Trial of the Major War Criminals Before the International Military Tribunal, Nuremburg, 14 November 1945-1 October 1946, Volume 09

by Various

Morning Session

DR. SERVATIUS: Mr. President, yesterday I received the translation of Document D-728. It is the document which was objected to yesterday as being incorrect.

THE PRESIDENT: Yes.

DR. SERVATIUS: I request to have this retranslated, since this translation is considerably different from the original wording and, in particular, fails to make clear where the mistakes are which led to the objection against the document. On the first page of that document there are about 20 to 30 objections to be made. The translator, since he could not realize the importance of the document, translated it quickly without emphasizing the decisive points. A careful translation ought to be made, which would enable us to get an idea of the original document. I am fully aware of what the difficulties are.

THE PRESIDENT: Certainly, the translation shall be checked by a different translator, or, if you like, by two different translators.

DR. SERVATIUS: May I ask to have a new translation made for comparison, since the version which we have here is also evidence of the fact that the original already contains considerable mistakes.

THE PRESIDENT: Certainly, it shall be checked and retranslated.

DR. SERVATIUS: Then, I request further that the opinion of an expert on the German language be obtained. This opinion will ascertain that the author of this document does not have full control of the German language and that it must have been drawn up by someone who was a foreigner. I do not want to give detailed reasons, but I would like to make this motion in writing.

THE PRESIDENT: I think you must certainly make a written application about that.

DR. SERVATIUS: I shall submit it in writing.

GEN. RUDENKO: Defendant Göring, in your statement you said that the attack on Poland was perpetrated after the bloody happenings in the town of Bromberg.

GÖRING: I said that the date for the attack was set due to the bloody events which included, in addition to many other incidents, also the Bloody Sunday at Bromberg.

GEN. RUDENKO: Do you know that these events happened on 3 September 1939?

GÖRING: I might have made a mistake regarding the date of Bromberg; I would have to see the documents about that. I merely quoted that as one example among a lot of others.

GEN. RUDENKO: It is understandable. The attack was perpetrated on 1 September, and the events in the town of Bromberg, which you just mentioned to the Tribunal, happened on 3 September 1939. I submit to the Tribunal the document evidence issued by the High Commission for the Investigation of German Crimes in Poland, which is duly certified in accordance with Article 21 of the Charter. From this testimony it is clear that the events about which the Defendant Göring is testifying here happened on 3 September 1939, that is to say, on the third day after the attack by Germany on Poland.

THE PRESIDENT: You can put the document to the witness, if you want.

GEN. RUDENKO: I have no German text. I have it in English and in Russian. I just received this document. It is dated 19 March, and I will submit it to the Tribunal as conclusive evidence to prove this fact.

THE PRESIDENT: I do not think this is the appropriate time to put in documents in that way.

Very well, you can put in the document now if you like.

GEN. RUDENKO: Thank you, Mr. President.

THE PRESIDENT: It must be translated into German, of course.

GEN. RUDENKO: I have no German translation of this document.

THE PRESIDENT: It has to be translated into German in order that defendant’s counsel may see it.

GEN. RUDENKO: We will do that without fail.

DR. STAHMER: Mr. President, may I ask to have the document read now? It is only a short memorandum; so we can hear immediately what it contains.

THE PRESIDENT: Very well. Will you read it into the record, General Rudenko?

GEN. RUDENKO: Yes, Sir. It is very short:

“Certificate Based on the Investigation Performed by the Polish Legal Authority.

“The High Commission for the Investigation of German Crimes in Poland certifies that the so-called Bloody Sunday in the town of Bromberg took place on 3 September 1939, that is to say, 3 days after the time when Poland was subjected to the German attack.

“On 3 September 1939, at 1015 in the morning, German Fifth Columnists attacked Polish troop units retreating from Bromberg. During the fighting 238 Polish soldiers and 223 German Fifth Columnists were killed. As a consequence of the events after the entrance of the German troops into the town of Bromberg, they began mass executions, arrests, and deportations of Polish citizens to concentration camps, which were performed by the German authorities, the SS, and the Gestapo. There were 10,500 murdered, and 13,000 exterminated in the camps.

“This certificate is an official document of the Polish Government and is submitted to the International Military Tribunal in accordance with Article 21 of the Charter of 8 August 1945.

“Stefan Kurovsky, member of the High Commission for the Investigation of German Crimes in Poland.”

I should like to prove by this document that the events regarding which the Defendant Göring gave testimony happened after the attack by Germany on Poland.

GÖRING: I am not sure whether we are both referring to the same event.

GEN. RUDENKO: I am speaking about the events in the town of Bromberg. You spoke about them.

GÖRING: Perhaps two different events took place in Bromberg.

GEN. RUDENKO: It is quite possible.

I pass on to the following question: It is known to you that there was an order by the OKW regarding the branding of Soviet prisoners of war, and what do you think about that?

GÖRING: That order is not known to me, and no representative of the Air Force was present at this preliminary discussion as I have ascertained here from the records.

GEN. RUDENKO: I am interested as to whether you knew about this or not. The orders are quite clear.

GÖRING: No.

GEN. RUDENKO: Do you know that the German High Command ordered that Soviet war prisoners and Soviet citizens had to be used for clearing mine fields and transporting bombs that had not exploded, et cetera? Do you know about that?

GÖRING: I know that Russian prisoners of war who were engineers had to clear the mines which they had laid. To what extent the civilian population was employed for that purpose I do not know, but it was possible.

GEN. RUDENKO: It is quite clear.

Do you know about an order regarding the destruction of the towns of Leningrad, Moscow, and other towns of the Soviet Union?

GÖRING: In my presence the destruction of Leningrad was discussed only in the document which was mentioned yesterday, in the sense that the Finns, in case of the capture of Leningrad, would have no use for such a big city. Of the destruction of Moscow I know nothing at all.

GEN. RUDENKO: Do you remember the minutes of the meeting? This document was presented to you yesterday—the minutes of the meeting of 16 July 1941. You were present at this meeting. They state that the Führer declared . . .

GÖRING: I have just mentioned and confirmed that.

GEN. RUDENKO: Did you speak about this same document? But, besides this statement, there were also official orders.

GÖRING: Would you be good enough to put them before me, then I would be able to ascertain whether they are correct and whether they were known to me.

