Afternoon Session
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents for which Dr. Sauter asked, the Prosecution take the usual line that there is no general objection to extracts being used, but at this stage they reserve their right to challenge admissibility of the extracts on the grounds of relevance.
They will have to look particularly closely at Number 9, the book entitled, Look, the Heart of Europe, and the commentary on it by the late Lord Lloyd George, but they can see that these are particularly matters which can be more conveniently dealt with when they have seen the document book and the extracts are before them.
DR. SAUTER: Mr. President, I can state my position regarding the documents very briefly. In the main, it is a question of books, speeches, and essays by the Defendant Von Schirach. These literary works are in my possession and I shall submit them to the Prosecution along with my document book. With the document book I shall submit to the Tribunal and the Prosecution the individual extracts which I propose to use as evidence, so that the Prosecution will still be able to make any statements it wishes with regard to the individual excerpts.
I believe that is all I have to say on that subject.
DR. SEIDL: Mr. President, on 28 February I made a supplementary motion on behalf of the Defendant Hess. I should be grateful if the Tribunal would inform me whether they wish to hear the argument in regard to this motion now or later, since I do not know whether the Tribunal have a translation of my motion in their hands.
THE PRESIDENT: The Tribunal have not seen the application yet, so I think you had better postpone making the argument until the Tribunal has seen the application.
DR. SEIDL: Very well, Mr. President.
DR. SERVATIUS: For the Defendant Sauckel I have suggested a number of witnesses and in my preliminary remarks on the list I have divided them into various groups.
The peculiarity of this evidence, as presented, lies in the fact that in this case a mosaic of smaller facts has to be clarified. In its case against Sauckel the Prosecution confined itself to the production of incriminating material generally, and did not work out the full details about SS assignments carried out under the auspices of the Labor Service and similar matters.
Very few facts have been established at all with regard to Sauckel’s sphere of activity generally. I am compelled, in consequence, to present his staff, his collaborators, and their spheres of activity. At first sight my list of witnesses may appear cumulative, but closer inspection shows that they represent different fields. Some of them are experts on Eastern affairs, others deal with the West or South. There is the question of direction of manpower, supplies, housing, and the authority exercised by individuals. The recruitment of workers in foreign countries comes under another head; and witnesses must be heard on this subject, too.
In Sauckel’s case, the question of manpower is all-important and that of conspiracy is a secondary matter. I believe I can rely to a very great extent on the statements which may be expected from others among the accused and from their witnesses.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Prosecution have endeavored to follow Dr. Servatius in considering the suggested witnesses under various heads.
The first witness, Ambassador Abetz, falls into a class by himself. The defendant’s counsel wishes to call this witness on the question of agreements between him and Laval. The Prosecution submit that that cannot affect the position over, certainly, Occupied France, and suggested that this witness is really irrelevant to the main charges which have been made against the defendant. My French colleagues will, however, if Dr. Servatius desires it, let him know the effect of an interrogation of Ambassador Abetz with regard to this subject. I do not want to comment on it at the moment, because it is obviously a matter which Dr. Servatius should consider before any comment is made on it in court. But, if he will allow me to say so, I think it would be useful if he considered that point before any decision was come to.
Then, the next group are the witnesses 2 to 8. They all come from the Reich Ministry of Labor, and they are called to speak generally as to the defendant’s attitude, the limitations on him as regards recruiting, and his personal dealings with offenders. The Prosecution suggest that it will be reasonable for Dr. Servatius to select the two best out of eight for oral testimony, and two more to give affidavits.
The next three, Numbers 9, 10, and 11, were members of the Defendant Sauckel’s staff, who are sought to be called to give evidence as to his efforts to obtain good conditions. Again, the Prosecution suggest a selection, and put forward one witness and one affidavit.
Number 12, the witness Hoffmann, is called for the purpose of saying that the DAF, the Deutsche Arbeitsfront, looked after the welfare of foreign workers by agreement with the late Dr. Ley. The Prosecution submit that that witness would be cumulative, and object to him, as that subject is already covered.
Then there are a series of witnesses, Numbers 13 to 18, who deal with the relations and liaison between the Defendant Sauckel and the DAF. These are substantially still on the same point, and the Prosecution suggest that one witness and one affidavit out of that group would be sufficient.
The next witness, Number 19, Karl Goetz, bank director, deals with the question of wages, and also of the transmission of money to their homes by foreign workers. The Prosecution suggest that that is the sort of material which might conveniently be dealt with by an affidavit or an interrogatory, according to Dr. Servatius’ wishes.
