Afternoon Session
THE PRESIDENT: I have an announcement to make. With reference to the announcement that I made this morning, the Tribunal may hear the applications for witnesses and documents of the Defendants Kaltenbrunner, Rosenberg, Frank, and Frick before Saturday. That will depend upon the progress of the case. I have already stated that those applications must be deposited with the General Secretary by 5 o’clock p. m. on Wednesday.
Secondly, all the defendants, other than the first eight named in the Indictment, must make application naming their witnesses and the relevancy of their evidence, and the documents and the relevancy of the documents, by Friday next at 5 p. m.
Thirdly, the Tribunal will sit in closed session on Monday next at 4 p. m.
Perhaps I also ought to say that this does not affect—it does not refer directly to defendants’ counsel who represent the criminal organizations. Those counsel will be heard after the close of the Prosecution’s case, as has already been announced.
Next would be Hess.
SIR DAVID MAXWELL-FYFE: I only want to say that if the Tribunal did desire to hear anything on the question of reprisals, which was raised by Dr. Exner, Mr. Dodd is prepared, if the Tribunal would care to hear further matter on it.
THE PRESIDENT: Yes. The Tribunal would like to hear that now.
MR. THOMAS J. DODD (Executive Trial Counsel for the United States): May it please the Tribunal, I wish to say at the very outset, that I have made a rather hurried preparation during the noon recess of the few notes on this subject based on some work which we had done a little earlier. I am not altogether prepared to go into the matter to any great extent at this time, but I did want to call to the attention of the Tribunal a few of these notes that we have prepared, and to say that, in view of Dr. Exner’s contention that some of the documents which are offered by the Defense, or which they intend or hope to offer, are admissible on the theory or under the doctrine of reprisal.
We would like to say to the Tribunal that the Convention of 1929 concerning the treatment of prisoners of war expressly prohibits altogether the use of reprisals against prisoners of war. Parenthetically, I might say that the United States prohibited in its Army instructions reprisals against prisoners of war as early as 1862 or 1863.
Secondly, I should like to point out that the Hague regulations do not mention at all, insofar as we are able to ascertain, the use of so-called “reprisal action” against civilians.
It appears that the Brussels conference of 1874, which accepted the unratified Brussels Declaration, so-called in international law—that conference rejected or struck out several sections which were proposed by the Russians at that time, having to do with the use of reprisal action against civilians. I cite that because it is interesting and indicates that the powers were certainly thinking about the matter of reprisals against civilians as early as then.
Thirdly, I should like to point out to the Tribunal that it is commonly said by the writers on this subject that before reprisal action may be taken a notice of some character is usually required, and this reprisal action is directed against some specific instance which the first power believes to be offensive and which it believes may call for or justify the use of reprisal action. So that some notice of some kind seems to be required by the power which feels it has been offended to the offending power.
I might say that in the Prosecution’s case-in-chief we specifically avoided any reference to the well-known incident during this war of the shackling of prisoners of war, because there, there was some color of notice, and the matter was resolved by the powers concerned.
These are the points that we have had in mind during this brief recess this noontime, and if the Tribunal would like to have us do it, we shall be glad to prepare ourselves further, and to be heard further on this subject at a later date.
THE PRESIDENT: Thank you.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the position with regard to the Defendant Hess is set out in Dr. Seidl’s communication to the Tribunal; and I have one or two comments to make on that on behalf of the Prosecution.
THE PRESIDENT: Will you comment upon that, Dr. Seidl? Would it be convenient to follow the same course as we followed with Dr. Stahmer, and perhaps Sir David may say if he has any objection, first of all to the witnesses, one by one, that you are asking for?
DR. ALFRED SEIDL: I should like, however, to request the Court to permit me a short preparatory remark and to make a motion.
THE PRESIDENT: Yes.
DR. SEIDL: My Lords, from what happened in this morning’s session I gained the conviction that now the Trial has entered into a decisive phase, at any rate as far as concerns the Defense. I consequently feel myself obliged to make the following application.
