The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/09/18

With the permission of your Honours, I should like to
comment further upon some parts of this memorandum. First, I
invite your attention to solution (a). This solution would
have called for German infiltration into Moravia and the
forcible removal of the Czechs from that area to Bohemia. As
your Honours know, Moravia lies between Bohemia and
Slovakia. Thus solution (a) would have involved the erection
of a German State between Bohemia and Slovakia, and would
have prevented effective intercommunications between the
Czechs and the Slovaks. In this manner, the historic desire
for unity of these two groups of peace-loving people and the
continued existence of their Czechoslovakian State would
have been frustrated. Solution (a), it may be noted, was
rejected because the surviving Czechs, even though
compressed into a "residual Bohemia" would have remained to
plague the conspirators.

Solution (b), which involved the forcible deportation of all
Czechs, was rejected, not because its terms were deemed too
drastic but rather because a more speedy resolution of the
problem was desired.

Solution (c), as shown in the exhibit, was regarded as the
most desirable, and was adopted. This solution first
provided for the assimilation of about one half of the
Czechs. This meant two things: (a) enforced Germanisation
for those who were deemed racially qualified and (b)
deportation to slave labour in Germany for others.
"Increased employment of Czechs in the Reich territory," as
stated in the exhibit meant, in reality, slave labour in
Germany.

Solution (c) further provided for the elimination and
deportation "by all sorts of methods" of the other half of
the Czech population, particularly the intellectuals and
those who did not meet the racial standards of the
conspirators. Intellectuals everywhere were an anathema to
the Nazi conspirators, and the Czech intellectuals were no
exception. Indeed, the Czech intellectuals, as the
conspirators well knew, had a conspicuous record of
gallantry, self-sacrifice, and resistance to the Nazi
ideology. They were, therefore, to be exterminated. As will
be shown in other connections, that section of the top
secret report which stated "elements which counteract the
planned Germanisation are to be handled roughly and
eliminated " meant that intellectuals and other dissident
elements were either to be thrown into concentration camps
or immediately exterminated.

                                                  [Page 438]

In short, the provisions of solution (c) were simply a
practical application of the conspirators' philosophy as
expressed in Himmler's speech, part of which we have quoted
in L-70, already presented in evidence as Exhibit USA 3o8.
Himmler said that "Either we win over any good blood that we
can use for ourselves . or we destroy this blood."

I now turn briefly to the conspirators' programme of
spoliation and Germanisation in the Western occupied
countries. Evidence which will be presented at a later stage
of this proceeding will show how the conspirators sought to
Germanise the Western occupied countries; how they stripped
the conquered countries in the West of food and raw
materials, leaving to them scarcely enough to maintain a
bare existence; how they compelled local industry and
agriculture to satisfy the inordinate wants of the German
civilian population and the Wehrmacht; and finally, how the
spoliation in the Western occupied countries was aided and
abetted by excessive occupation charges, compulsory and
fraudulent clearing arrangements, and confiscation of their
gold and foreign exchange. The evidence concerning these
matters, which will be presented in great detail by the
prosecutor for the Republic of France, is so overwhelming
that the inference is inescapable that the conspirators'
acts were committed according to plan.

However, it will not be until after the Christmas recess
that the evidence concerning the execution of the
conspirators' plans in the West will be presented to this
Tribunal. Accordingly, by way of illustration, and for the
purpose of showing in this presentation that the
conspirators' plans embraced the occupied Western countries
as well as the East, we now offer in evidence a single
exhibit on this aspect of the case, Document R-114, which is
Exhibit USA 314. This document was obtained from the U.S.
Counter-Intelligence Branch. This exhibit consists of a
memorandum dated 7th August, 1942, and a memorandum dated
29th August, 1942, from Himmler's personal files. The former
memorandum deals with a conference of S.S. officers, and
bears the title "General Directions for the Treatment of
Deported Alsatians". The latter memorandum is marked secret
and is entitled "Shifting of Alsatians into Germany Proper".
The memoranda comprising this exhibit show that plans were
made and partially executed to remove from Alsace all
elements which were hostile to the conspirators, and to
Germanise the province. I quote from Page 1, Lines 21 to 31
of the English text entitled "General Directions for the
Treatment of Deported Alsatians". These extracts contained
in the German text at Page 1, the last eight lines, and Page
2, Lines 1 to 5. I now quote:-

    "The first expulsion action was carried out in Alsace
    in the period from July to December, 1940; in the
    course of it 105,000 persons were either expelled or
    prevented from returning. They were in the main Jews,
    gypsies and other foreign racial elements, criminals,
    asocial and incurably insane persons, and in addition
    Frenchmen and Francophiles. The patois-speaking
    population was combed out by this series of
    deportations in the same way as the other Alsatians.
    
    Referring to the permission the Fuehrer had given him
    to cleanse Alsace of all foreign, sick or unreliable
    elements, Gauleiter Wagner has recently pointed out the
    political necessity of new deportations (zweite
    Aussiedlungsaktion) which are to be prepared as soon as
    possible."