GEN. RUDENKO: I have no intention of submitting these documents to you. They have already been submitted to the Tribunal. I am interested only as to whether you were aware of these orders.

GÖRING: I received no order to destroy Leningrad or Moscow in the sense which you have indicated.

GEN. RUDENKO: All right. You were told only about the important happenings. But orders for the destruction of cities, and murder of millions of men, et cetera, went through so-called service channels.

GÖRING: If a town was to have been destroyed by bombing, then that order would have been given by me directly.

GEN. RUDENKO: On 8 March, here in the Tribunal, your witness Bodenschatz stated that you told him in March 1945 that many Jews were killed and that for that you will have to pay dearly. Do you remember this testimony of your witness?

GÖRING: This testimony, in the form in which it was translated now, I do not recollect at all. The witness Bodenschatz never said it that way. I ask that the record of the session be brought in.

GEN. RUDENKO: How did Bodenschatz say that? Do you remember?

GÖRING: That if we lost the war we would have to pay dearly.

GEN. RUDENKO: Why? For the murders which you had perpetrated?

GÖRING: No, quite generally, and after all, we have experienced just that.

GEN. RUDENKO: Quite generally. I have a few concluding questions to put to you. First of all, regarding the so-called theory of the master race. I should like to put to you only one question in this connection and I should like you to reply directly to it. Were you in accord with this principle of the master race and education of the German people in the spirit of it, or were you not in accord with it?

GÖRING: No, and I have also stated that I have never used that expression either in writing or orally. I definitely acknowledge the differences between races.

GEN. RUDENKO: But do I understand you correctly that you are not in accord with this theory?

GÖRING: I have never expressed my agreement with the theory that one race should be considered as a master race, superior to the others, but I have emphasized the difference between races.

GEN. RUDENKO: You can answer this question; it seems, you do not consider it right?

GÖRING: I personally do not consider it right.

GEN. RUDENKO: The next question: You have stated here to the Tribunal that you did not agree with Hitler regarding the question of the annexation of Czechoslovakia, the Jewish question, the question of war with the Soviet Union, the value of the theory of the master race, and the question of the shooting of the British airmen who were prisoners of war. How would you explain that, having such serious differences, you still thought it possible to collaborate with Hitler and to carry out his policy?

GÖRING: That was not the way I worded my answers. Here, too, we must consider separately various periods of time. As to the attack against Russia, there were no basic differences but differences as to the date.

GEN. RUDENKO: You have told that already. Excuse me; I do not want you to be lengthy on this theme. Will you reply directly?

GÖRING: All right. I may have a different opinion from that of my Supreme Commander, and I may also express my opinion clearly. If the Supreme Commander insists on his opinion and I have sworn allegiance to him, then the discussion comes to an end, just as it is the case elsewhere. I do not think I need to elaborate on that.

GEN. RUDENKO: You are not just a simple soldier, as you stated here; but you have presented yourself also as a statesman?

GÖRING: There you are right. I am not only a simple soldier, and just because I am not a simple soldier but occupied such a prominent position, I had to set an example for the ordinary soldier by my own attitude as to how the oath of allegiance should be adhered to strictly.

GEN. RUDENKO: In other words, you thought it possible, even with the presence of these differences, to collaborate with Hitler?

GÖRING: I have emphasized it and I maintain that it is true; My oath does not hold good only in good times but also in bad times, although the Führer never threatened me and never told me that he was afraid for my health.

GEN. RUDENKO: If you thought it possible to co-operate with Hitler, do you recognize that, as the second man in Germany, you are responsible for the organizing on a national, scale of murders of millions of innocent people, independently of whether you knew about those facts or not? Tell me briefly, “yes” or “no.”

GÖRING: No, because I did not know anything about them and did not cause them.

GEN. RUDENKO: I should like to underline again, “whether you were informed of these facts or not.”

GÖRING: If I actually do not know them, then I cannot be held responsible for them.

GEN. RUDENKO: It was your duty to know about these facts.

GÖRING: I shall go into that.

GEN. RUDENKO: I am questioning you. Reply to this question: Was it your duty to know about these facts?

GÖRING: In what way my duty? Either I know the fact or I do not know it. You can ask me only whether I was negligent in failing to obtain knowledge.

GEN. RUDENKO: You ought to know yourself better. Millions of Germans knew about the crimes which were being perpetrated, and you did not know about them?

GÖRING: Neither did millions of Germans know about them. That is a statement which has in no way been proved.

GEN. RUDENKO: The last two questions: You stated to the Tribunal that Hitler’s Government brought great prosperity to Germany. Are you still sure that that is so?

GÖRING: Definitely until the beginning of the war. The collapse was due only to the war’s being lost.

GEN. RUDENKO: As a consequence of which, you brought Germany, as a result of your politics, to military and political destruction. I have no more questions.

THE PRESIDENT: Does the Chief Prosecutor for France wish to cross-examine?

M. AUGUSTE CHAMPETIER DE RIBES (Chief Prosecutor for the French Republic): I ask the Tribunal for permission to make one very short statement to fulfill the desire expressed by the Tribunal and to abbreviate as much as possible the discussions at this Trial. The French Prosecution has come to an agreement with Mr. Justice Jackson and with Sir David that the questions put to the Defendant Göring as a witness should be only those which are considered pertinent.

The questions have been asked and we have heard the answers of the defendant, as far as it was possible to obtain from him anything except propaganda speeches.

I think the Defense will not be able to complain that its freedom has been curtailed. It has been able to use its freedom abundantly in the past 12 sessions without having been able in any way to weaken the Prosecution’s overwhelming accusations, without having been noticeably able to convince anyone that the second man in the German Reich was in no way responsible for launching the war or that he knew nothing of the atrocities committed by the men whom he was so proud to command.

THE PRESIDENT: You will no doubt have the opportunity later to comment, but the question that I ask you now is whether you wish to ask the witness definite questions.

M. CHAMPETIER DE RIBES: Mr. President, I have finished; I have said all that I wanted to say, that is to say, after all these long discussions, the French Prosecution feels that nothing has been changed in the crushing accusation which we brought forth. Consequently, I have no further questions to ask the defendant.

THE PRESIDENT: Dr. Stahmer?