I should like to ask that the Court, at this point in the Trial, should, when examining the relevancy of the evidence submitted by the Defense, limit itself to the witnesses, and postpone examination of the relevancy of documents until a later time. To establish reason for this I permit myself to point out the following:
The Court issued a ruling regarding the submission of evidence by the Defense for the first time on 17 December 1945. In this ruling only witnesses and not documents were discussed. A second decision is that of 18 February in which the following introductory remark is made, “In order to avoid delay in the securing of witnesses and documents, Defense Counsel shall . . .” and then follow the remaining contents of the ruling.
I am of the opinion, My Lords, that the question as to whether a document has relevancy or not can only be decided when I have this document in my own hands; in other words, when I am familiar with the precise contents of that document. It is impossible in a summary proceeding such as is now being attempted, in which the admissibility of whole books is supposed to be decided on, to pass appropriate judgment as to whether a particular passage in a document has relevancy or not. This question can be decided clearly and definitely only if the Prosecution and the Court as well have the document in their hands in the form in which the Defense wishes to submit it. I am convinced . . .
THE PRESIDENT: But, Dr. Seidl, I have stated twice this morning that the question of the final admissibility, whether of witnesses as evidence, or documentary evidence, can only be finally decided when the document is actually put in or when the witness is actually asked a question. What we are now considering is whether the document has any possibility of relevance and must, therefore, be searched for, if necessary, or sent for.
DR. SEIDL: Yes. If I understand you correctly, Mr. President, it is not necessary . . .
THE PRESIDENT: Dr. Seidl, the Tribunal thinks that you had better deal with your witnesses and documents now, and we do not desire to hear any further general arguments on the subject. We desire to hear you upon the documents and the witnesses which you wish to call and produce.
DR. SEIDL: It is, then, a question of the documents I already have in my possession and not of the documents which I wish to obtain.
THE PRESIDENT: Yes, the documents which you are about to mention.
DR. SEIDL: It is a question of all the documents, and not simply the documents that must first be procured.
THE PRESIDENT: Well, we have before us your application for certain witnesses and certain documents, and we wish to hear you upon that application.
DR. SEIDL: Very well, but I must draw up a list by next Wednesday for the Defendant Frank, and I should like to know whether those documents should be brought up which I already have in my hands.
THE PRESIDENT: Well, first of all you had better deal with your witnesses in the same way that Dr. Stahmer did.
DR. SEIDL: The first witness that I intend to hear is Fräulein Ingeborg Berg, a former secretary to the Defendant Rudolf Hess.
SIR DAVID MAXWELL-FYFE: My Lord, I have not seen this list until a moment ago.
THE PRESIDENT: The witness he wants to call is Ingeborg Berg; is that right?
SIR DAVID MAXWELL-FYFE: If Dr. Seidl tells me that this lady was a private secretary to Hess, it seems to me, prime facie, reasonable that there was a chance of discussing the matter. As a general rule it seems to me reasonable that a private secretary should be called who can corroborate the matters with which the defendant was dealing. I do not think any of my colleagues will disagree with that point.
DR. SEIDL: My second witness is the previous Gauleiter and head of the Auslands-Organisation of the NSDAP, Ernst Bohle, who is imprisoned here on remand.
THE PRESIDENT: Dr. Seidl, you have not really adopted the procedure which the Tribunal asked you to adopt. You have not specified the relevance of the evidence which you wish to produce. You have referred to some previous application. The Tribunal has not got all these applications before it at the moment, and therefore we wish to know in what respect the evidence of Ingeborg Berg is relevant.
DR. SEIDL: The witness Ingeborg Berg was the secretary of the Defendant Hess at his liaison offices in Berlin. She is to make statements regarding the time Hess began making preparations for his flight to England, and what sort of preparations they were.
She is further to testify as to what Hess’s attitude was toward the Jewish question in a particular case, namely, in connection with the Jewish pogrom of 8 November 1938.
THE PRESIDENT: Is she in Nuremberg?
DR. SEIDL: She is here, in Nuremberg.
