The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/09/04

                                                  [Page 211]


THE PRESIDENT: I call upon Counsel for the United States.

MR. ALDERMAN: May it please the Tribunal, at this point we
distribute document book lettered "N," which will cover the
next phase of the case as it will be presented. Of the five
large phases of aggressive warfare, which I undertake to
present to the Tribunal, I have now completed the
presentation of the documents on the first phase, the phase
lasting from 1933 to 1936, consisting of the preparation for

The second large phase of the programme of the conspirators
for aggression lasted from approximately 1936 to March,
1939, when they had completed the absorption of Austria and
the occupation of all of Czechoslovakia. I again invite the
Court's attention to the chart on the wall, at which you may
be interested in glancing from time to time as the
presentation progresses.

The relevant portions of the Indictment to the present
subject are set forth in Sub-section 3, under Section IV
(F), appearing at Pages 7 and 8 of the printed English text.
This portion of the Indictment is divided into three parts:
First, the 1936 to 1938 phase of the plan, planning for the
assault on Austria and Czechoslovakia; second, the execution
of the plan to invade Austria, November 1937 to March 1938;
third, the execution of the plan to invade Czechoslovakia,
April 1938 to March 1939.

As I previously indicated to the Tribunal, the portion of
the Indictment headed "(a) Planning for the assault on
Austria and Czechoslovakia," is proved for the most part by
document 386-PS, which I introduced on Monday as exhibit USA
25. That was one of the handful of documents with which I
began my presentation of this part of the case. The minutes
taken by Colonel Hoszbach of the meeting in the Reich
Chancellery on 5th November, 1937, when Hitler developed his
political last will and testament, reviewed the desire of
Nazi Germany for more room in Central Europe, and made
preparations for the conquest of Austria and Czechoslovakia
as a means of strengthening Germany for the general pattern
of the Nazi conspiracy for aggression.

I shall present the materials on this second, or Austrian
phase of aggression, in two separate parts. I shall first
present the materials and documents relating to the
aggression against Austria. They have been gathered together
in the document book, which has just been distributed. Later
I shall present the materials relating to the aggression
against Czechoslovakia. They will be gathered in a separate
document book.

First, the events leading up to the autumn of 1937, and the
strategic position of the National Socialists in Austria. I
suggest at this point, if the Tribunal please, that in this
phase we see the first full flowering of what has come to be
known as "fifth column" infiltration techniques in another
country; and first under that, the National Socialist aim of
absorption of Austria.

In order to understand more clearly how the Nazi
conspirators proceeded after the meeting of 5th November,
1937, covered by the Hoszbach minutes, it is advisable to
review the steps which had already been taken in Austria by
the Nazi Socialists of both Germany and Austria. The
position which the Nazis had reached by the fall of 1937
made it possible for them to complete their absorption of
Austria much sooner, and with much less cost than had been
contemplated at the time of the meeting covered by the
Hoszbach minutes.

                                                  [Page 212]

The acquisition of Austria had long been a central aim of
the German National Socialists. On the first page of "Mein
Kampf," Hitler said, "German Austria must return to the
Great German Motherland," and he continued by stating that
this purpose of having common blood in a common Reich could
not be satisfied by a mere economic union. Moreover, this
aim of absorption of Austria was an aim from 1933 on, and
was regarded as a serious programme, which the Nazis were
determined to carry out.

At this point, I should like to offer in evidence our
document 1760-PS, which, if admitted, would be exhibit USA
57. This document is an affidavit executed in Mexico City on
28th August of this year by George S. Messersmith, United
States Ambassador, now in Mexico City. Before I quote from a
part of Mr. Messersmith's affidavit, I should like to point
out briefly that Mr. Messersmith was Consul-General of the
United States of America in Berlin from 1930 to the late
spring of 1934. He was then made American Minister in
Vienna, where he stayed until 1937.

In this affidavit he states that the nature of his work
brought him into frequent contact with German Government
officials, and he reports it that the Nazi Government
officials, with whom he had contact, were on most occasions
amazingly frank in their conversation and made no
concealment of their aims.

If the Court please, this affidavit, which is quite long,
presents a somewhat novel problem of treatment in the
presentation of this case. In lieu of reading the entire
affidavit into the record, I should like, if it might be
done in that way, to offer in evidence, not merely the
English original, but also a translation into German, which
has been mimeographed.

THE PRESIDENT: Mr. Alderman, some of the Tribunal's
documents are not marked with the 'PS " number, which makes
it very difficult to find.

MR. ALDERMAN: They are marked in pencil at the foot.

THE PRESIDENT: Well, some of them are not.


THE PRESIDENT: I wonder if you have a copy of the book,
which is numbered.

MR. ALDERMAN: If we could borrow the set that is not
numbered, we could number it.

This translation of the affidavit into German has been
distributed to counsel for the defendants.

DR. KUBUSCHOK (Counsel for defendant von Papen): An
affidavit has just been turned over to the Court, an
affidavit of a witness who is obtainable. The contents of
the affidavit contains so many subjective opinions of the
witness that it seems preferable to hear the witness
personally in this matter.