Number 20, Beckurtz, deals with the special conditions of foreign workers at the Gustloff works. That subject has been thoroughly covered in general by previous witnesses, and the Prosecution suggest that this particular witness is cumulative.
With regard to Franz Seldte, from the Reich Ministry for Labor, he deals with the division of authority between Sauckel and Ley and the contention that Sauckel had nothing to do with labor from concentration camps. Again, the Prosecution suggest that an affidavit would show how far the witness Seldte is speaking merely of routine matters, such as orders and the like, and how far he is dealing with individual or personal matters. If he does in fact deal with individual and personal matters and interviews, then I suggest that Dr. Servatius could resume his application on that point.
The witness Darré, who was the former Reich Minister for Food and Agriculture, is sought in order to speak as to the defendant’s efforts to get higher food rations for foreign workers, especially in Eastern areas. The Prosecution suggest that this witness also is cumulative, and it will indicate a number of other witnesses and documents which deal with this point.
As to Number 23, General Reinecke, there is no objection.
Number 24, Colonel Frantz, is sought to say that French prisoners of war were exchanged against voluntary workers. The Prosecution object on the ground of irrelevance.
As to Number 25, there is no objection to Dr. Lammers, who is being called by, I think, every defendant, or practically every defendant.
The next, 26, the witness Peuckert, again deals with the administrative position and executive apparatus of Sauckel, which has already been treated by witnesses at considerable length, and the Prosecution object to this as cumulative.
Number 27, Governor Fischer, Chief of Labor in the Government General, is called to say that Sauckel had made dealings with the SS in regard to resettlement. Again, if he is speaking as to rules and orders that were laid down, we suggest an affidavit.
As I understand it, the next witness, Dr. Wilhelm Jäger, is asked for cross-examination on his affidavit. That is Exhibit Number USA-202 (Document Number D-288), and the references in the transcript are 1322 to 1327 (Volume III, Pages 441-446) and 3057 (Volume V, Page 509). No request was made at this time, and I leave it to Dr. Servatius to explain his position before dealing with this point.
The next two, Dr. Voss and Dr. Scharmann, deal with the public health aspect of foreign workers. They deal with different districts. The Prosecution submit that that question could be dealt with by one affidavit.
As to the next three witnesses, 31, 32, and 33, I think the position is that Dr. Servatius wants one of the three to dispute certain evidence given by M. Dubost on 28 January that the defendant authorized the evacuation of Buchenwald. I have looked, at Pages 3466 to 3492 of the transcript (Volume VI, Pages 242-263), but I cannot find the evidence which Dr. Servatius has in mind, and perhaps he would be good enough to indicate it to the Tribunal.
With regard to 34, Skorzeny, who is called to prove that the defendant, as Gauleiter, had nothing to do with concentration camps, we make no objection.
With regard to Schwarz, to prove that the chart of the Party produced before the Tribunal was incorrect in one respect, we suggested that that be allowed.
With regard to Frau Sauckel, who is desired in order that she may speak as to the defendant’s charitable disposition, irrespective of the Party, the Prosecution suggest that that is irrelevant to the issues before the Tribunal.
I think it is impossible in this case, My Lord, to leave the witnesses without asking the Tribunal to take a glance at the documents, because the two are interrelated.
There is an application for 97 sets of documents and in general they set out what we should call in England all the relevant statutory rules and orders, that is, the subsidiary legislation made with regard to the activities of this defendant. Frankly, I must say to the Tribunal that I have not had the opportunity of reading the original orders. I have read only the summary which Dr. Servatius has been good enough to provide in his application. But, quite clearly, these documents cover again in the greatest detail the various problems with which the respective sets of witnesses to be called deal, and, in the submission of the Prosecution, they provide a good reason and a fair ground for some considerable limitation of the oral witnesses.
There are certain of the documents to which my colleagues and myself take considerable objection, and I might just state two or three of these.
Number 45 deals with the Reich law for sanitary meat inspection, and is presented to prove especially that the German civilian population also received meat graded as inferior, which therefore could not be considered inedible meat. If one has not the comparison of the caloric and other properties of the meat, it is going to be extremely difficult to get any benefit from the evidence, if one is going into that. It is unreasonably detailed for the inquiries before the Tribunal.
If the Tribunal would then turn to Numbers 80 and 81; Dr. Servatius wishes to prove certain Soviet orders, apparently for the purpose of showing that the Soviet methods of mobilization were contrary to the Hague convention and are therefore evidence that the Hague Convention had become obsolete. I submit that the two small examples of this evidence indicate that there would have to be extensive examination of the facts surrounding them and they could not be the basis of a sound argument that a convention had been abrogated. It is possible that in rare cases international agreements may be abrogated by conquest. But evidence of that kind would, in my respectful submission, not be the basis of such an argument.
