SIR DAVID MAXWELL-FYFE: Your Lordship will remember that you allowed the matter to stand over. We have been working along the lines that Your Lordship suggested, but I am afraid that I have not had time to go into it myself and see the final result.
THE PRESIDENT: I see.
DR. SERVATIUS: In discussing the witnesses, I proposed a restriction which is being presented to the Court in writing. Concerning the documents, I have also practically come to an agreement as to how they should be handled. There are, however, two principal applications which I should like to submit and which have not been mentioned so far. But I believe that a decision will have to be made by the Tribunal in respect to principle. The applications are Documents 80 and 81.
Document 80 is a photostat of a deportation order which had been issued in the city of Oels by the Soviet local commander, whereby the native male population had to report for deportation; and it can be seen from this order that it is deportation for the purpose of labor. I want to submit this to show that the Hague agreement concerning land warfare has been considered obsolete by the Soviet Army. I have only this one deportation order. I should therefore like to suggest that the Tribunal make use of Article 17(e) of the Charter and have a judge determine on the spot to what extent this deportation took place, and I should like thereby to have it shown that it is not only the town of Oels, but that it was done similarly on a large scale in the cities of East Prussia and Upper Silesia. The population was deported in large numbers for purposes of work and, if the information which I have received is correct, part of the population of Königsberg is today still in the Ural Mountains. I am not in a position to submit documents about all these things, because of the difficulties of mailing, and the difficulties of receiving news from the East at all. But the Tribunal should be in a position, by asking the mayors and other officials, to find out that what I have just said is correct.
Under Document 81 I submit an affidavit concerning the city of Saaz in Czechoslovakia. There 10,000 inhabitants of the city of Saaz were put into a camp and, until Christmas 1945, they worked there without pay. I believe also that this is proof of the fact that the Hague agreement concerning land warfare is considered to be obsolete and outmoded in regard to labor employment.
Furthermore, Documents 90 and 91: These are two books with affidavits meant as a substitute for an investigation. It would be irrelevant if I were to produce one or two affidavits concerning conditions in the labor camps. One could object to that as being irrelevant because, in view of the large number of factories and camps which exist, little proof would be afforded by these affidavits. These mass conditions have somehow to be considered juridically. Therefore, the Charter has admitted government reports. I am not in a position to ask a government to help me in this matter. Therefore I have to find a substitute by collecting affidavits and grouping them in logical form in a notebook in order to submit them to the Tribunal. This is the purpose of my proposal to introduce a presentation of proof which is an innovation and is difficult for me; but thereby the same objections are justified which one might make to an investigation. An investigation has great weaknesses, especially if it is conducted in a one-sided manner without participation of those involved on the other side. In the case of my affidavits, this danger is greatly reduced because it is hard to find anybody who would fill out these affidavits unless he has very serious reasons for doing so. I therefore ask the Tribunal to decide about my application concerning these Documents 90 and 91. That is the matter I wanted to submit here; the rest I shall discuss with the Prosecution.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, I have already intimated the grounds on which the Prosecution object to Documents 80 and 81. To test their admissibility the easiest way is to assume that Dr. Servatius has proved the facts alleged. And if that is done they would not, in my opinion, come within miles of proving that Article 52 had become obsolete; and it is illustrative of the danger which I ventured to point out to the Tribunal in regard to these two arguments—that vague and hypothetical suggestion that there might be some evidence that Article 52 had become obsolete. It is suggested that the Tribunal should try the conduct of the Soviet Union with regard to labor conditions and, as I understand, send a commission to collect evidence on that point; and I do not want to repeat the arguments, but the Prosecution most strenuously object to the suggestion and say that nothing has been indicated which provides any basis for it.
With regard to 90 and 91, I really feel that the best method would be by solvitur ambulando. Let us see the affidavits and get some idea of their contents and the source of knowledge disclosed and then the Prosecution can make a decision regarding them. At this stage I do not want to do anything to exclude them and they will receive the most careful attention by my colleagues and me when they are brought forward.
THE PRESIDENT: I am told that there are other supplementary applications for the Defendant Schacht and for the Defendant Keitel. I think there may be some mistake about that.
Is the Defendant Bormann’s counsel here?