The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/20

THE PRESIDENT: Are you not confusing the question of
validity with the question of justice?



DR. STAHMER : I believe that in this sphere also the defence
in justified in demanding the presentation of the White
Books, because the contents of these White Books will, to a
great extent, be of importance in the question of the war of
aggression; and to that extent also a reference to these
books has significance. Here also, I believe, it will only
be possible to make a decision after the individual
quotations from these White Books have been read.

                                                  [Page 259]

Furthermore, the presentation of the reports concerning the
breaches of the Hague Convention has been demanded. I
believe that this motion cannot be rejected with the remark
that is not concerned with the question whether such
breaches were committed on the other side, too. This fact,
in my opinion, is of importance in two ways. First of all,
to reach a just decision one has to make sure whether the
conduct on the other side was really correct and beyond
reproach, and it is furthermore of importance because it
involves the question of whether the defendants were not
resorting to retaliatory measures.

THE PRESIDENT: I think you have dealt with each topic with
the exception of Numbers 20, 23, and 28. Number 20 is Mr.
Winston Churchill's book; 23 is Tchitcherin's and 28 is
General Fuller's book. We will take those.

DR. STAHMER: Book Number 20 - Churchill's "Step by Step" -
here we are concerned with statements in which Churchill at
one point expresses his opinion as to whether England, by
the Naval Agreement of '35, had not sanctioned Germany's
renunciation of the Versailles Treaty.

Furthermore, this book is of importance as far as I can see
it now, in evaluating the extent to which England rearmed,
and finally at various points in that book there are
references to Hitler's personality.

SIR DAVID MAXWELL FYFE: I say with the greatest respect to
Dr. Stahmer that he has reinforced my point, that if Dr.
Stahmer is putting forward the thesis that in order to reach
a proper decision on the matters before the Tribunal it is
necessary to investigate whether other belligerents have
committed breaches of conventions, then, as I say, I join
issue with him in toto, I cannot add to the matter. But with
regard to Mr. Churchill, Dr. Stahmer makes three points:
one, that some passage in the book gives colour to the idea
that by the Naval Agreement the validity of the Versailles
Treaty was affected. That is a point to which there are
obviously many answers, including the facts that France was
a party to the Treaty and the United States was a party to a
treaty in the same terms. But clearly Mr. Churchill's view
expressed in a book, as to the legal effect of one treaty on
another is, in my submission, irrelevant.

Equally irrelevant is the British rearmament and the
personality of Mr. Churchill himself. And I respectfully
submit, without going into detail, that Dr. Stahmer has, by
his examples, confirmed the argument that these matters are
irrelevant to the issues before the Court. I do not wish to
say more.

THE PRESIDENT: Dr. Stahmer, the Tribunal would like to know
if you would go back from this question, or, if you like,
deal with anything you have to say about Sir David Fyfe's
observations about Mr. Churchill's book, if you prefer to do
that, do that now. But afterwards, and before you finish
your argument upon these documents, the Tribunal would like
to hear you somewhat further about Document 8 and following
up to 22, in order that you should develop your argument as
to how those documents can be relevant. For instance,
Document 10 and Document 11, the speeches and notes of
President Wilson. How can such documents as that have any
bearing upon this trial or indeed upon the validity of the
Treaty of Versailles? Take them in your own order.

DR. STAHMER: These speeches form the foundation of the
Versailles Treaty, and they are significant therefore for
the interpretation of the Treaty. Consequently it is
important to refer to the speeches, in order to judge the
contents of the Treaty and the question whether Germany
rightfully or wrongfully renounced the Treaty, that is,
whether thereby a breach of the Treaty took place, or
whether the Treaty actually gave Germany the right to

THE PRESIDENT: Is that all you wish to say about that?


THE PRESIDENT: Very well. Do you wish to say anything
further about Nos. 20, 23 or 28?

DR. STAHMER: I have spoken about 20. 23 refers to the same
questions regarding the interpretation and the contents of
the Treaty.

                                                  [Page 260]

THE PRESIDENT: The statement by the Foreign Commissar of the
USSR in 1924 - You say that it is relevant to the
interpretation of the Treaty of Versailles; and General
Fuller's book -

DR. STAHMER: General Fuller also refers in this speech to
the personality of Hitler and to the question of rearmament.

THE PRESIDENT: Yes, that concludes them.

(Consultation of the members of the Tribunal on the Bench.)

The Tribunal will consider their decision upon your
witnesses and upon your documents.

Have you anything further to say upon it?


(Professor Franz Exner, Counsel for the defendant Jodl,
approaches the lectern.)