Then come Numbers 90 and 91, which are files of affidavits. There again it is very difficult, without serious and prolonged consideration of the circumstances under which each affidavit was made, to assess the values of bundles of affidavits of that kind.
Number 92 is a film of foreign workers, and I suggest that it would be reasonable if the representatives of the Prosecution were shown that film first, before it is shown in court—I think that was the course that was taken with regard to the concentration camp film—because, of course, without going into arguments at the moment, the question of propaganda is a serious one which the Prosecution are bound to consider. I have expressly refrained from further comment, but I think the Tribunal will see the point that is in my mind, and will, I hope, consider that it is reasonable that we should see the film before we are asked to comment on it further.
I have taken only certain examples in the documents because obviously they will have to be considered in detail when we see the text, and the Prosecution have to reserve their rights as to objection. But I make the general point—and I hope the Tribunal will think that it is a fair point, and I hope Dr. Servatius will not think that I am decrying his work; I am emphasizing the industry and care which he has shown in doing it—that with this immense body of documentation the witnesses in this case will want careful pruning. That, as I have said, indicates our general view.
THE PRESIDENT: Before you deal with what Sir David said, Dr. Servatius, I ought to say, for the information of other defendants’ counsel and other persons concerned, that the Tribunal proposes to adjourn today at 4 o’clock instead of 5 o’clock.
Sir David, I wanted to ask you: Throughout the discussion I think you referred to affidavits. Did you mean to particularize an affidavit as opposed to an interrogatory?
SIR DAVID MAXWELL-FYFE: No, My Lord. I did not. I am sorry. I really have not made that distinction. It is written evidence that I wish to refer to, either by affidavit or interrogatory, whichever Dr. Servatius wishes to have.
THE PRESIDENT: And one other question: In view of what you have said about the documents, would it not be a good thing for the Prosecution to have a little more time to consider the documents? And then perhaps they could give more help as to their view about the documents.
SIR DAVID MAXWELL-FYFE: That would be so, My Lord, but Your Lordship will appreciate that we have been under considerable pressure in the last few weeks and it is impossible to cover them all, but we should be glad of a little time to go into the documents.
THE PRESIDENT: Perhaps you could see Dr. Servatius about them after the adjournment some time.
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: And in the course of a day or two, let us know.
SIR DAVID MAXWELL-FYFE: Yes, we could do that.
THE PRESIDENT; Now, Dr. Servatius, will you deal with the witnesses?
DR. SERVATIUS: Witness Number 1, Ambassador Abetz. I name this witness to show Sauckel’s subjective conception of the admissibility of the Arbeitseinsatz from the point of view of international law. On the basis of the treaties, and in the absence of any protest from the governments of other countries—notably France—he was entitled to assume that it was legitimate. I am, however, willing to admit the witness Stothfang, who as Sauckel’s deputy repeatedly negotiated with Laval. If he is admitted, I would renounce the witness Abetz. In other words, I am to forego witness Number 1 if I am permitted witness Number 9.
THE PRESIDENT: Yes, I see. What about witnesses 2 to 8?
DR. SERVATIUS: Witnesses from Sauckel’s staff. It is difficult to dispense with any witness; and one witness is absolutely necessary for the graphic illustration of the way in which orders were carried out in practice. The Tribunal would find it very difficult to read through this enormous number of laws, and it is easier to hear witnesses on the essential points than to undertake the amount of reading involved. The witness Timm is the most important, as for all practical purposes he was in charge of the so-called Europa Amt which was responsible for the actual distribution of the labor forces.
THE PRESIDENT: One moment, Dr. Servatius. First of all, you will, no doubt, be calling the Defendant Sauckel himself?
DR. SERVATIUS: Yes, I should like to call him last, for he is a defendant and his statements are less valuable than that of a witness.
THE PRESIDENT: These witnesses will be corroborating his evidence about his administration. Under those circumstances, would not two of them, as Sir David suggested, out of eight, and two more affidavits be sufficient?
DR. SERVATIUS: From a legal point of view, the witness Beisiegel can be dispensed with, but the other witnesses are necessary because they have actual knowledge of the use of manpower abroad. So far, I have only one witness who can really speak on the use of manpower in the East. This witness should be able to describe the actual procedure followed; for laws have little meaning in themselves, if we do not know how they were applied. For the East, we have the witness Letsch—a highly important witness—and for the West, the witness Hildebrandt, who can testify how conditions gradually changed in France in consequence of the resistance movement.
The witness Kaestner could not be found, and I will dispense with him.