DR. STAHMER: The British Prosecution has stated that you issued direct orders to the Hermann Göring Division during its employment in Italy referring to the fight against the partisans. Is that statement correct?

GÖRING: No. The Hermann Göring Division was a ground division and was part of the operational task force of an army and army group. Consequently, it could never have received orders for its tactical employment from me, from Berlin or from my headquarters, which were not on the scene. Therefore I could not have given it any orders as to whether and how it was to be employed in the partisan war. Only such orders are in question as referred exclusively to matters of personnel and equipment or which concerned the internal administration of justice with regard to officers; nor did the division submit to me daily reports but only . . .

SIR DAVID MAXWELL-FYFE: I did not catch that. I am sorry, My Lord, I should have spoken earlier. I gather that these questions are directed to the Hermann Göring Division. The defendant never dealt with that point when he was being examined in chief; and, therefore, I never dealt with it in cross-examination, because the point had not been raised. It is therefore my submission that it is quite inadmissible for the matter to be raised in re-examination.

THE PRESIDENT: You must remember, Sir David, that the practice in foreign countries is not the same as the practice in the United States and in England; and although it is perfectly true that Dr. Stahmer, according to the rules of England at any rate, would not be able to raise this point in re-examination, we are directed by the Charter not to deal technically with any question of evidence. It may be you would have to ask him some questions thereafter in cross-examination, although I hope that will not be necessary, in view of the evidence of the witness Kesselring.

SIR DAVID MAXWELL-FYFE: I considered that point, but I wanted only to make it clear that the Prosecution has not dealt with this point at all, because it had not been raised previously.

THE PRESIDENT: No; either in the examination or in the cross-examination.

SIR DAVID MAXWELL-FYFE: Or in the cross-examination.

THE PRESIDENT: Sir David, I had already noticed the point that the question had not been raised in the evidence of Hermann Göring.

DR. STAHMER: May I, in explanation, assert that I received the document only yesterday and consequently could not take any attitude earlier toward this question, which has been dealt with already by the Prosecution.

THE PRESIDENT: But, if my recollection is correct, the witness, Field Marshal Kesselring, raised this very point himself, and therefore the point was obvious and could have been raised in examination in chief, in which case it would have been dealt with by the Defendant Göring. It does not depend upon any particular document; it depends upon the evidence of the Field Marshal Kesselring, who said that he was bypassed—I think the word as it was translated was that he was bypassed between the Hermann Göring Division and the Defendant Göring, although the Hermann Göring Division was under his command. So it has nothing to do with any document.

DR. STAHMER: May the witness continue, Mr. President.

THE PRESIDENT: Yes.

GÖRING: The division was under my command only as far as personnel, commissioning of officers, and equipment was concerned but not as to its employment. I did not receive reports daily, but at intervals, regarding events, losses, replacements. That, on the whole, was all the connection I had with that division. I could not give any orders for its employment, since it was under the command of parts of the Army.

DR. STAHMER: Did you receive a report regarding the events at Civitella?

GÖRING: No, I did not receive that report. I have learned of it for the first time here from the affidavit of an Army general who was in command of that division and who was also responsible for these matters, and who apparently is trying now to shift that responsibility to the division and, because of the name of the division, on to me.

DR. STAHMER: Your relation to Hitler and your influence upon him has again been touched upon during cross-examination. Will you please summarize the facts briefly by particular periods, which are necessary to form an opinion on that relation?

GÖRING: Already during the cross-examination I have pointed out that a very long period is involved here. In 1923, when I was an SA leader, my relation was normal. Then there is a long interval—1931 . . .

MR. JUSTICE JACKSON: May it please the Tribunal. It seems to me in the interests of time highly objectionable to allow the witness now to summarize. He was given the advantage of answering any questions he wanted as he went along. It seems to me that when he has covered a subject at least once—and as a matter of fact he covered this one four or five times in an address at nearly every question that would permit—that that at least should bring us to the end of that subject. It was exhausted.

The matter of time here is a grave matter. By our calculation—a careful calculation—of the witnesses which have been allowed, this Trial will now project into August. It does not seem that we should allow him to play this game both ways, to make his speeches during the cross-examination and then to sum them up again afterwards.

THE PRESIDENT: Dr. Stahmer, the Tribunal has allowed you to ask questions which, strictly speaking, are not admissible in re-examination and I want to make it clear to you what questions are admissible in re-examination—only these which arise out of the cross-examination. As to this particular question, the Defendant Göring was allowed to make what were really speeches in his examination in chief without any interruption whatever; and he went over the whole history of the Nazi regime from its inception until the end of the war and the Tribunal does not consider that he ought to be at liberty to go over the same ground again in re-examination.

DR. STAHMER: Mr. President, I had merely asked that question because up to now it had not been dealt with comprehensively and I think it necessary, in order to form an opinion of the defendant and his attitude during that time, to have a comprehensive and coherent account of this matter which in my opinion is so important for the decision to be made in this Trial. If, however, the Tribunal objects to this question, I must submit to that decision and withdraw the question.

[Turning to the defendant.] I have another question. During your examination, you stated, regarding certain accusations, that you want to assume responsibility for them. How is that to be understood?

GÖRING: As to responsibility, one must discern between formal and actual responsibility. Formally, I bear responsibility for that which was done by those departments and offices which were under my command. Although I could not possibly have seen or known beforehand everything that was issued or discussed by them, I must nevertheless assume formal responsibility, particularly where we are concerned with the carrying out of general directives given by me. Actual responsibility I see in those cases in which I personally issued orders or directives, including in particular all acts and facts which I signed personally or issued authentically, but I mean these facts only and not so much general words and statements which were made during those 25 years here and there in small circles. In particular, I want to say the following very clearly about responsibility: The Führer, Adolf Hitler, is dead. I was regarded as his successor in leading the German Reich. Consequently I must declare, with reference to my responsibility, that it was my aim . . .

THE PRESIDENT: The Tribunal would wish that you should not make speeches. The Tribunal is perfectly well able to understand the difference between formal responsibility and actual responsibility for orders given by you.

GÖRING: I acknowledge my responsibility for having done everything to carry out the preparations for the seizure of power, and to have made the power firm in order to make Germany free and great. I did everything to avoid this war. But after it had started, it was my duty to do everything to win it.