I should like to take this occasion to ask for a decision,
as a matter of principle, as to whether that which a witness
can present in person may instead be presented in the form
of an affidavit; in other words, a witness who can be
reached should be brought in instead of an affidavit.

MR. ALDERMAN: If the Tribunal please, I should like to be
heard briefly on the matter. May I be heard?
THE PRESIDENT: You have finished what you had to say, I


THE PRESIDENT: Very well, we will hear Mr. Alderman.

MR ALDERMAN: May it please the Tribunal, I recognise, of
course, the inherent weakness of an affidavit as evidence
where the witness is not present, not subject to cross-
examination. Mr. Messersmith is an elderly gentleman. He is
not in good health. It was entirely impracticable to try to
bring him here; otherwise we should have done so.

                                                  [Page 213]

I remind the Court of Article 19 of the Charter:

"The Tribunal shall not be bound by technical rules of
evidence. It shall adopt and apply, to the greatest possible
extent, expeditious and non-technical procedure, and shall
admit any evidence which it deems to have probative value."

Of course, the Court would not treat anything in an
affidavit such as this as having probative value unless the
Court deemed it to have probative value; and if the
defendants have countering evidence, which is strong enough
to overcome whatever is probative in this affidavit, the
Court will treat the probative value of all the evidence in
accordance with this provision of the Charter.

By and large, this affidavit and another affidavit by Mr.
Messersmith, which we shall undertake to present, covers
background material, which is a matter of historical
knowledge, of which the Court could take judicial knowledge.
Where he does quote these amazingly frank expressions by
Nazi leaders, it is entirely open to any of them, who may be
quoted, to challenge what is said, or to tell your Honours
what they conceive to be what they said. In any event, it
seems to me that the Court can accept an affidavit of this
character, made by a well-known American diplomat, and give
it whatever probative value it seems to have to the Court.

On the question of reading the whole thing, the whole
affidavit, I understand the ruling of the Court, that only
those parts of documents which are quoted into the record,
will be considered in the record, to have been based upon
the necessity of giving the German Counsel knowledge of what
was being used. As to these affidavits, we have furnished
them with complete German translations, so that it seems to
us that a different rule might obtain where that has been

THE PRESIDENT: Mr. Alderman, have you finished with what you
have to say?


DR. KUBUSCHOK: The representative of the prosecution takes
the point of view that the age and state of health of the
witness makes it impossible to summon him as a witness. I do
not know the witness personally, and consequently am not in
a position to state to what extent he is actually
incapacitated. Nevertheless, I have profound doubts
regarding the presentation of such evidence of such an old
and incapacitated person. I am speaking now not about Mr.
Messersmith, but I should like to open the question to what
extent the state of health of a witness determines whether
or not a person can be heard by this Court.

It is important to know what questions, in toto, were put to
the witness, since an affidavit only reiterates the answers
to the questions which were put to the person. Very often
conclusions can be drawn from questions, which were not in
fact put to the witness. It is here a question of evidence
on the basis of an affidavit, and for that reason we are not
in a position to assume, with absolute certainty, that the
evidence of the witness is complete.

I am not of the opinion of the prosecution that in this case
there are being introduced two pieces of evidence of
different value: namely, on the one hand the evidence of a
witness, and on the other hand the evidence as laid down in
an affidavit. The situation is rather this: That either the
evidence is sufficient, or it is not. I think the Tribunal
should confine itself to complete evidence.

MR. ALDERMAN: May it please the Tribunal, I want-

THE PRESIDENT: Yes Mr. Alderman, did you wish to add

MR. ALDERMAN: I wish to make this correction, perhaps, of
what I had said.

I did not mean to leave the implication that Mr. Messersmith
is in any way incapacitated. He is an elderly man, about 70
years old. He is on active duty in Mexico City, and the main
difficulty is that we didn't feel that we could take him
away from his duties in that post and make him undergo a
long trip at his age.

THE PRESIDENT: That's all, is it?


THE PRESIDENT: The Tribunal has considered the objection
which has been raised and, in view of the powers which the
Tribunal has under Article19 of the Charter,

                                                  [Page 214]

which provides that the Tribunal shall not be bound by
technical rules of evidence, but shall adopt and apply to
the greatest possible extent expeditious and non-technical
procedure, and shall admit any evidence which it deems to
have probative value - in view of those provisions - the
Tribunal holds that affidavits can be presented, and that in
the present case it is a proper course. The question of the
probative value of an affidavit as compared with a witness
who has been cross-examined would, of course, be considered
by the Tribunal and if, at a later stage, the Tribunal
thinks the presence of a witness is of extreme importance,
the matter can be reconsidered. And the Tribunal would add
this: That if the defence wish to put interrogatories to the
witness, they will be at liberty to do so.