Witness Number 7, Dr. Geissler, is of the greatest importance because he can testify regarding inspections. The main point is at what period these workers were employed and what provision was made by Sauckel for their well-being in Germany. To ensure that Sauckel’s regulations—which, I maintain, were models of their kind—were actually put into practice, a series of inspectorates existed. Witness Number 7, Geissler, was in charge of the Reich inspectorate, a branch established by Sauckel. I consider him indispensable.
THE PRESIDENT: Why are not Number 3 and Number 8 cumulative?
DR. SERVATIUS: I named Number 8 in order to give special emphasis to the wage question. So far the Prosecution have not treated individual points in any very great detail. Otherwise I should find myself in difficulties owing to lack of evidence when the emphasis is transferred later to the question of wages. Only witness Number 8 can testify to this question. Witness Number 3 can testify regarding the regulations generally and in particular that Sauckel constantly improved conditions to the last, so that the situation of all foreign workers was considerably improved by legislation and continued to improve. This can be seen from all the regulations, which I have carefully collected for the purpose.
Witness Number 9, Dr. Stothfang, was Sauckel’s consultant, his personal adviser, and conducted many negotiations, particularly with France. For this reason I have named him as a substitute for witness Number 1, Abetz. In particular he conducted negotiations over the restrictions of the so-called Weisungsrecht, the restriction, that is, Sauckel’s right to recruit workers. From the very start of Sauckel’s activities, it was clear that no official administering a zone would tolerate interference of this kind on Sauckel’s part, that from a practical point of view it was impossible to tolerate it and his powers were promptly curtailed through parleys. Witness Stothfang will testify on that subject.
THE PRESIDENT: Why are 9 and 10 not cumulative?
DR. SERVATIUS: I will forego Number 10. I wish to say something on a rather different subject.
THE PRESIDENT: Yes.
DR. SERVATIUS: Witness Number 11 knows the conditions. He was the press expert, and if I must forego any witness, I would dispense with him rather than anyone else. He really does know, however, exactly what conditions were like. He wrote the book Europa Works in Germany and made the film, and can say that these pictures were not faked but are genuine photographs. For this reason he is important, as his testimony is supplementary to the book and the film.
The next witnesses belong to the Labor Front. The Labor Front was responsible for the welfare of all foreign workers, as well as for that of German workers. The situation never changed in that respect; and the witnesses can testify now to the way in which the regulations were carried out in different cases, with regard to the construction of the camps, supplies, clothing, and everything else that took place.
Witness Number 13 would be the most important witness, but he has not been found. For this reason I attach special importance to witness Number 14, who worked with him. The witness Hoffmann was practically in charge and knows what conditions were in the camps.
Those were the witnesses who worked with Sauckel in liaison with the Labor Front. The other witnesses will testify as to the practical work done by the workers themselves.
The situation is this: Dr. Ley no longer appears here, so that the whole of Ley’s field now becomes part of the case against Sauckel and forms a further charge against Sauckel unless the question is clarified. There are a good many charges and they must be clarified.
THE PRESIDENT: What is the difference between 15 and 16?
DR. SERVATIUS: 15 is a stenographer’s error; 15 is identical with witness 12. Witness 16, Mende, of the head office is particularly important because he had to look after the organizations within the Labor Front.
THE PRESIDENT: You mean 15 comes out, does it?
DR. SERVATIUS: Yes, 15 comes out.
THE PRESIDENT: Yes.
DR. SERVATIUS: Witness 17, Dr. Hupfauer, can testify as to the origin of the code of regulations in general and about the direction in which Sauckel worked.
THE PRESIDENT: Why is not he cumulative with Number 14, whom you wanted to have instead of 13? The charge of inhumanity applies to both of them.
DR. SERVATIUS: Because witness 14 deals with the practical side, and witness 17 deals with the legislative side. Witness 18 was responsible for the practical application within the Labor Front. One must keep these various fields distinct from each other. Sauckel had a small office, which was incorporated into the Ministry of Labor. He issued regulations with the aim of steadily improving matters. I offer evidence that they were of social value and will prove on investigation to be irreproachable.
We then have to consider the other side of the question—the practical application, for which the Labor Front was responsible; and the recruitment. I have special witnesses to deal with these heads as well.
The next witnesses are members of Sauckel’s specialist staff. Witness 19, Bank Director Goetz, can testify that billions of marks were transferred to foreign countries for workers’ wages.
Witness 20, Beckurtz, was manager of the Gustloff works and one of Sauckel’s closest collaborators. He will confirm that the treatment and housing of workers in this very Gustloff factory was exemplary.