THE PRESIDENT: You may deal with the second witness now, if you like.
DR. SEIDL: The second witness is the previous Gauleiter of the Auslands-Organisation of the NSDAP, Ernst Bohle. He is imprisoned on remand in Nuremberg. He is to testify whether the Auslands-Organisation developed any activity which might make it appear to be a Fifth Column.
SIR DAVID MAXWELL-FYFE: On the second witness, that is one of our allegations against the Auslands-Organisation, and therefore it does seem relevant. I make no objection.
DR. SEIDL: Walter Schellenberg is the third witness I mention. Whether I shall be able to uphold his application I can only judge after the Court has given me the opportunity to speak to this witness who is here in Nuremberg. I do not know whether the witness can give pertinent evidence concerning the time in question, prior to 10 May 1941. I should like to avoid occupying the time of the Tribunal with the hearing of a witness whose hearing proves that he cannot offer pertinent evidence. I consequently ask the Tribunal first of all for permission to speak to this witness for the purpose of getting information.
THE PRESIDENT: Do you have anything to say about that, Sir David?
SIR DAVID MAXWELL-FYFE: I understand that this is the witness Schellenberg who was called for the Prosecution.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: I submit that it would be very undesirable to have private conversations with witnesses before cross-examination. If Dr. Seidl wishes to cross-examine the witness Schellenberg further, then he ought to apply to the Court to cross-examine him in open court.
THE PRESIDENT: Well, I think I remember that some of the defendants’ counsel asked to postpone the further cross-examination of Dr. Schellenberg.
SIR DAVID MAXWELL-FYFE: My Lord, my objection is not to the further cross-examination; that is a matter, of course, which is entirely for the Court once a witness is in its hands. But my recollection is that Dr. Merkel and Dr. Kauffmann also wanted to cross-examine the witness further, and therefore I submit that, both generally and on this particular occasion, it would be very undesirable for any counsel who is going to cross-examine to have a private conversation with the witness before he cross-examines. That is the matter to which I object.
THE PRESIDENT: Yes, but if the defendants’ counsel finally decide that they are not going to cross-examine the witness, I suppose then they would be able to examine him in chief if they wanted to do so, to call him.
SIR DAVID MAXWELL-FYFE: Well, I have never heard, My Lord, of that procedure being adopted. If a witness is called by one side, then the other side must, in my respectful submission, do what they can by way of cross-examination. The witness is before the Court and, as the Prosecution have called the witness, then I submit that the Defense should deal with the witness by way of cross-examination. They have the additional rights which cross-examination gives, which is a compensation for the other rights which they would have if he were their own witness.
DR. SEIDL: Perhaps we might find a solution whereby I would renounce the right to cross-examination, and if the witness could actually say something pertinent, I could let him give me an affidavit. I do not believe that the Prosecution would object to that.
THE PRESIDENT: Sir David, as there are no technical rules of evidence applicable to this Trial, would it be objectionable, would you say, if the Defense were permitted to see Schellenberg in the presence of a representative of the Prosecution, if that is satisfactory to them?
SIR DAVID MAXWELL-FYFE: I am sure the Prosecution all desire that only the interest of justice should be furthered, and if the Tribunal consider that that would be a suitable method of dealing with it, the Prosecution would raise no objection.
THE PRESIDENT: Unless you wish to say something further about Schellenberg, the Tribunal will consider your application.
DR. SEIDL: Very well.
THE PRESIDENT: Have you any other witnesses that you wish to refer to?
DR. SEIDL: For the time being, no. However, according to the resolution of 18 February, every Defense Counsel has the right, until the conclusion of the Trial, to ask permission to call further witnesses.
THE PRESIDENT: I think now is the time for you to apply; in accordance with the order of the Tribunal to which you are referring, this is the time at which you are to apply for any witnesses you want. The Tribunal always has the discretion, which it would exercise, if you prefer to make any further applications. If later you want to ask for further witnesses, the Tribunal will always consider your application.
Did you get that?
DR. SEIDL: Yes, Mr. President.