I should like your Honours to permit me to defer the
remainder of this presentation until Monday. Mr. Justice
Jackson would like to make a few remarks to the Tribunal.

                                                  [Page 439]

MR. JUSTICE JACKSON: May it please the Tribunal, I wish to
bring to the attention of the Tribunal and of the defence
counsel some matters concerning the case as it will take its
course next week, in the belief that it will result in
expediting our procedure if over the week-end our programme
can be considered.

Captain Harris's presentation will take a little longer on
Monday, and when it has concluded, the presentation by the
United States will have reached that part of the indictment
which seeks declaratory judgment of this Tribunal that six
of the organisations named therein are criminal
organisations. They effect such a finding only that they
they constitute a basis for prosecution against individual
members in other courts than this, proceedings in which
every defence will be open to an accused individual, except
that he may not deny the findings made by this Tribunal as
to the character of the organisation of which he was a
member.

The United States desires to offer this evidence under
conditions which will save the time of the Tribunal and
advance the prosecution as rapidly as possible so that
United States personnel can be released.

We also desire defendants' counsel to have before them as
much as possible of our evidence against organisations
before the Christmas recess, so that they may use that
recess time to examine it and to prepare their defences, and
that we may be spared any further applications for delay for
that purpose.

The substance of our proposal is that all of the ultimate
questions on this branch of the case be reserved for
consideration after the evidence is before the Tribunal. The
real question we submit is not whether to admit the
evidence. The real question is its value and its legal
consequences under the provisions of this Charter. All of
the evidence which we will tender will be tendered in the
belief that it cannot be denied to have some probative
value, and that it is relevant to the charges made in the
Indictment. And those are the grounds upon which the Charter
authorises a rejection of evidence.

At the time we seek no advantage from this suggestion except
the advantage of timesaving to the Tribunal and to ourselves
to get as much of the case as possible in the hands of the
defendants before the Christmas recess, and to urge the
ultimate issues only when they can be intelligibly argued
and understood on the basis of a real record, instead of on
assumptions and hypothetical statements of fact.

In offering this evidence as to the organisations,
therefore, we propose to stipulate as follows:-

Every objection of any character to any item of the evidence
offered by the United States as against these organisations,
may be deemed to be reserved and fully available to defence
counsel at any time before the close of the United States
case, with the same effect as if the objection had been made
When the evidence was offered. All evidence on this subject
shall remain subject to a continuing power of the Tribunal,
on motion of any counsel or on its own motion, to strike,
unprejudiced by the absence of objection. Every question as
to the effect of the evidence shall be considered open and
unprejudiced by the fact that it has been received without
objection.

Now we recognise the adherent controversial character of the
issues which may be raised concerning this branch of the
case. What this evidence proves, what organisations it is
sufficient to condemn, and bow the Charter applies to it are
questions capable of debate, and which we are quite ready to
argue when it can be done in orderly and intelligible
fashion. We had expected to

                                                  [Page 440]

do it in a final summary, but we will do it at any time
suggested by the Tribunal, after there is a record on which
to found the argument, and we are willing to do it either
before or after the defendants take up the case. But we do
suggest that if it is done step by step as the evidence is
produced, and on questions of admissibility, it will be
disorderly and time consuming. Piecemeal argument will
consume time by requiring counsel on both sides either to
recite evidence that is already in the case or to speculate
as to evidence that is not yet in, to resort to hypothetical
cases, and to do it over and over again to each separate
objection. It will also be disorderly because of our plan of
presentation.

Questions which relate to these organisations go to the very
basis of the proposal made by President Roosevelt to the
Yalta Conference, agreement upon which was the basis for
this proceeding. The United States would not have
participated in this kind of determination of question of
guilt, but for this or some equivalent plan of reaching
thousands of others, who, if less conspicuous, are just as
guilty of these crimes as the men in the dock. Because of
participation in the framing of the Charter, and knowledge
of the problem it was designed to solve, I shall expect to
reach the legal issues involved in these questions.

The evidence, however, will be presented by the lawyers who
have specialised in the search for the arrangement of
evidence on a particular and limited charge or indictment.
Piecemeal argument, therefore, would not be orderly but
would be repetitious, incomplete, poorly organised, and of
little help to the Tribunal. The issues deserve careful,
prepared presentation of the contentions on both sides.

We will ask, then, for these conditions, which we think
protect everybody's rights and enable the defence, as well
as ourselves, to make a better presentation of their
questions - because they will have time to prepare them-to
lay before the Tribunal, as rapidly as possible next week
and as uninterruptedly as possible, the evidence which bears
upon the accusations against the organisations.

THE PRESIDENT: Mr. Justice Jackson, have you yet
communicated that to the defendants' counsel in writing, or
not?

MR. JUSTICE  JACKSON:  I have not communicated it, unless it
has been sent to the Information Centre since noon.

THE PRESIDENT: I think, perhaps, it might be convenient that
you should state what you have stated to us, as to
objections to the evidence, in writing, so that they may
thoroughly understand it.