Witness 21 will testify as to the degree of authority exercised by Ley and Sauckel respectively. It is of great importance to know whether Sauckel himself was responsible or whether some other office was in charge of the practical side.
THE PRESIDENT: Why cannot this be dealt with by an affidavit or interrogatories?
DR. SERVATIUS: I shall be satisfied here with an affidavit. I have not yet spoken to the witness personally and for that reason I had to list him as a witness.
Witness 22, Reich Minister for Food and Agriculture. He will testify that from the moment Sauckel took up his appointment, he made every effort to improve conditions for foreign workers and that he continued to pay special attention to this point. That is of particular importance in view of the accusation that the foreign workers had been starved. Through it I shall be able to adduce evidence that the foreign workers were in part—I say in part—better off than German workers.
Witness 23. . .
THE PRESIDENT: He has already been granted to another defendant.
DR. SERVATIUS: Oh, I see. Then I can forego him.
The next witness has not yet been found. He will testify regarding the exchange of prisoners of war for French workers. I understand that Reich Minister Lammers has already been approved for other defendants.
Witnesses 26 and 27 are important because they can furnish information on the way in which workers were recruited in the Eastern territories. They can testify to the extent of Sauckel’s powers, whether they were executive or otherwise, to the authority given to the police, and to what extent the organization was distinct from the SS. Witness 26 has not been found. Consequently, I shall have to confine myself to witness Number 27, Governor Fischer, who has been found and approved.
THE PRESIDENT: What about an affidavit for 27?
DR. SERVATIUS: I do not consider that I can forego calling him as a witness. It is of the utmost importance to have a witness who can say what conditions in the East actually were.
Witness 28, Dr. Jäger. We have a detailed affidavit, but it is extremely inaccurate. It has been submitted as Document Number D-288, Exhibit Number USA-202. I have also received the German translation.
THE PRESIDENT: Dr. Servatius, was it not the proper course to cross-examine Dr. Jäger when his affidavit was read?
DR. SERVATIUS: I assumed that it was accurate, as at that time I was not acquainted with conditions in the district in question. I have since made inquiries and can bring evidence to show that his statements were not only very much exaggerated, but in many cases actually false. The truth emerged by degrees on studying in detail some half dozen sworn statements which I obtained. Krupp had 60 camps. The witness deals with three or four of them at a time when the aerial war was at its peak—a fact which he does not mention. I do not anticipate much difficulty in proving his statements incorrect. I should like to reserve the right to submit further affidavits with which the witness can be confronted if he appears here in person, I also made an application, which has not yet been granted, for leave to make use of a number of medical reports made in these very factories, which in themselves prove that Dr. Jäger’s testimony is inaccurate. My chief difficulty was to obtain possession of this evidence, hence the delay. Otherwise I should have submitted it sooner. I attach great importance to Dr. Jäger as a witness.
The next witnesses, Dr. Voss and Dr. Scharmann, will testify on the same subject, but each in connection with a different area. They have attended the camps as doctors and can testify that the conditions there were irreproachable and good. I could name many such doctors if I had the time and opportunity to look them up. I know both of these and they will confirm what conditions were really like.
THE PRESIDENT: If that is so, why can they not both give an affidavit about it?
DR. SERVATIUS: They are in a camp. It is difficult for me to contact them; it would be easier to bring the witnesses here. Perhaps Dr. Voss can appear here so that one of the witnesses can be heard.
The next three witnesses are named for this purpose.
SIR DAVID MAXWELL-FYFE: My Lord, since I gave the explanation, I have had a chance of comparing the English text with the French text, and it would appear that an error has crept into the English text, which says:
“He seemed to be impressed and he gave an explanation of the gravity of the communication Shiedlauski had given. Shiedlauski had given an order that no prisoner should remain in Buchenwald.”
The French text is, if I may translate it:
“He seemed very embarrassed and an explanation was given. The Governor of Thuringia, Sauckel, had given the order that none of the detained persons should remain at Buchenwald.”
So that apparently when I told the Tribunal that we could not find this reference, I was dealing with the English text, and it appears that there was such a reference in the French text. Since M. Dubost was calling the witness, the probability is that the French text is right, and as there is evidence that Sauckel had given this order, I think it is only fair that I should say that one witness should be permitted to deal with this point in the view of the Prosecution; it is, of course, a matter for the Tribunal.
DR. SERVATIUS: I agree with the Prosecutor and need only one of the three witnesses. Should none of the witnesses be found, I have in the document book an affidavit of one of Sauckel’s sons who was also present at the conference.
Witness 34, Skorzeny, will testify to the general connection between the Gauleitung and the concentration camps; in other words, to what extent the Gauleitung, by virtue of its official position, had knowledge of what went on in the concentration camps.
