The position was that last September—on 25 September—the British Government sent a full report of this incident to the United Nations War Crimes Commission. That report included statements before a court of inquiry, statements of Allied witnesses, statements taken from German witnesses, including General Westhoff, a copy of the official lists of the dead, and a report of the protecting power. All that was sent by the British Government to the United Nations War Crimes Commission last September; and the statement of General Westhoff, which I certified as being a report of the United Nations War Crimes Commission, was part of an appendix to that report which was then in the custody of the United Nations War Crimes Commission and of which a copy was sent to me here.
I provided that to my French colleagues and that refers to an earlier report made by General Westhoff at an interrogation which took place in London as a part of the matter of that report.
The document which my learned friend was adducing today was a summary of a subsequent interrogation of General Westhoff taken in Nuremberg. My Lord, I wanted to get the position perfectly clear, if I could, to the Tribunal, because, as I say, the incident is one of some importance and the British Government report will be, I hope, tendered the Tribunal by my Soviet colleague, as the incident lies to the east of the line which we have drawn through the center of Berlin and therefore falls within the Soviet case.
But I do not want the Tribunal to be under any misapprehension as to the nature of the earlier report that was made, the one which my learned friend referred to as being able to put in later should the Tribunal desire it.
THE PRESIDENT: But you are agreed that the document which is now being offered to the Tribunal is not a government document within Article 21 of the Charter?
SIR DAVID MAXWELL-FYFE: I quite respectfully agree that that is not really the document on which I intervened. I intervened on the second one.
THE PRESIDENT: At this stage we are not concerned with that document, only with the document offered in evidence to which Dr. Nelte objected, and that document is not a government document within Article 21.
SIR DAVID MAXWELL-FYFE: That I understand is so, but I was really intervening to explain that the second document comes. . . .
THE PRESIDENT: I quite understand, yes. The Tribunal allows the objection of Dr. Nelte. It considers that the document which has been submitted is not a governmental document within Article 21 of the Charter and is therefore rejected. The Tribunal adheres to the decision which I announced just before we adjourned, namely, that if the Prosecution desires to do so, they can produce the interrogation of which the document submitted to them is understood by them to be a résumé; and if they do so, then they must produce the witness, General Westhoff, for cross-examination by the defendant’s counsel. In the alternative, they can produce and call General Westhoff himself and then, of course, he will be liable to cross-examination by the defendants’ counsel.
M. QUATRE: I take notice of the Tribunal’s decisions and I should like to state that as I am eager not to lose time, and much time has already been lost in the course of today’s session, we shall not make use of this document now, nor shall we call General Westhoff. I shall simply request the Tribunal to note that we reserve the right to call General Westhoff, if necessary, when the defendants are cross-examined. May I continue, Mr. President?