As to the question of whether the Auslands-Organisation, the Volksbund für das Deutschtum im Ausland, and the Bund Deutscher Osten had anything to do with the activities of a Fifth Column, a further witness who would come into question is the brother of the Defendant Rudolf Hess, Alfred Hess, who was formerly a deputy Gauleiter of the Auslands-Organisation, and is at present in Mergentheim in an internment camp.
THE PRESIDENT: Well, we have not got your application in front of us with reference to that. If you want to make any further application you may do so.
DR. SEIDL: I have made the application.
THE PRESIDENT: You say you want to make it now?
DR. SEIDL: If it is possible I should like to make the application now, since the Tribunal has asked me to speak. I am, of course, prepared to submit that application in writing later.
THE PRESIDENT: The Tribunal will hear you now, then, upon this application, and you can put the application in writing afterwards as a matter of record.
DR. SEIDL: Very well.
THE PRESIDENT: What was the name?
DR. SEIDL: Hess, Alfred. His last official position was Deputy Gauleiter of the Auslands-Organisation of the NSDAP. At present he is in the internment camp in Mergentheim.
THE PRESIDENT: Yes? For what purpose? You said because he was going to speak as to Fifth Column activities; was that it?
DR. SEIDL: Regarding the Fifth Column and regarding the question of whether the Auslands-Organisation of the NSDAP and the Volksbund für das Deutschtum im Ausland and the Bund Deutscher Osten have anything to do with a Fifth Column or not.
THE PRESIDENT: Sir David?
SIR DAVID MAXWELL-FYFE: My Lord, I have already conceded that this is a relevant issue, and therefore the only question is cumulation. The Defendant Hess will himself be able to speak on this point, and the witness further if the Tribunal allows it.
The Tribunal might well consider, in my submission, that an affidavit or interrogatories from a third witness on the point would be sufficient at the moment, unless any further issue is disclosed, in which case Dr. Seidl could summon the witness.
THE PRESIDENT: Well, now, you can pass on to your documents.
DR. SEIDL: Very well. It is my intention first to read further passages from individual documents in Rudolf Hess’s document book which was submitted by the Prosecution in order to establish the connection. A further justification of the relevance of these documents would be superfluous, since it is entirely a question of documents submitted by the Prosecution which have already been accepted in evidence by the Court.
SIR DAVID MAXWELL-FYFE: My Lord, the application is in this form:
“I intend to read pages from the following books: Rudolf Hess’s Speeches; Directives of the Deputy of the Führer. The relevancy of these documents can be inferred simply from the fact that both have already been introduced in evidence by the Prosecution.”
Insofar as the documents are documents already before the Tribunal, of course, Dr. Seidl may, within the usual limits, comment on them as much as he likes. If he intends to put in other speeches and directives, documents of the same class, then the Prosecution asks that he indicate which speeches and which directives he is going to put in.
DR. SEIDL: What Sir David Maxwell-Fyfe just read was the second point of my application. It is true that I also intend to read certain passages from the book, Rudolf Hess’s Speeches, and also from the book Directives of the Deputy of the Führer. But since the Prosecution has already submitted passages from both these books in evidence, which were likewise already accepted as evidence, I believe I may say that there are at least passages in these books—and that it is here a question of documents—that are most certainly relevant. Whether those passages that I intend to read are relevant or not can be decided only when I submit these documents and this is exactly what I meant at the beginning of my remarks, that it is possible to decide on the relevancy of a document only when one has that document before one and knows its precise contents.
SIR DAVID MAXWELL-FYFE: I hope Dr. Seidl will realize that this is largely a matter of mechanics. If he is going to introduce new speeches and new directives, they have got to be translated into English, Russian, and French; and therefore it will be necessary, for the general progress of the Trial, that he should indicate which passages he is going to put in so that they can be translated as well as considered.
I am sure that Dr. Seidl will desire to use only relevant passages. Naturally, every politician makes many speeches on many subjects, and some of Hess’s speeches may well not be relevant.
I suggest that it is not unreasonable; we are only trying to help along the general progress of the Trial by the request that I have made.