Witness 35, Reich Treasurer of the NSDAP, Schwarz. This question has been settled. I have received my interrogatory with the answers.
Witness 36, Frau Sauckel, was previously approved by the Tribunal. I can see that certain objections might be raised but the essential point is this: Among other things, the witness repeatedly heard that the Defendant Sauckel was criticized for treating foreign workers too well and for manifesting an international rather than a nationalistic attitude. That is one point. The other point is that which concerns the conspiracy, namely, that Sauckel kept aloof and had very little intercourse with other members of the Party. He worked consequently on his own and knew very little about major developments in policy.
That concludes my remarks on the list of witnesses.
THE PRESIDENT: Dr. Servatius, you probably realize that you have asked for a very much larger number of witnesses than other counsel and I have, therefore, to ask you whom you regard as the most important witnesses. It may be that it will be necessary to limit the number, as you are aware that we are directed to hold an expeditious trial, and so would you kindly give me the list of those witnesses whom you regard as the most essential.
DR. SERVATIUS: If I have time till tomorrow to think it over, I shall try to reduce the number. It is difficult because the field is so large. Also I did not receive a trial brief for Sauckel defining charges in detail, so that I must be prepared for all eventualities. I must define my position with regard to many points: food, wages, leave, workers, transport, illness and there are many aspects to which I must refer.
THE PRESIDENT: You will not forget that many of the defendants are concerned in various aspects and they have neither asked for nor been allowed this very large number of witnesses.
DR. SERVATIUS: May I turn to the documents now?
THE PRESIDENT: Well, I rather thought that perhaps Sir David was going to get in touch with you after the adjournment and perhaps you could then deal with the documents more successfully.
SIR DAVID MAXWELL-FYFE: I think that would be time usefully spent, My Lord, if the Tribunal would allow it.
THE PRESIDENT: Yes.
I call on Dr. Exner on behalf of the Defendant Jodl.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Exner and Professor Jahrreiss were good enough to approach the Prosecution on this matter and put forward certain considerations, including the names of the witnesses to whom they attached the greatest importance, and over a considerable part of the field there is no difference between us. On certain matters there is a difference of principle, which I shall point out to the Tribunal in a moment, but the effect is, if I might run through the application, that the Prosecution will not offer any objections to General Winter, who speaks as to the organization of the OKW and the respective duties of the Defendants Keitel and Jodl. They will not offer objections to Major Professor Schramm, although the need for his evidence is perhaps not so obvious. On the other hand, with regard to Number 3, the evidence of Major Kipp, that the fettering or chaining of prisoners took place at Dieppe and as to the cause of the shooting-of-Commandos order, the Prosecution submit that these matters are irrelevant. With regard to Major Büchs, Dr. Exner tells me that he will be satisfied with interrogatories. The Prosecution do not object.
With regard to Number 5, General Von Buttlar, Professor Exner suggests that he should be a witness, and the Prosecution do not object.
With regard to Number 6, the Prosecution are content that there should be interrogatories.
With regard to Vice Admiral Bürckner, the Prosecution are prepared to take no objection.
Then with regard to Number 8, General Buhle, a questionnaire has been sent off.
With regard to Number 9, it is suggested that there should be interrogatories.
Number 10, interrogatories.
With reference to Numbers 11 to 21, the Tribunal has allowed an interrogation in each case, and in many cases a questionnaire has been sent off, and therefore the Prosecution could not object at this stage when action has been taken on the Tribunal’s suggestion. That would mean that the Defendant Jodl would have four oral witnesses, apart from the interrogatories which have already been largely approved by the Tribunal. The objection of the Prosecution to Number 3 is maintained.
DR. EXNER: I should like, first of all, to mention Number 3, Kipp. The Prosecution have its objections to this witness. We need him to give information as to how the Hitler order of 18 October 1942, that is, the Hitler order regarding Commandos, originated. This order has been made the basis of a highly incriminating charge against Jodl and it is of great importance to hear how this order came to be given. It concerns the killing of Commandos dropped by planes or landed from boats. As I understand it, the objection to this witness and this subject generally is that it appears to concern for the most part the events of Dieppe, in consequence of which this order was admittedly issued. But we are not concerned with an exact portrayal of what actually happened at Dieppe. The witness Kipp is, in any case, unable to do so, since he was in the OKW and was not a witness of those events. We are concerned with something else, namely, the fact that certain reports were presented to the OKW which caused this order to be made. We are furthermore concerned with the following facts to which Kipp is in a position to testify.