MR. ALDERMAN: I offer then our document 1760-PS as exhibit
USA 57, affidavit by George S. Messersmith; and rather than
read the entire affidavit by George S. Messersmith, unless
the Court wish me to do so, I had intended to paraphrase the
substance of what it covers at various parts of the

THE PRESIDENT: The Tribunal thinks it would be better, and
that you must adhere to the rule which we have laid down,
that only what is read in the Court will form part of the

MR. ALDERMAN: I shall read then, if this Tribunal please, on
the third page of the English mimeograph; to identify it, it
is the fourth paragraph, following a list of names headed by
President Miklas of Austria and Chancellor Dollfuss:

"From the very beginnings of the Nazi Government, I was told
by both high and secondary Government officials in Germany -

THE PRESIDENT: Will you tell us again which page you are on?

MR. ALDERMAN: Page 3 of the English version, the fourth
paragraph below the list of names. There are two Messersmith
affidavits and counsel is confused between the two, I think.

   "From the very beginnings of the Nazi Government, I was
   told by both high and secondary Government officials in
   Germany that incorporation of Austria into Germany was a
   political and economic necessity, and that this
   incorporation was going to be accomplished 'by whatever
   means were necessary.' Although I cannot assign definite
   times and places, I am sure that at various times and
   places, every one of the German officials whom I have
   listed earlier in this statement told me this, with the
   exception of Schacht, von Krosigk and Krupp von Bohlen.
   I can assert that it was fully understood, by everyone
   in Germany who had any knowledge whatever of what was
   going on, that Hitler and the Nazi Government were
   irrevocably committed to this end, and the only doubt
   which ever existed in conversations or statements to me
   was how and when."

And in connection with that paragraph, I invite your
attention to the list of German officials to whom he refers
on page 2 of the affidavit; and they are listed as Hermann
Goering, General Milch, Hjalmar Schacht, Hans Frank, Wilhelm
Frick, Count Schwerin von Krosigk, Joseph Goebbels, Richard
Walter Darre, Robert Ley, Hans Heinrich Lammers, Otto
Meissner, Franz von Papen, Walther Funk, General Wilhelm
Keitel, Admiral Erich von Raeder, Admiral Karl Donitz, Dr.
Bohle, Dr. Stuckert, Dr. Krupp von Bohlen and Dr. Davidson.
Now, what the affidavit states is that he was sure that at
various times and places, everyone of those listed German
officials had made these statements to him, with the
exception of Schacht, von Krosigk and Krupp von Bohlen.
Continuing with the next paragraph :
   "At the beginnings of the Nazi regime in 1933, Germany
   was, of course, far too weak to permit any open threats
   of force against any country, such as the threats which
   the Nazis made in 1938- Instead it was the avowed and
   declared policy of the Nazi Government to accomplish the
   same results which they later accomplished, through
   force, by the methods which had proved so successful for
   them in Germany: Obtain a foothold in the Cabinet,
   particularly in the Ministry of the Interior, which
   controlled the police, and then quickly eliminate the
   opposition elements. During my stay in Austria, I was
   told on any number of occasions by
                                                  [Page 215]
   Chancellor Dollfuss, Chancellor Schuschnigg, President
   Miklas, and other high officials of the Austrian
   Government, that the German Government kept up constant
   and unceasing pressure upon the Austrian Government to
   agree to the inclusion of a number of ministers with
   Nazi orientation. The English and French ministers in
   Vienna, with whom I was in constant and close contact,
   confirmed this information through statements which they
   made to me of conversations which they had with high
   Austrian officials."

I shall read other portions of the affidavit as the
presentation proceeds. On this question of pressure used
against Austria, including terror and intimidation,
culminating in the unsuccessful "putsch" of 25th July, 1934,
to achieve their ends the Nazis used various kinds of
pressure. In the first place, they used economic pressure. A
law Of 24th March, 1933, German law, imposed a prohibitive
1,000 Reichsmark penalty on trips to Austria, and brought
great hardship to that country, which relied very heavily on
its tourist trade. For that I cite the Reichsgesetzblatt,
1933, Roman I, page 311, and ask the court to take judicial
notice of that German law.

The Nazis used propaganda and they used terroristic acts,
primarily bombings. Mr. Messersmith's affidavit, document
176o-PS, from which I have already read, goes into some
detail with respect to these outrages. I read again from
page 4 of the affidavit, the English version, the second
paragraph on the page :

   "The outrages were an almost constant occurrence, but
   there were three distinct periods during which they rose
   to a peak.
   During the first two of these periods, in mid-1933, and
   in early 1934, I was still in Berlin. However, during
   that period I was told by high Nazi officials in
   conversation with them that these waves of terror were
   being instigated and directed by them. I found no
   concealment in my conversations with high Nazi officials
   of the fact that they were responsible for these
   activities in Austria. These admissions were entirely
   consistent with the Nazi thesis that terror is
   necessary, and must be used to impose the will of the
   Party not only in Germany but in other countries. I
   recall specifically that General Milch was one of those
   who said frankly that these outrages in Austria were
   being directed by the Nazi Party, and expressed his
   concern with respect thereto and his disagreement with
   this definite policy of the Party."

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