DR. SEIDL: Of course, Mr. President, I shall read only those passages from the speeches, and few of them at that, which are relevant. I have no intention of having whole sections of the book translated if it is not necessary. I declare formally to the Tribunal that neither as counsel for the Defendant Hess nor as counsel for the Defendant Frank shall I submit one single document that could not be considered as relevant.
THE PRESIDENT: Yes, but what Sir David was saying was that for the mechanics of the Trial, owing to the unfortunate fact that we do not all understand German, it is necessary that these documents which are in German should be translated. Therefore, it is necessary for you to specify which speech and which part of the speech you propose to rely upon, and then it will be translated.
DR. SEIDL: Mr. President, I shall incorporate every single passage that I intend to read in a document book, and I shall, in good time, submit to the Court and to the Prosecution every passage from a speech which I intend to read, in a document book. It is not the task of the Prosecution, nor of the General Secretary, to do work which, of course, I shall attend to.
SIR DAVID MAXWELL-FYFE: My Lord, that is quite all right. That is exactly the point that I was seeking to make.
THE PRESIDENT: Very well, now you are coming to Paragraph 3.
DR. SEIDL: Yes. Thirdly, I shall read passages from the report of the conference between the Defendant Rudolf Hess and Lord Byron, who at that time, as I recall, was Lord Privy Seal, and which took place on 9 June 1941. In this way the motives and aims which caused the Defendant Hess’s flight to England are to be clarified. The relevancy is derived directly from the fact that the Prosecution has, for its part, submitted as evidence the reports of Mr. Kirkpatrick concerning his conference with Hess.
SIR DAVID MAXWELL-FYFE: If Dr. Seidl thinks that that conversation adds anything to the conversations with the Duke of Hamilton and Mr. Kirkpatrick, I shall not object to his reading the report.
THE PRESIDENT: Where is the document?
DR. SEIDL: It is in my possession.
THE PRESIDENT: What is the nature of the document? I mean, what authenticity has it? Who made it? Who wrote it?
DR. SEIDL: The document was found among the papers of the Defendant Hess which were given to him when he was brought from England to Germany. It is a copy of the original, that is to say a carbon copy, and a series of official stamps prove beyond doubt that it is the carbon copy of an original.
THE PRESIDENT: The Tribunal would like to see the document.
DR. SEIDL: Very well.
THE PRESIDENT: If you would let us have the document, we will consider it.
DR. SEIDL: Very well.
THE PRESIDENT: Have you finished your presentation?
DR. SEIDL: Yes.
THE PRESIDENT: Then there is a letter, isn’t there? There are two other documents referred to, but you are not asking us for those? A document of a letter to Hitler on the Reich Cabinet, dated 10 May 1941?
DR. SEIDL: This application appears to have been made by my predecessor, by the lawyer Dr. Rohrscheidt. I should like to have an opportunity of examining the relevancy of this point.
THE PRESIDENT: Very well. Do you wish to say anything, Sir David, about them?
SIR DAVID MAXWELL-FYFE: We have not got that document. The Prosecution have not got the letter that the Defendant Hess sent to Hitler, and we just simply cannot help on that point.
THE PRESIDENT: Very well. If that document can be located, it shall be submitted to you.
DR. SEIDL: Very well.
THE PRESIDENT: Now, Dr. Horn.
DR. HORN: It is my intention to call as the first witness for the Defendant Ribbentrop the former Ambassador Friedrich Gaus, at present in a camp at Minden near Hanover. Ambassador Gaus was for more than three decades the head of the legal department of the German Foreign Office. I believe that this witness is necessary in view of this function alone.
SIR DAVID MAXWELL-FYFE: If Dr. Horn would carry out the same procedure as Dr. Stahmer and pause for a moment when he has introduced the witness, I shall then be able to indicate in the same way whether there is any objection.
Dr. HORN: Certainly.