When these reports about the events at Dieppe arrived, the Führer was enraged and ordered strict measures to be taken against these Commandos. Jodl refused to issue or draft the order as demanded by the Führer. When pressed, he said he did not know what reason he could give for that order.
Jodl then passed the matter to Major Kipp for investigation, as it was peculiarly complicated from a legal point of view and Kipp, being a professor of law, should know something about legal matters.
In addition, a kind of poll was held in Jodl’s office in the Wehrmacht Operations Staff and the opinions of other offices on the matter in question were collected. Varying opinions were received from the Ausland Abwehr, the legal department, et cetera. As in the meantime 10 days had passed, Hitler lost patience, sat down and drew up the entire order himself, as well as a further decree, establishing the reasons for the order. Jodl, therefore, was not the author of this order. All that he did was to express his doubts regarding it. The story of the origin of the order of 28 October 1942, which, as I have said, has been made the basis of a grave accusation against Jodl, is of the utmost importance. Kipp will testify to it. Further, it has already been said that there is no objection to witness Number 5, Buttlar.
As to Number 4, I am satisfied with an affidavit or an interrogatory, but I must reserve the right to call him as a witness, should the interrogatory be inadequate or not clear. I hope, however, that this can be avoided.
Regarding witness Number 7, Vice Admiral Gottlieb Bürckner, I should like to point out that he is the same Admiral Bürckner who was the subject of discussion this morning in connection with the witnesses for the Defendant Raeder. Perhaps that will clear up the difficulty about Raeder.
Regarding Number 8, the interrogatory has already been sent out. We have, however, distinctly, reserved the right to resort to oral testimony should the interrogatory again prove unsatisfactory. Otherwise, I have nothing further to say on the subject and the Prosecution has no grounds for protest.
I have just received a note saying I was relying on the appearance of Büchs as a witness and therefore why did I not ask for him. This is on behalf of Göring, is it not? I shall have to leave the decision to the Tribunal. I had in fact intended to call Büchs as a witness and I only agreed to forego his personal appearance in the course of the discussion.
THE PRESIDENT: Which witness were you talking about?
DR. EXNER: Witness Number 4.
THE PRESIDENT: Do you say you are asking for him as an oral witness?
DR. EXNER: Göring has also asked for him as a witness.
THE PRESIDENT: Has he been allowed to the Defendant Göring?
DR. EXNER: He had counted on my calling him as a witness, on his being allowed and on being able to question him. He is here in Nuremberg. May I now turn to the documents?
THE PRESIDENT: Yes.
DR. EXNER: Regarding Points 1 and 4, the Prosecution has no objections. I take this to mean that I put into my document book an extract of the part I read. I submit the entire document to the Tribunal without a translation of anything except the part which I am going to read; and which deals with an important point which must be clarified. If I am dealing with a large document and I need to quote only one paragraph, it is sufficient if I submit the original document to the Tribunal in its entirety and include in my document book only the particular paragraph in question and its translation.
THE PRESIDENT: That is right.
DR. EXNER: Regarding Points 5 and 6, the Prosecution objects and I withdraw these two documents.
Point 7 is a curious one. That is Document Number 532-PS, submitted by the Prosecution and to which I made objection at the time. The document was removed from the record, and now I myself apply for this document to be submitted again. This is for the following reason: The document is an order that was submitted to Jodl in draft form. Jodl did not approve it, crossed it out, and sent it back without signing it. This draft was submitted by the Prosecution, and I objected to its being presented as if it were actually an order signed by Jodl. I want to submit it now in order to prove that Jodl, by making it impossible for this order to be carried out, deprived an illegal order of its effectiveness.
Regarding Points 8 to 15, the Prosecution also has no objection.
SIR DAVID MAXWELL-FYFE: Points 16 and 17 are the subjects of objection from the Prosecution. Point 16 relates to the English “Close Combat Regulations” of the year 1942, and 17 is the English order for the Operation Dieppe of the same year. With regard to the “Close Combat Regulations,” the only relevance they could seem to have would be in relation to an objection to this form of training, and in the submission of the Prosecution it would be irrelevant on the question of the Commando order.
With regard to the question of shackling, I think the simplest way of dealing with it is to point out that the Prosecution, as my friend Mr. Dodd pointed out, have not introduced that matter into their case, and therefore it would appear that, the English order in question was not relevant. Apart from the two general objections, neither of these matters seems connected with points in the case.
I might just indicate Number 20, which is another objection that is on the same basis as the old document, which I think the Tribunal has had before—the implication of the German Foreign Office on breaches of international law, and it is sought for, as the Tribunal will see, as evidence of the reports that were made to the High Command of the Wehrmacht, and that gave occasion to take reprisal measures.