THE PRESIDENT: We have already heard you say that more than once and we do not wish to hear it again.

GÖRING: On the question of labor: During the war, the inhabitants of the occupied territories were brought in to work in Germany and their countries were exploited economically.

THE PRESIDENT: Dr. Stahmer, you are supposed to be asking questions of the witness. Now, what question is that in answer to?

DR. STAHMER: I had asked him about his responsibility . . .

THE PRESIDENT: You can ask him questions, but you cannot ask him general questions which invite speeches. If you have any particular questions to ask him which arise out of the cross-examination, now is the time to ask them.

DR. STAHMER: I put this question: To what extent does he consider himself responsible for the points mentioned here in the cross-examination regarding the deportation of workers . . .

MR. JUSTICE JACKSON: I object to this question being put.

THE PRESIDENT: He has already told us about that. He answered that question more than once.

DR. STAHMER: In that case, I have no further questions to ask.

THE PRESIDENT: Very well. Then the defendant can retire.

[The defendant left the stand.]

THE PRESIDENT: Yes, Dr. Stahmer.

DR. STAHMER: May I first of all give a short review of the present stage of the Trial so that the Tribunal can see what the list of witnesses still granted to me is like now. I was going to forego Dr. Lohse.

THE PRESIDENT: Dr. Lohse, did you say?

DR. STAHMER: Yes, I abstain from calling Dr. Lohse, because the defendant has in my opinion already made sufficient statements on that subject. Furthermore, I had been granted Ambassador Dr. Paul Schmidt as a witness. That witness, of whom I want to ask a few questions only, I should like to hear later, subsequent to his examination by the Defendant Ribbentrop, because he will have to answer a wide range of questions during that examination, and it appears to me appropriate if I ask him subsequent to that—which is also in accord with the wish of Dr. Horn—if the Tribunal will agree to that procedure, the witness Koller . . .

THE PRESIDENT: Certainly.

DR. STAHMER: The witness Koller, as it has now been ascertained, is in Belgium, and not in Germany. His hearing was provided in case he was in Germany. Consequently, I shall have to submit an interrogatory to that witness. That has been done, but the interrogatory has not yet been returned.

THE PRESIDENT: Yes.

DR. STAHMER: Furthermore, I have received permission to submit interrogatories to the witnesses Ondarza, Freiherr Von Hammerstein, Kammhuber, Student, and Bunjes. The interrogatories have been submitted but have not been returned yet. The situation is that the addresses of Ondarza and Kammhuber have since been ascertained; as to the other three witnesses, inquiries are still being made, so that also here I cannot yet submit anything. Then there are interrogatories of Uiberreither, Lord Halifax, and Forbes; from Halifax and Forbes the interrogatories have been received, and I am going to read them; from Uiberreither there is a written statement as well. Then it concerns . . .

THE PRESIDENT: What do you mean by “a written statement as well”? You said there are the interrogatories from Lord Halifax and Sir George Ogilvie-Forbes.

DR. STAHMER: Interrogatories have been received from Lord Halifax and Forbes. There is a written affidavit from Uiberreither and I assume that that may take the place of an interrogatory.

THE PRESIDENT: Yes, I understand.

DR. STAHMER: Furthermore, there is the Katyn case, Mr. President. Five witnesses are involved. I am still making inquiries regarding their addresses. I am therefore not in a position to have these witnesses called before the Tribunal.

THE PRESIDENT: Yes, Dr. Stahmer. Was that all that you wished to say at this stage?

DR. STAHMER: Yes, upon the question of these witnesses; in addition I must present what I have in the way of documents and then I shall have completed my case for the time being. I have put down in writing what I have to say about the documents.

THE PRESIDENT: Just one moment.

DR. STAHMER: Yes, sir.

THE PRESIDENT: Yes, Dr. Stahmer, the Tribunal approves of the course which you suggest.

MR. JUSTICE JACKSON: May I, in the interest of time, make a suggestion, Your Honor, that these documents which Dr. Stahmer proposes to offer, I understand, have been translated into all four languages, so that the reason for reading them in open court does not sustain. I cannot speak for my colleagues since I have not consulted them, but so far as the United States is concerned, we will not raise a question of relevancy; we spend no time arguing points of relevancy. I suggest that the reading of a whole document book seems a waste of time of the Trial Court since the documents are available in all four languages.

THE PRESIDENT: Dr. Stahmer, before we consider that course which has been suggested by Mr. Justice Jackson, we should like to hear whether any of the other Chief Prosecutors have anything to add to it.

SIR DAVID MAXWELL-FYFE: I respectfully submit that it is an excellent suggestion and I want to make it clear to the Defense Counsel that I feel that it will, on the one side, avoid arguments of relevancy on comparatively small points and, on the other side, the Defense Counsel will be able to use any of the excerpts in their final speeches with more effect and probably with more help to the Tribunal than merely by reading them at this stage. I respectfully support it and consider that it will improve the general condition.

THE PRESIDENT: Thank you, Sir David. We will hear you in a moment, Dr. Stahmer, but I do not want you to go away; I want you to be able to hear. I want to hear General Rudenko too.

GEN. RUDENKO: I am fully in agreement with the suggestion of Mr. Justice Jackson and that of Sir David Maxwell-Fyfe and I also consider that the Tribunal accept these documents which have been translated in four languages. This does not exclude the premise, namely that the Defense has no right to submit documents that have nothing to do with the present case. In particular I have a definite objection against submitting as exhibits the extracts from documents of the so-called White Book which are being submitted by Dr. Stahmer in the document book. These extracts have nothing to do with the present case and they should not be submitted.

THE PRESIDENT: Does the French Chief Prosecutor wish to add anything to what has been said?

M. CHAMPETIER DE RIBES: The French Prosecution has laid before the Tribunal a note requesting rejection of Document Number Göring-26. It concerns indeed an extract from a note from the German Government to the French Government regarding the treatment of German prisoners of war in France. This extract refers to a secret order from the headquarters of the general commanding the 9th French Army. This extract says that the general commanding the 9th French Army published an order; this order was not given to us. We are dealing only with an assertion of the German Government, which is the government of the defendant. The extract which is offered to us has therefore no relevancy and we ask the Tribunal to reject it.