SIR DAVID MAXWELL-FYFE: As far as Herr Gaus is concerned, there is no objection, subject to one point on what I may call the Foreign Office group of witnesses; and I think it will be convenient if I develop it now, and then Dr. Horn would deal with the point in one moment.
Dr. Horn is asking for Herr Gaus, Miss Blank, who was the defendant’s private secretary, and then witnesses 3 to 7, five Foreign Office officials, Herr Von Sonnleitner, Herr Von Rintelen, Gottfriedsen, Hilger, and Bruns.
The position at the moment is that there is some doubt as to whether Miss Blank was allowed or not by the Tribunal, and two of the witnesses, Von Sonnleitner and Bruns were granted on 5 December. Von Sonnleitner was granted as one of two and Herr Bruns was granted simpliciter.
The Prosecution draws the attention of the Tribunal to the fact that no special facts are stated as to which of these witnesses will speak, and at the present moment, the applications are not within the Rule of Procedure 4 (a), but what the Prosecution suggests is this:
That it is reasonable that the defendant should have certain witnesses who will speak as to Foreign Office business and activities, but they suggest that if he has Herr Gaus and his private secretary, Miss Blank, that one other Foreign Office official to speak as to general methods would be sufficient, and Von Sonnleitner is obviously the sort of person who could help the defendant on general Foreign Office matters. They suggest that to call seven witnesses to deal with his general position in the business would be unduly cumulative, and they suggest that three is sufficient.
I hope the Tribunal will not mind my dealing with the seven witnesses, but really my point involves the number of them.
DR. HORN: May I say something in reply to that? Dr. Gaus, in all probability, will be my main witness for the Defense. Therefore, since 10 November 1945, I and my predecessor have done everything to find this witness, and after that had been accomplished, to bring him here. I know that the witness, although he has now been located, is not here. Consequently, I do not know on what matters he can give us rebutting evidence. For this reason I would also prefer not to commit myself yet as to the other witnesses from the Foreign Office. I would like to demur only to the following extent: The witnesses who have been listed in addition, these additional witnesses of the Foreign Office, are not witnesses who are to give testimony on routine questions, as Sir David expressed himself, about general affairs of the Foreign Office; but they are witnesses who can offer rebutting evidence concerning special topics which the Prosecution has brought up.
I consequently suggest that a final decision should be reached as to the calling of these other witnesses only after Ambassador Von Gaus is here. In connection with this statement, I should like to ask the Court again personally to assist me in the securing of this extraordinarily valuable witness because I can submit my rebutting evidence in writing to the General Secretary in time only if I have him here soon.
THE PRESIDENT: Yes. Well, we will consider that. That deals with 1 to 7, does it not?
DR. HORN: Mr. President, may I remark that I should like to omit Witness Number 2, Fräulein Margarete Blank. Consequently not 2 to 7, but 3 to 7.
May I make the following explanation: Fräulein Blank was for many years secretary to the former Minister of Foreign Affairs, Von Ribbentrop, specifically since 1933. The witness Blank drew up a whole series of decisive sketches and memoranda and also discussed decisive points with Ribbentrop in connection with these manuscripts. Thereby I mean memoranda which expressly relate to the charges, and I therefore ask that the Tribunal’s original decision, which granted us this witness, be upheld.
THE PRESIDENT: Then you are asking, are you, that Ambassador Gaus and Fräulein Blank should be brought here as soon as possible, and that the consideration of the other witnesses 3 to 7, should be deferred until you have had an opportunity of seeing Gaus and Blank?
DR. HORN: Yes, Mr. President. As regards Fräulein Blank, I can say that she is in an internment camp near Nuremberg, in Hersbruck.
THE PRESIDENT: Did you mean that Fräulein Blank was in a camp so near Nuremberg that you could go and visit her and speak to her there?
DR. HORN: Yes, Mr. President, that is possible.
THE PRESIDENT: Very well.
DR. HORN: May I interpret this as an authorization to visit Fräulein Blank in order to interrogate her?
THE PRESIDENT: We understand that that is your application, and we will consider it.
DR. HORN: Thank you, Mr. President.