Then a similar ground of objection applies to Number 21, a history of the White Russian partisan war, which is sought for as evidence that the danger of bandit warfare gave cause for undertaking sweeping countermeasures.
These objections can be all grouped together. They fall under the general objection to tu quoque evidence which the Prosecution has maintained throughout the Trial.
DR. EXNER: May I say something about this? As far as 16 and 17 are concerned, we just want to see these documents. We want to see them first in order to judge whether or not we want to submit them in evidence. I have stated so at the foot of the page.
As to irrelevance, we do not say that we regard these orders as illegal. But if for instance, in the “Close Combat Regulations,” English soldiers are ordered to perform actions for which our soldiers are censured, it would constitute a discrepancy of some importance. For in that case it would be obvious that the British Government regarded such methods of warfare as legitimate. If, however, such methods are legitimate for them, they must also be legitimate in our case, since it is impossible to have two standards in these matters. In order to establish this, we wanted to see these “Close Combat Regulations.” That is Number 18.
Number 19 is a similar case, but I can more readily understand that that was refused, as it may be a secret order. Number 20, the White Book. . .
THE PRESIDENT: Sir David did not deal with 19, did he? He only dealt with 16, 17, 20, and 21.
DR. EXNER: Yes. 18 and 19 have not been objected to.
THE PRESIDENT: As I understood it, his objection to 16 and 17 was that there was no complaint against the German forces, either with the reference to close combat or with reference to shackling, in the Indictment.
DR. EXNER: If these “Close Combat Regulations” should happen to include illustrations—there are actually pictures in there—of the shackling of prisoners and orders for doing so, one would be obliged to say that the British Government does not consider this kind of treatment illegal and that if it happens on our side we cannot be censured for it. It is difficult for me to estimate their importance to us, because I have not had these “Close Combat Regulations” in my own hands. If I had them, I could make my application. I should like to know whether I have to include them in my evidence or whether there is no need.
No objection has been raised to 18 and 19. As to 20, these are the White Books already approved for Göring. Consequently, I need not ask for them myself.
Regarding Point 21, I am convinced that this cannot be settled with a charge of tu quoque. It is a Russian book, describing partisan warfare. The author of this book is a Russian who, himself, participated in partisan warfare for several years as chief of staff and he writes from personal experience.
We do not assert that the Russians did the same as we did, which would be a tu quoque argument; I should like to have this book for another reason. To understand and appreciate our regulations regarding partisans, one must know these partisans. One must have knowledge and experience of their methods, and be able to appreciate the danger which they represented. This Russian book describes all that, and is therefore important. The author himself, as stated, played an active part in the warfare carried on against the partisans.
In the Indictment it is stated, “The war against the partisans was simply an excuse for the annihilation of Jews, Slavs, and so on.” This book shows that the war against the partisans was a real war and not an excuse on our part.
If the book is unobtainable, I ask permission to read the short account of the contents recently published in The Stars and Stripes. To conclude, it should be emphasized that the book was written by a Soviet Russian and for this reason cannot be assumed to have an anti-Russian bias.
Therewith I have concluded my presentation.
THE PRESIDENT: Sir David, the Tribunal would like to know what your argument is with reference to 21.
SIR DAVID MAXWELL-FYFE: I was opposing it for the reason that was given. The book is asked for as evidence that the danger of bandit warfare gave rise to undertaking sweeping countermeasures.
Now, broadly, the case for the Prosecution is that the countermeasures against partisans constituted atrocities, and evidence of that kind has been given. It is, in my submission, no defense to the committing of atrocities against partisans, of the kind given in evidence, that their warfare was of a great extent or very fiercely or bravely waged. This is just the tu quoque argument in its nakedness—because partisans fight you, therefore you can burn their villages, shoot their women, and kill their children. That is the argument which we say is irrelevant and is inadmissible.
My Lord, I should like to say that I have no objection, if any of these documents can be obtained, to Dr. Exner’s looking at the documents; on that point to which the Prosecution attached importance, I thought it right—and I know my colleagues desired it—that I should make our position clear.
THE PRESIDENT: That concludes your address, Dr. Exner, does it?
DR. EXNER: May I add something concerning the last point. I am, of course, perfectly aware that those atrocities, as described here, cannot be justified by the activities of the partisans, but the more violent the actions of the partisans became, the harsher—of necessity—were the German military countermeasures, so that there is, after all, a connection between these matters.
THE PRESIDENT: The Tribunal will consider your argument.
The Tribunal will now adjourn.
[The Tribunal adjourned until 7 March 1946 at 1000 hours.]