THE PRESIDENT: The Tribunal, at the moment, is not considering the question of relevancy of particular documents. They are considering only the general question of method as to whether all these documents have to be read out to the Tribunal or whether they can be laid before the Tribunal for the Tribunal’s consideration. If they have got to be read out in full it will take a very considerable time, and therefore Mr. Justice Jackson has suggested that instead of all these documents being read out in full, which will take a very long time, as they have been translated, the reason for that no longer exists as it did exist in the case of the documents put in by the Prosecution which had not been translated. But that does not mean that the question of relevancy of individual documents or particular passages in the documents is decided by the document books being presented for the consideration of the Tribunal. Such questions as that may, in important cases, have to be considered after argument, but as a general rule and for the purpose of avoiding delay, the suggestion of Mr. Justice Jackson appears to have a very great deal to recommend it.

M. CHAMPETIER DE RIBES: The matter which is before us today is to find out whether all of the documents which have been submitted are relevant, and that is why I asked that the Tribunal reject one of the documents as irrelevant. If it is understood, that this question may be brought up later when the document is produced then I see no objection to postponing my explanation. I wish to state concerning Document Number Göring-26 only that the quotation read by Dr. Stahmer is mutilated and I shall ask the Tribunal to hear this document read in full.

THE PRESIDENT: We would like to consider this matter, but before doing so we would like to know whether you have any objection to the suggestion that has been made. You understand what Mr. Justice Jackson’s suggestion is?

DR. STAHMER: Yes, Mr. President, I understand. It touches upon a fundamental question of the defense, and I should like to discuss this question briefly with the other Defense Counsel. I should like to suggest that the Court take a short recess now so that there will be an opportunity to discuss the matter. I would then make my statement afterwards. I should like to point out now that at the time we were willing to forego the reading of the Indictment, and its being read was not due to our objections. The gentlemen probably were of the opinion that it had to be read as a matter of principle. I shall clarify the question and report immediately.

THE PRESIDENT: What do you say about the reading of the Indictment? Are you making a complaint because the Indictment had been read?

DR. STAHMER: No, no, no.

THE PRESIDENT; The matter stands upon a different footing. The Charter, which is the document which governs the actions of the Tribunal, provided that the Indictment must be read. It does not follow that what is now being suggested is not provided for in the Charter. The only reason why we ruled that every document which the Prosecution wished to rely upon be read in open court was because the Prosecution, at that time, had not found it possible to translate into four different languages every document which it wished to put in evidence and for the convenience and in fairness to the defendants and their counsel. We ordered, as you remember at an earlier stage, that every sentence in a document upon which the Prosecution relied and which we could consider as evidence should be read into the microphone so that it could come to you in German and would appear in the record, in the transcript. That principle no longer applies to the documents which are now put in because they have been translated into four different languages by the Prosecution’s Translation Division. Therefore, in the interest of time, which must be almost equally important to the Defense as well as to everyone else concerned, it seems to the Tribunal that the suggestion which Mr. Justice Jackson has made is a very sound one and you will, of course, be able to comment in any way you think right during the course of your final speeches upon the documents on which you rely, subject to any question of relevancy which may be of real importance. There may be certain documents which may be objected to by the Prosecution, but, as Mr. Justice Jackson said, he will not now raise any question of relevancy, and he is ready to have all these documents referred to in your document book considered by the Tribunal. Remember also, when we approved your documents, we expressly reserved any question of relevancy of particular passages in these documents which you might want to use.

Perhaps it will be appropriate for us to adjourn now and you can discuss the question with your colleagues.

[A recess was taken.]

DR. DIX: Gentlemen of the Tribunal: I was, of course, not in a position to have a vote taken among my colleagues of the Defense on the proposal of Mr. Justice Jackson, for the reason alone that not all Defense Counsel are present here. But I have been able to convince myself that the majority of the Defense Counsel agree with the reasons for what I am going to say, and I have no doubt that all Defense Counsel support the application which I am about to make to the effect that the suggestion of Mr. Justice Jackson should be rejected. But to be correct and loyal I feel obliged to emphasize that naturally every one of the gentlemen is entitled to present his point of view on this question for himself and within the scope of his own subject matter.

And now to the matter itself. The suggestion of Mr. Justice Jackson, especially if it is followed in principle with regard to all the documents which are to be submitted by the Defense, would aim at the introduction of a tremendous volume of documents as subject matter in the Trial without their being made known by oral presentation in open session to the public and thus to the whole world, which is passionately and wholeheartedly interested in this Trial.

I abstain from quoting, with judicial dialectics, provisions, for instance from the Charter set up for this Trial, which could be used to conduct a polemic against Mr. Justice Jackson’s proposal. I will start with the principle about the unconditional and absolute importance of which there will certainly be no difference of opinion between the Tribunal and us or between the Prosecution and us: namely, the principle that this whole Trial must be subject to the absolute postulate of justice and fairness. These are exactly the motives which prompted the authors of the Charter to give Part IV of the Charter a very pronounced heading. It says: “Fair Trial for Defendants.”

But I cannot consider it just and I cannot consider it fair if the Prosecution had the right, for months, not only once but sometimes repeatedly and often, to bring their evidence to the knowledge of the public and of the world by reading it into the microphone; and in this regard it should be noted that when these documents were presented often only parts of documents were read which, in the opinion of the Prosecution, were incriminating to the defendants, while those parts were omitted which, in our opinion, were exonerating for the defendants. It must therefore be considered an injustice that a defendant should not also have the opportunity to bring to the knowledge of the world through his defense, those matters which, in his opinion and the opinion of his counsel, speak in his favor, when the Prosecution had previously had the right and the opportunity to apply that procedure to the incriminating documents.

May I draw attention to this fact—and I have pointed it out repeatedly—that certain incriminating points have not only been brought to the knowledge of the world public by reading the documentary evidence, but were repeated in the form of representation to the defendants when they were examined as witnesses, and thereby they have been drilled into the ears of the listening world again and again. I am asking you urgently and implore Your Honors in the interest of just proceedings, which I am sure are desired by you as well as by the authors of the Charter, to give the same opportunity to the defendants.