PROFESSOR EXNER: May it please the Tribunal, I take the
liberty of adding something for the specific reason that
there is danger that evidence may be refused which is of
crucial importance for my client also. It concerns evidence
which will show that war crimes and violations of
International Law were committed by the other side too. The
prosecutor has said that this is irrelevant as far as we are
concerned here in this trial. The defence certainly does not
think of making defendants of the prosecutors, but this
point is certainly not irrelevant, specifically because:

First, it has to do with the concept of retaliation in
International Law. Retaliation justifies an action which
under normal circumstances would be illegal. That is to say,
retaliation has this significance when the individual action
is the answer to a violation of International Law committed
by the other side. If, therefore, one wants to justify one's
own action from the point of view of retaliation one can
only do so by proving that violations of law have preceded
it on the other side.

Secondly, I want to add an important point. It is well known
that this war in the beginning was conducted comparatively
humanely and -

THE PRESIDENT: Dr. Exner, you will forgive me, the argument
which you are presenting to us was fully developed by Dr.
Stahmer and will, of course, be fully considered by the

(Consultation of the members of the Tribunal on the Bench.)

Would you continue, then, Dr. Exner?

PROFESSOR EXNER: The second point is the following: It is
well known that at the beginning of this war International
Law was respected on both sides and that the war was
conducted humanely. It was only in the second phase of the
war that a terrible bitterness among the fighting powers
developed and on both sides things occurred which
International Law cannot sanction. In my opinion, it is
exceedingly important in judging a crime, whatever crime
that may be, to consider the motive. If one does not know
the motive of the action, one cannot judge the action
itself. And the bitterness which was caused, purely
psychologically, by the manner in which the war was
conducted on one side and on the other, was the motive for
actions which normally cannot be justified.

I therefore ask the Tribunal to deliberate carefully before
this evidence is declared irrelevant.

(Consultations of the members of the Tribunal on the Bench.)

DR. SIEMERS (Counsel for the defendant Raeder): I would like
to mention a matter of principle with reference to the
manner in which the relevancy of evidence is being
discussed. If I understand the Tribunal correctly, then we
should discuss today the relevancy of those witnesses and
documents which are still to be brought here. That was
exactly what was stated in the Tribunal's decision of 18

                                                  [Page 261]

Now, however, the prosecution has brought the discussion
round to documents which we already have in our hands. I ask
the Tribunal to understand me correctly if I raise a very
strong objection to this. In no case was it possible to
discuss the relevancy of the prosecution's documents weeks
before they were presented. If I have documents in my
possession, as is the case with most of the documents about
which we have spoken, then, as defendant's counsel, I must
be able to submit these documents without the consent of the

Sir David has said that the relevancy of books which are
here in the building is to be examined after we have
presented the extracts, and then the prosecution will decide
whether they are relevant. Sir David has also said that
numerous books which are here are not relevant. If this
motion by the prosecution is granted, then that is an
extraordinary limitation of the defence which I cannot
accept without protest.

The prosecution was permitted to submit documents. The Court
has declared that each letter and each document could be
presented and therefore I do not understand why we are now
arguing about the relevancy of documents which are at hand,
since, in my opinion, the Court has already said that we
will argue only about the relevancy of documents which are
still missing.

THE PRESIDENT: I thought that on behalf of the Tribunal I
had explained this morning - in answer to the argument of
Dr. Horn on behalf of the defendant Ribbentrop - that what
the Tribunal was seeking to do to-day, was to follow the
provision of Article 24 (d), which provides that the
Tribunal shall ask the prosecution and defence what
evidence, if any, they wish to submit to the Tribunal, and
the Tribunal shall then rule on the admissibility of any
such evidence; and I pointed out that the reason why the
defence had been to some extent treated in a different way
from the prosecution was because, in the case of the
defence, the Tribunal has to find all the witnesses and
bring them here, and the Tribunal has, in many instances, to
find the documents or supply the documents, and therefore it
is not reasonable, and it also is not in accordance with the
Charter, that the Tribunal should be asked to bring
witnesses or documents here, until it has heard argument
upon the admissibility of the witness or the document. And
that is what it is doing.

I thought that I had fully explained that in answer to Dr.
Horn's argument.

It is perfectly true that you cannot rule finally on the
admissibility of a document or the admissibility of a
witness until you have actually heard the passage in the
document which is relied upon or the questions put to the
witness which are said to be relevant or irrelevant.
Therefore, the final determination upon the question of
admissibility will be when the witness is put in the witness-
box and asked questions, or the document or the passage from
the document is actually produced.

DR. SIEMERS: Yes. Excuse me, but I believe that this still
does not answer one point.

It is undoubtedly true that we are arguing here about
documents and witnesses not yet at our disposal. But it is a
different thing in the case of those documents which are
already here in this building and which are at our disposal
as defence counsel. To give an example: The White Books
which Sir David has mentioned are here; why should we argue
now about the relevance of this evidence? This question has
nothing to do with the delay of the Trial, nor with the
procurement of documents.

THE PRESIDENT: Do you wish to say anything, General Rudenko?

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