MR. JUSTICE JACKSON: I have prepared to do that and to
supply sufficient copies for members of the Tribunal and for
all defence counsel.

THE PRESIDENT: Yes.

DR. GEORG BOEHM: I represent the members of the S.A. who
have reported themselves to the Tribunal for examination. I
understood the statements made by Mr. Justice Jackson only
partially. As counsel I have no one who can supply me with
information and I cannot under any circumstances agree to
reply, in the course of this trial, to speeches that I do
not understand or which are presented to me in such a way
that I am not in a position to get information.

                                                  [Page 441]

I should like to ask first that care be taken that I receive
a German translation of the statements which the prosecution
has made in regard to the future course of the trial, so
that I can reply to these statements. I do not represent
only one person in this trial but millions of people, people
who will make all sorts of accusations, in part perhaps even
justified accusations against me, once this trial has ended.
The responsibility, which I, as well as those colleagues of
mine who represent organisations have, is terribly great. I
should therefore like to request, as a matter of principle,
that everything which is presented in this trial be
submitted to me in the German language, because I am not in
a position to have translated into German from day to day
whole volumes of documents which could easily be given to me
in the original German. This circumstance makes it
dreadfully hard for me, as well as for a number of my
colleagues, to follow the trial at all.

In the previous sessions I found little that I could
consider incriminatory evidence against the organisations.
Since however, according to today's statements, the evidence
against the organisations is to be presented in the future,
I should like to ask urgently, if we are to remain as
counsel for these organisations, that the trial be ordered
in such a way that, in regard to technical matters too, we
shall be in a position to carry on the defence in a
responsible manner.

THE PRESIDENT: As you know or have been told, only those
parts of those documents which are read before the Tribunal
are treated as being in evidence and, therefore, you hear
through your earphones everything that is in evidence read
to you in German. You know, also, that there are two copies
of the documents in your Information Centre which are in
German. So much for that. That has been the procedure up to
now.

In order to meet the legitimate wishes of German counsel,
the proposal which Mr. Justice Jackson has just made is
perfectly simple, as I understand it, and it is this:

That the question of the criminality of these organisations
should not be argued before the evidence is put in; that the
United States counsel should put in their evidence first,
and that they hope to put the majority of that evidence in
before the Christmas recess, but that the German counsel,
defendants' counsel, shall be at liberty at any time, up to
the time the United States case is finished, to make
objection to any part of the evidence on these criminal
organisations. Is that not clear?

DR. GEORG BOEHM: Yes, that is fairly simple.

THE PRESIDENT:  Have you any objection to that procedure?

DR. GEORG BOEHM: I am rather of the opinion that it is
highly inadequate. I have had no opportunity yet to get into
my hands either of those two copies, which are supposed to
lie downstairs in Room 54. It may be that two copies are not
sufficient for the purposes of 25 lawyers, especially since
these copies in German are placed in Room 54 at 10.30 in the
morning, while the session has already started at 10.00 in
the morning. It would also not suffice, if these two copies
for 25 people were to be placed there the day before,
because it is not possible in this short period of time for
all 25 of us to make satisfactory use of these two copies. I
should therefore like to request just how the prosecution
will do that, or just how it can do it I cannot say that
arrangements be made so that we are in position to know at
the proper


                                                  [Page 442]

time and, I emphasise this once more, in the German
language, everything that the prosecution desires to use, in
order that we can act, so that our work will be of use to
the Court.

THE PRESIDENT: What you have just stated is a general
objection to the procedure which has been adopted up to now
and has nothing to do with the procedure which has been
suggested by Mr. Justice Jackson with reference to these
criminal organisations. His suggestion was that argument on
the law of the criminal issue or the criminal nature of
these organisations should be postponed until the evidence
was put in, and that the right of counsel for the defence
should be to make objection at any stage or, rather, to
defer their, objections until the evidence had been put in,
and it was hoped that the evidence would be completed or
nearly completed by the Christmas recess. What you say about
the general procedure may be considered by the Tribunal.

So far as the particular question is concerned, namely, the
question of the procedure suggested by Mr. Justice Jackson,
have you any objection to that?

DR. GEORG BOEHM: I will object only if through this
proceeding - and for this purpose I reserve for myself all
liberties and all rights in the interest of my large
clientele - I am in any way handicapped or hindered in
representing the interests of so many people before the
Tribunal.

THE PRESIDENT: We are aware of that fact, but that does not
seem to be material to the question whether the legal
argument should be deferred until after the evidence is
presented. The fact that you have millions of people to
represent has nothing to do with the question whether the
legal argument shall take place before or in the middle of
or at the end of the presentation of the evidence. What I am
asking you is: "Have you any objection to the legal argument
taking place at the end of the presentation of the
evidence?"

DR. GEORG BOEHM: I have no objection to these suggestions in
so far as my defence is not hindered in any way thereby.

THE PRESIDENT: The Tribunal will now adjourn.

(The Tribunal adjourned until 1000 hours on 17th December, 1945.)


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