In support of his suggestion Mr. Justice Jackson has furthermore even emphasized formally the point of view that the Trial would be shortened. The Defense does in no way deny the necessity of limiting this Trial to the time necessary. But perhaps I may in this connection draw your attention to a statement made by the president of the court at the Belsen trial in reply to press criticism about the allegedly too lengthy duration of the trial; the gist of which was that no duration however long was to be regretted as long as it helped to reveal the truth in the end. I ask you to put this principle before the necessity of saving time in this Trial as well.

And finally, may I—without assuming authority to criticize the measures decided upon and carried out by the Prosecution in accordance with their duties—may I point out that the duration of the Trial thus far, should anyone consider it too long—I do not think it is too long—was at any rate not brought about by the Defense. I think I can say with a clear conscience that so far we have not done anything, said anything, or caused anything which could be used in justly reproaching us for delaying the Trial unnecessarily.

If, furthermore, as your Lordship has pointed out, the reason no longer exists which caused the Tribunal duly to order that those parts of documents which were to become the subject matter of the Trial should be presented orally, then I should like to point out that the vast majority of the documents which were produced at the time and accordingly also presented verbally in part were already at that time available in fourfold translation.

Furthermore, I should like to point out that this documentary evidence, if it is to be comprehensible to the Tribunal and if it is to serve the purpose of establishing the truth, without doubt in many cases calls for explanatory comments by the Defense Counsel. The possibility of such comment would be removed if we are instructed to submit these documents to the Tribunal in toto.

As far as I have been able to ascertain, without wanting to prejudice anybody, my colleagues have by no means any intention of quoting the entire contents of the document books. As far as I understand it, they have in most cases rather the intention of presenting excerpts which they are going to designate, and the relevancy of which may then be discussed if occasion arises. Even such selection of those parts of the documents which are considered to be really relevant would not be possible if the Tribunal followed Mr. Justice Jackson’s suggestion. Likewise, as I said before, it would not be possible to point out, in documents already read by the Prosecution, those parts which have not been read but which are exonerating for the defendant.

If it has been said—and your Lordship has pointed it out—that the Defense Counsel have an opportunity to quote these parts of the documents during their address, then I believe I agree with the Judges that the address should, if possible, be a coherent and terse summary, evaluating the entire substance of the Trial. If we are now instructed to refer to parts of documents during the address and quote explicitly once more those to which we attach importance as evidence, but which we would not mention at all or only incidentally or summarily in connection with a comprehensive evaluation, then the danger arises that the coherence or, let us say, the bold outline of our address would suffer by a recital of the subject matter in detail. And the further danger arises that the time which Mr. Justice Jackson wishes to save through his suggestion will be lost again because the final address will take so much longer, which need not be if it is strictly a summary, an over-all evaluation, in accordance with its purpose.

I consider it even possible that later on, if possibly in the confines of our address a difference of opinion as to the relevancy of an individual document might arise, there might be considerable delay and disturbance in the proceedings, whereas, if one can submit the document in its essential parts at this time, together with statements to explain and connect them, one would have an immediate opportunity to state just why one considers the part presented as relevant, so that the Tribunal would have an opportunity to make a decision as to relevancy now.

In my opinion there are many points which speak against Mr. Justice Jackson’s suggestion. I summarize: As far as I am concerned, the most important point of view is that of fairness and justice. The Defense Counsel, as I have ascertained beyond any doubt by conversations during the recess, must and would consider it a severe and intolerable limitation of the Defense, if, contrary to the procedure exercised so far by the Prosecution, it were deprived of the possibility of presenting, in its turn, at least the relevant parts of its own documentary evidence to the Tribunal verbally and with comments. I am of the opinion, that it is a simple postulate of fairness in the forensic engagement between Prosecution and Defense that now the Defense, too, should be given the same opportunity. And this is not meant to be criticism either but merely a statement of fact, of which the Prosecution have availed themselves to a considerable and sometimes cumulative extent.

May I request, therefore, and I think my request is supported by the entire Defense that the suggestion of Mr. Justice Jackson be rejected.

THE PRESIDENT: One moment. You began your address by saying that you would not refer to the Charter. On what Article of the Charter do you rely for your argument that all documents which are presented must now be read?

DR. DIX: I said that I would not refer to individual provisions of the Charter as a basis for my application. As a basis for my application I have merely mentioned the heading of Part IV of the Charter which says, “Fair Trial for Defendants,” and I have explained and need not repeat that I would not consider it a fair trial if Mr. Justice Jackson’s suggestion were followed. However, I have deliberately—although my attention was drawn to specific provisions of the Charter which, directly or indirectly, might be used as a legal construction to support my application—I have refrained deliberately from doing so, since these individual rules in my opinion are not convincing.

The principle of justice and fairness however is sufficiently strong in my opinion, and so are the other arguments of practicability and feasibility which I took the liberty to present to the Tribunal. I think there must be a misunderstanding.

THE PRESIDENT: But you will not have omitted to notice that Article 24 deals expressly with the course of the Trial. Do you rely upon any part of Article 24?

DR. DIX: No, no. I have deliberately not referred to any part of Article 24, since that article gives considerable powers of discretion to the Tribunal, regarding the general rules of procedure which, in my opinion, have nothing to do with the question under discussion at present. This is merely a question of justice and fairness, and, if I may add this, it is a fundamental rule of oral trial. We now have an oral trial, we now have a trial in open session. It is in existence here. I am not sure whether or not the open session is prescribed by the Charter, but it exists. Since it is in existence, we must proceed in accordance with these principles and therefore, in my opinion, the defendant has also the right to present to the public of the world what is in his favor after the Prosecution have presented to the public of the world what is not in his favor.

THE PRESIDENT: I want to ask you another question: Are you suggesting that the Defense should be able to quote, to read documents, more than once?

DR. DIX: I am not suggesting that in any way. As far as I am concerned, my documents of course will be read only in part and certainly not twice. I have merely said that the Prosecution have done so, that is, have read documents twice; sometimes even three times, I am told. But it is not my task to criticize that conduct of the Prosecution; that is the Prosecution’s business. I am not here to make criticism; that is up to the Tribunal and the Prosecution. I have merely stated the fact.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal would like to put a further question to Dr. Dix before they hear you, and also . . .

MR. JUSTICE JACKSON: I would like to make a simple statement of fact . . .

THE PRESIDENT: Please do.