As my next witness I name the former SS Gruppenführer and personal adjutant to Hitler, at present in Nuremberg in solitary confinement.
THE PRESIDENT: Yes, Sir David?
SIR DAVID MAXWELL-FYFE: With regard to this witness, the application says that there was a decisive conference between Hitler and the Defendant Von Ribbentrop, and that he can speak as to certain things that occurred. If that is so, if he can speak as one attending the conference, the Prosecution have no objections.
They object—and this point will arise in regard to a number of witnesses—to what I call self-created evidence. That is, if a witness is merely coming to say that the defendant said that he had certain views, that, in the submission of the Prosecution, does not carry the thing any further. If I understand, this witness is speaking as an observer of the conference, and, as such, we take no objection.
DR. HORN: I should like to give Sir David my assurance that this is a witness who has first-hand knowledge of decisive events and can give such testimony.
My next witness is Adolph Von Steengracht, since 1943 Secretary of the German Foreign Office. This witness is now in Nuremberg in solitary confinement.
SIR DAVID MAXWELL-FYFE: If the Tribunal would be good enough to look at the seventh line from the foot of this application, it says that Steengracht will further testify that, contrary to the assertions of the Chief Prosecutor of the United States, the protests of the churches and of the Vatican were always processed, thus obviating even worse excesses.
If it is meant by that—and the English is a little obscure—that the Defendant Ribbentrop sent forward the protests of the churches to Hitler, then the Prosecution would feel that they ought not to object to the witness.
DR. HORN: I can say in regard to this, Mr. President, that these protests were submitted not only to Hitler, but that furthermore, on the initiative and orders of the defendant, other German offices involved in these breaches of international law were approached for the purpose of settling the difficulties arising from the protests of the churches and the Vatican.
THE PRESIDENT: Very well. Can we go on to 10?
DR. HORN: My witness Number 10 is Dahlerus. Mr. Dahlerus has already been discussed at length today, and I should like to know whether further discussion as to procurement of this witness is necessary.
SIR DAVID MAXWELL-FYFE: I have already put my general position with regard to Dahlerus. Apparently this defendant wants him on one particular point, namely, an order from Hitler; and I submit that the appropriate way would be if Dr. Horn added an interrogatory on that point.
Prima facie, it seems highly improbable that Hitler communicated his private order to a Swedish engineer, but in view of the fact that interrogatories have been ordered, I suggest that Dr. Horn can send a further interrogatory on that point.
DR. HORN: Mr. President, may I make a remark in this connection? It is not, as was translated, a question in this case of a command of Hitler, but a question of the decisive note that was the beginning of the second World War.
SIR DAVID MAXWELL-FYFE: My position goes into a great deal of these requests. This is only evidence if Herr Dahlerus can say what Hitler said, what Hitler told him. It is not evidence if Herr Dahlerus can say, “Herr Ribbentrop told me that Hitler had so ordered.” That does not add to the evidence of the defendant himself.
Therefore, I think it is essential that before one can judge of the evidential value at all, the matter should be submitted, as I suggest, by way of interrogatory.
THE PRESIDENT: Dr. Horn, unless you have anything further to add with reference to this witness, we will stop at this point, because we think it is impossible to go further today, and apparently it is impossible to finish the whole of your application this afternoon, so do you wish to add anything more about Dahlerus?
DR. HORN: Yes, I should like to make another short statement in answer to what Sir David considers as decisive for the evidence. Mr. Dahlerus will not say here what he heard from Ribbentrop; he will testify to what he heard about Ribbentrop from an important person and from Hitler himself, and that is why I consider him as particularly decisive.
SIR DAVID MAXWELL-FYFE: A general point, My Lord, in the case of the witnesses who are asked for by Dr. Horn; I had prepared the comments of the Prosecution, and they have been typed out in English. The Tribunal will realize that we received this application only yesterday, and it had to be translated and is not ready by today.
I have not been able to get this translation, but I have given Dr. Horn a copy quite informally so that he would be informed; and it might be useful if I handed it in because it might shorten the proceedings and also act as a record when the Tribunal resumes the consideration of these points. I do not know if that appeals to the Tribunal.
