs-tireurs but as ordinary criminals.
We expect to finish tomorrow morning. In the afternoon, my colleague, M. Faure, could begin the presentation of this last part of the French charges concerning crimes against humanity.
THE PRESIDENT: Are you not able to give us any estimate of the length of the whole of the French Prosecution?
M. DUBOST: I believe that three days will be sufficient for M. Faure. The individual charges will be summarized in one-half day by our colleague, M. Mounier, and that will be the end.
THE PRESIDENT: The Tribunal will adjourn now.