MR. JUSTICE JACKSON: . . . which I think will clarify this situation some in justice to the United States of America.

As to the fairness, I call the Tribunal’s attention to the fact that we have printed, mimeographed, 250 copies of Dr. Stahmer’s entire document book, and it is in the press room waiting for delivery to the press when it is received by this Tribunal, so that we have done everything that we could, everything that we did for ourselves, to make public his documents.

In the second place, we have gone so far as to print even things that the Court ruled out, rather than to have controversy with them.

In the third place, it is not the function of the Tribunal, under the Charter, to spread propaganda. A large part of this is stuff that is 20 years old and is in every good library and will not be used by newspapers and constitutes a waste of our money. We have tried to do everything in order to make this Trial completely fair to these people, and now that I have discovered that we are printing documents that the Court have already ruled out, I must say that I shall stop it. I think we have been imposed upon, and this document book will show it. There are documents after documents that the Tribunal have already ruled irrelevant, and we have gone to the expense of printing them in order to be more than fair.

DR. DIX: May I answer to that very briefly? As far as the point of view of propaganda is concerned, I regret that my suggestion has not been followed, according to which the public and the world would hear only those parts of our document books which have been recognized as relevant by the Tribunal, and then presented by us. If the contents of the document book do produce certain propaganda effects, which is unknown to me and which would be entirely against our intentions, then it is merely due to the fact that the contents of these document books have been submitted to the press not through legal and normal channels or let us say not by due procedure, that is, from the sessions’ records; instead these document books of the Defense were placed at the disposal of the press without our knowledge, and therefore also such things were communicated to the press and the world public which, in the opinion of the Tribunal, circumstances permitting, may be irrelevant or perhaps biased. Please do not misunderstand me. I am not saying that they are; I am merely talking in the abstract. But if you want to avoid just what Mr. Justice Jackson wishes to avoid, namely, that political propaganda is made by means of this Trial, then you must follow my suggestion; I want only that to be presented and brought to the knowledge of the world which has here been considered relevant by the Tribunal and admitted for presentation.

Due to the excitement in Court it is very difficult to understand every word correctly through the earphones, but if Mr. Justice Jackson meant that we are trying to obtain a propaganda effect here, that is not the case. If he further mentions the point of fairness insofar as the Prosecution had done everything to inform the world public by placing at its disposal all the document books, then I have no criticism to offer in that respect. Far be it from me to call that unfair. But here we are in Court, having proper proceedings. We are not making press propaganda; rather the press is to gather information and report to the world about this Trial from this courtroom. The Defense are only grateful if their efforts to carry through proper proceedings with full information to the press are supported by the Tribunal.

But this is not the crucial point. I have not accused anybody of being unfair. I have merely emphasized that it is a requirement of fairness to let the Defense do the same things which have continually and repeatedly been done by the Prosecution.

THE PRESIDENT: Now, Dr. Dix, will you tell me this: What suggestion do you have for shortening the Trial? You must recollect in the criticism that you have been making of the Prosecution’s case with reference to their documents, that their case has been based almost entirely upon documents. They have called—I do not know how many witnesses, but very few witnesses. You and the other defendants’ counsel are proposing to call a very great number of witnesses, and what I would ask you is: How do you propose that the Trial should be shortened so that it may not last until the end of July or August?

DR. DIX: If I make a suggestion, then I can of course do so only for myself and for the case I have to defend. May I suggest, Your Lordship, that we begin with producing the documentary evidence, and I would ask you to realize that, if I am not mistaken, none of the Defense Counsel intends to read his entire document book here before the Tribunal. Whomever I have asked, at any rate the majority, certainly did not intend to do that. Those with whom I have spoken want to quote excerpts only, and in the choice of these excerpts and in the discussion of whether their presentation would be relevant, a measure could be applied which would, of course, take into consideration the necessity of the matter as well as the question of time. I do not think that the presentation of the documents will take a very long time. My colleague, Dr. Stahmer, for instance, has told me that although he has an enormous and important case to defend, he believes that he will probably complete his case in about 2 hours or maybe in even less than 2 hours. I am not a prophet, but I think the Tribunal is considering the matter as more hazardous than it is in fact. Please give us a chance. You may certainly assume that all of us are anxious not to delay the proceedings. Also we are quite willing to take advice if the Court says, “We do not consider this or that important,” or, “This or that we consider already demonstrated,” or “We presume this or that,” et cetera. That way we will make fast progress. May I, therefore, suggest not to lay down now any obligatory abstract rule for the procedure to be followed but to go to work with us now in a practical manner and to accept our assurances that we want to assist in shortening the Trial and, to begin with, start from the standpoint that we may present what we consider relevant. If it should turn out that too much time is being taken up—which, as I have said, I do not believe—then we could still discuss that matter once more and after all, the Tribunal is at liberty to make its decisions. All I ask is that it not be done now because I am afraid that the Tribunal, on the strength of the experience with the documentary evidence of the Prosecution, is overestimating the time required for the presentation of our documentary evidence, in which connection I again repeat that this is neither reproach nor criticism. I know that the Prosecution have based their case mostly on documents, and therefore naturally had to take more time.

THE PRESIDENT: Thank you, Dr. Dix. The Tribunal would like to hear—of course, they cannot hear all the defendants’ counsel on this matter, but they would like to hear one other representative of Counsel.

DR. KUBUSCHOK: May I draw the attention of the Tribunal back to the legal aspect of the matter?

The Tribunal quite rightly raised the question: What does the Charter say regarding evidence? The difficulty is caused by the fact that specific rules on this matter are not contained in the Charter. Regarding the procedure, we have Article 24. This Article 24 refers to the session—the session, which, according to the legal language used in all kinds of criminal procedure, can mean nothing but the oral hearing and the verbal debate. What is lacking in Article 24 is a paragraph which concerns specifically the taking of documentary evidence. But may I draw your attention to subparagraph (e). There the rebuttal of evidence given by witnesses is discussed, the rebuttal, which of course, is concerned not only with the presentation of witnesses but also with the submission of documents.

It is specifically provided there that the evidence should be taken. At any rate, based on the German text and German usage of language, it would not be permissible at all if this evidence taken in the presentation were not produced now during Court sessions but if that evidence, on the basis of the presented extensive written material, were dealt with in the separate rooms of the Judges.