THE PRESIDENT: Yes, very well. Then we will adjourn now.
I want to ask the Soviet Chief Prosecutor whether it would be convenient to the Soviet Prosecution that we should continue on Monday morning with this examination of witnesses and evidence. I think it will probably take the whole of the morning if we deal with the Defendant Ribbentrop’s applications and then the Defendant Keitel’s, so that the Soviet Prosecution, if that course were adopted, would come on at 2 o’clock. Would that be convenient for them?
GEN. RUDENKO: If it is convenient for the Tribunal it will be so for us, Mr. President.
THE PRESIDENT: There is just one other point I should like to ask you. I think the Tribunal were notified that there were two witnesses the Soviet Prosecution proposed to call. I think that we said that the General Warlimont and, I think, General Halder, ought to be called so as to give the Defense Counsel the opportunity of cross-examining them.
GEN. RUDENKO: If the Tribunal so wishes I shall report on this question. I became acquainted with the transcript of the reports made by General Zorya and Colonel Pokrovsky when the question concerning witnesses Halder and Warlimont was discussed. The Soviet Delegation consider there to be no basis for objections to the Court examining the witnesses Generals Warlimont and Halder, at the request of the Defense. But the Soviet Prosecution intended to request that the Tribunal submit these witnesses as witnesses on behalf of the Soviet Prosecution.
I should like once again to report about the plan which the Soviet Prosecution has in mind regarding the conclusion of the presentation of evidence. There remains for us to present to the Tribunal the last section, “Crimes against Humanity.” The presentation of this will take approximately 3 to 4 hours.
In addition, we shall ask the Tribunal to permit us to interrogate, episode by episode, four witnesses, Soviet citizens who have been specially brought and now are in Nuremberg. In such a way we consider that if we start our presentation tomorrow at 2 o’clock, then on Tuesday we will finish our presentation on all counts.
THE PRESIDENT: The Tribunal will expect to have General Warlimont and Halder presented here before the Soviet case finishes, not for the Soviet Prosecution to ask them questions but for them to be cross-examined by the Defense if the Defense want to, but that may take place at any time that is convenient to you. If you wish, they could be called at 2 o’clock on Monday; if you prefer, at the end of the Soviet presentation, either on Tuesday afternoon or on Wednesday morning, whichever is convenient to you.
GEN. RUDENKO: As I already stated, the Soviet Prosecution did not think of introducing either Halder or Warlimont. The Soviet Prosecution did not object that, on the request of the Defense Counsel, Halder and Warlimont be subjected to cross-examination. As far as I know, as far back as last December, the Tribunal granted the application of the Defense to call Halder into court as a witness.
Therefore it seems to me, and in order to expedite the exposition of material of the Soviet Prosecution, this really will not influence the examination of essential questions, that the examination of the witnesses Warlimont and Halder be made in the Trial during the presentation of evidence by Defense Counsel.
As far as I know, in the application of the Defendant Keitel, which was presented to the Tribunal, Halder and Warlimont are indicated as witnesses, and the Defendant Keitel and his attorney applied for examination of them as witnesses on behalf of the Defense.
On the basis of this, I consider that the examination of these witnesses should be made during the presentation of evidence by the Defense Counsel.
THE PRESIDENT: The Tribunal understands that both General Warlimont and General Halder are here in Nuremberg. Is that so?
GEN. RUDENKO: Yes.
THE PRESIDENT: Probably the most convenient course would be for the Tribunal to see exactly what order the Tribunal made with reference to their being called. We will look up the shorthand notes and see exactly what order we made and deal with the matter on Monday morning.
In the meantime, on Monday morning we will continue, as you said is convenient to you, the applications by Dr. Horn for the Defendant Ribbentrop and the applications by Dr. Nelte on behalf of the Defendant Keitel; and we shall sit from 2 until 4 o’clock only on Monday afternoon.
[The Tribunal adjourned until 25 February 1946 at 1000 hours.]