It is a particularly important principle of a colleague-like Tribunal, of a Tribunal which consists of several Judges, that the impression which is to be conveyed to the Tribunal should be coherent and direct. That can be achieved only if the material is presented and discussed in oral proceedings.

May I ask you to consider also that we have already acquired some experience in that respect during this Trial. I am sure that everyone who has presented a document has been very grateful to the President of the Tribunal when he interfered during the quotation of the document by limiting here or extending there, and, by doing so, let the Prosecution or the Defense Counsel, who were quoting the document, know the opinion of the Tribunal as to what is relevant. Our experience has been that this guidance by the Tribunal had favorable results later on.

As for the legal aspect, may I draw your attention to Article 21, which contains a special provision, a special provision regarding those facts which are of common knowledge and do not require any discussion. This special provision of Article 21 clearly reveals the difference between these facts and those which may be and need to be discussed. Everything that may be and needs to be discussed must be presented in court in some way so that the Tribunal has the possibility to intervene here also and to make explanatory and guiding comments. That is what I have to say as to the legal aspect of the matter.

Apart from that, I believe that I understood Mr. Justice Jackson’s suggestion somewhat differently. First of all, I think Mr. Justice Jackson’s suggestion has been somewhat enlarged during the debate. I think his suggestion was that we, as Defense Counsel, should impose certain restrictions upon ourselves not to present the submitted documentary material indiscriminately, but to confine ourselves to choosing those parts which are really worth mentioning and which call for presentation at the present stage of the Trial.

To undergo such a restriction is certainly in line with the practical duty of the Defense Counsel. Nothing is more fatal to the Defense or the Prosecution than going into detail, that is, elaborating on irrelevant facts.

Particularly under firm and strict guidance of the procedure, every Defense Counsel will soon notice whether he is on the wrong track, whether he is presenting superfluous material and, by presenting superfluous material is achieving an effect which he in no case wishes to obtain.

I therefore believe that, as my colleague, Dr. Dix, just said, the self-control of the Defense Counsel and a well-concerned interest in his case and in his client will automatically impose on him the necessary limitation in his presentation.

[Dr. Seidl approached the lectern.]

THE PRESIDENT: I said on behalf of the Tribunal that we wished to hear two counsel.

DR. SEIDL: I wanted to add only very briefly some remarks to what my two colleagues have already said—very briefly.

THE PRESIDENT: Yes, but then it may be possible that every one of the 20 or more counsel who are present wish to add something.

DR. SEIDL: I do not know, but I do not think so.

THE PRESIDENT: I said two counsel, and I meant two counsel.

DR. SEIDL: Very well.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal would like to know whether you have anything to add in reply to what has been said.

MR. JUSTICE JACKSON: I think nothing. I thought I was saving time. I begin to doubt it.

THE PRESIDENT: Mr. Justice Jackson, I think the Tribunal would like to know exactly how far your suggestion went. Were you really making any further suggestion than this: That the defendants’ counsel should not think it necessary to read every document in their document book in the course of the presentation of their defense, or were you intending to move the Tribunal to order that they should not be allowed to read any document in their document book at this stage?

MR. JUSTICE JACKSON: I thought their document book should be directed to be filed as an exhibit at this stage of the case, without reading. I would not be particular about it if they have passages they think are of particular importance which they want to call to your attention, but this document book consists of speeches made 15 years ago and published in the press in every complete library in the country, largely, together with a good deal that has been excluded. It would seem to me that they should go in, so they are available to them, and that if there are matters in them which particular countries wish to object to, they might raise the question by motion to strike or raise it now if they desire. As far as the United States is concerned, we have no objection to any of it. I think some of it is highly objectionable on the ground of relevancy, but it would take longer to argue it and it goes to certain large questions of reprisals and things of that character that will have to be settled in larger ways than questions of admission of evidence.

THE PRESIDENT: Would you, on behalf of the Chief Prosecutors, have any objection or think it inadvisable to adopt the suggestion which Dr. Dix made that we should see how far the defendants’ counsel were prepared to limit the amount of the documents which they read at this stage and see how long it takes and see whether it is necessary to make any further ruling in order to accelerate the Trial?

MR. JUSTICE JACKSON: Well, I am quite willing to experiment, but I do suggest that we are now handed a document book containing a number of documents that the Court has passed upon, and, as I recall, Your Honor called Dr. Stahmer’s attention to this at the opening of his case. I do not have so much faith, perhaps, as I ought to have.

THE PRESIDENT: I think it is very likely that documents have got into Dr. Stahmer’s book by mistake, owing to the fact that he, being for the first defendant, there were some difficulties in preparation for instance, and I have already drawn attention to it. I think there is in Dr. Stahmer’s book—I am not quite sure—a speech of Mr. Paul Boncour which has been expressly denied by the Tribunal, and those are the sort of documents to which you are referring, no doubt. And I had to draw attention also in the case of one other counsel, I think, or one other witness to a document being put to him which the Tribunal had expressly denied. But of course, that is very wrong that any document should be put into a document book which the Tribunal has expressly denied, but as I say, I think that is very likely due to some mistake.

MR. JUSTICE JACKSON: I am quite ready, and I am sure my colleagues are, to experiment with this and see how it goes.

It is—and I think I should say this for all of us—it is a difficult thing where we come from different systems and do not always understand what the other man is driving at; it is a difficult thing to reconcile these different procedures, and I am quite willing to be patient and forbearing about it and see how it works.

THE PRESIDENT: Thank you.

You must quite understand, Dr. Stahmer, that I am not making any ruling on behalf of the Tribunal at this moment as to whether or not Dr. Dix’s suggestion will be adopted, because the Tribunal will proceed now to consider the matter, and then the ruling will be made.

DR. STAHMER: Mr. President, may I make just a personal explanation? The inclusion in my document book of the documents which had been denied is due to the following facts: At the request of the Translation Division the document book had already been handed to that division before the Tribunal had made its negative decision, and that accounts for the inclusion. I was put under considerable pressure at the time to hand the book over so that it might be submitted to the Court in translated form. That is how it happened.

THE PRESIDENT: I thought it was probably that, Dr. Stahmer.

The Tribunal will adjourn now until 2:30.

[The Tribunal recessed until 1430 hours.]

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