The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: imt/tgmwc/tgmwc-09/tgmwc-09-88.06


Archive/File: imt/tgmwc/tgmwc-09/tgmwc-09-88.06
Last-Modified: 1999/12/7

THE PRESIDENT: Where is this part?

DR. STAHMER: Page 23, Mr. President.

THE PRESIDENT: Which volume?

DR. STAHMER: In the trial brief.

THE PRESIDENT: We seem only to have 22 pages in our trial
brief. Are there two volumes?

DR. STAHMER: Yes, I believe it is in the second trial brief.
The division was made to accelerate the translation. May I
continue?

  "The German Wehrmacht entered the war fully respecting
  the international conventions. No large-scale excesses by
  German soldiers were noted. Individual offences were
  severely punished. However, immediately after the
  beginning of hostilities there appeared reports and
  descriptions of atrocities committed against German
  soldiers. These reports were carefully investigated. The
  result was recorded by the German Foreign Office in
  'White Papers,' which were sent to Geneva. In this way
  the 'White Paper' came into being which deals with the
  crimes against the laws of war and humanity committed by
  the Russian soldiers."

GENERAL RUDENKO: Your Honours, defence counsel for Goering,
Dr. Stahmer, intends to submit to the Tribunal and to read
into the record excerpts from the so-called "White Book"
which was published by the Hitler Government in 1941

                                                  [Page 357]

in connection with some of the violations which supposedly
took place concerning German prisoners of war. I think that
these excerpts cannot be submitted and read into the record
here because of the following reasons:

There can only be put in evidence facts which refer to this
case; there can be submitted to the Tribunal only documents
which refer to the crimes which were perpetrated by the
Major German Criminals.

The "White Book" is a series of documents of invented data
regarding violations which were perpetrated not by the
German Fascists but by other countries. Therefore the data
contained in the "White Book" cannot serve as evidence in
this case. This conclusion is all the more justified in that
the "White Book" is a publication which served the purpose
of Fascist propaganda and which tried by inventions and
forged documents to justify or hide crimes which were
perpetrated by the Fascists. Therefore I should request the
Tribunal to refuse the reading into the record or submitting
to the Tribunal excerpts from the so-called "White Book."

THE PRESIDENT: On what theory do you justify the
presentation of this evidence, Dr. Stahmer?

DR. STAHMER: The question whether it is possible and
permissible to refer to these White Papers during this trial
as a means of evidence has been discussed repeatedly. In
particular it was the subject of debate when we were
concerned with the question of whether I should be allowed
to refer to this White Paper as evidence. So far as I know
it has been admitted as evidence for the time being. It was
already pointed out, during the debate which arose in regard
to this subject, that, as far as evidence is concerned, it
is relevant for the evaluation of the motives.

At the time I pointed out that the crimes committed against
German prisoners of war are of importance in order to
understand the measures taken on the part of Germany. One
cannot evaluate the underlying motives of the men who
committed these offences or gave orders to commit them if
one fails to consider the background against which these
deeds were enacted, or to investigate the motives which
caused them to commit these acts. And because of the
importance of the motive, in order to know about the
accusations raised by the Germans, it seems to me that this
reference to this document is absolutely necessary.

THE PRESIDENT: Have you finished?

DR. STAHMER: Yes.

THE PRESIDENT: Well, we are here to try Major War Criminals;
we are not here to try any of the signatory Powers.
Therefore you must justify the introduction of evidence
against the signatory Powers in some legal way.

DR. STAHMER: The presentation, if I may repeat that, is made
for the following reasons:

The defendants here are accused that under their leadership
crimes and offences against members of foreign armed forces
were committed which are not in accordance with the Geneva
Convention. On our part we plead that if harsh treatment and
excesses occurred on the German side, they were caused by
the fact that similar violations occurred also on the other
side, and that consequently these offences must be judged
differently and considered to be not as grave as would be
the case if the opposite side had conducted itself
correctly. Anyway, these facts are relevant for the
evaluation of the motive.

THE PRESIDENT: Are you attempting to justify the
introduction of this evidence on the ground of reprisals?

DR. STAHMER: Not only on the ground of reprisals but in
consideration of the motive for the deed.

THE PRESIDENT: You are asking us to admit a document, a
German governmental document. Now, under the Charter we are
bound to admit documents, governmental documents, and
reports of the United Nations, but it is nowhere said that
we are bound to admit, or are at liberty to admit, documents
issued

                                                  [Page 358]
by the German Government. We cannot tell whether those
documents contained facts truly stated or not.DR. STAHMER:
We have here in the document books court records of legal
inquiries. These must, in my opinion, have the same value as
evidence as official documents. They were records of court
proceedings which are quoted in the White Paper.

GENERAL RUDENKO: I should like, your Honours, to point out
only one thing here. Defence counsel Stahmer tries to submit
these documents in order, as he says, to present reasons
which would explain the crimes of the Germans. I should like
to state here that these documents, which have already been
submitted to the prosecution, and which were mentioned
yesterday here during the cross-examination of the defendant
Goering, show quite clearly that the document regarding the
crimes was drafted before the beginning of the war.

THE PRESIDENT: Dr. Stahmer, what are the dates of these
documents that you are asking us to admit?

DR. STAHMER: I have them here, individually.

(A short pause.)

Meanwhile I am having the records looked for.

MR. JUSTICE JACKSON: I suggest, your Honour, that I support
fully the objection made by General Rudenko. I had supposed
that the one thing counsel on both sides were agreed upon,
when this matter was under discussion before, was that no
reprisals against prisoners of war are tolerated. Even my
learned adversary, Dr. Exner, agreed that that is the law.

Secondly, certainly we must know what crimes are sought to
be excused. What are the motives for these crimes? Counsel
says they are without motives. Was it their motive in
shooting American or British flyers, that there were some
violations on the part of the Russians, as they claim? The
only way, it seems to me, that evidence of this character is
admissible would be to bring it under the doctrine of
reprisal very strictly by taking specific offences and
saying: "This offence we admit, but we committed it in
reprisal for certain other specified offences."

I submit that general allegations of this character and
relating to prisoners of war are admittedly inadmissible and
carry us far afield in the trial of this case.

DR. STAHMER: May I point out one more fact: For instance, I
have here a
telegram sent
by the representative of the Foreign Office of the High
Command of the Army
to the
Foreign Office, dated 12th August, 1941. In other words,
this is an official
document and until now the prosecution has submitted
official documents in
considerable numbers which have been used as evidence
against the
defendants. If
now an official document is being produced here to exonerate
the defendants
I think
that this also ought to be admitted, and to the same extent,
provided that
this is
legally permissible. The formal side of the matter is that
we have here a
telegram, as
I said, from a representative of the Foreign Office with the
Army High
Command,
i.e., of an official authority, addressed to the Foreign
Office, dated 12th
August,
1941. It says, for instance: In the captured operational
report of 13th of
last month,
10 o'clock, of the staff of the 26th Division I kilometre
West of Slastjena
in the
forest North of Opuschka it says: "The enemy left about 400
dead on the
battlefield .
. ."

THE PRESIDENT: You must not read it, as we are discussing
its admissibility.

DR. STAHMER: I beg your pardon. I misunderstood you, Mr.
President. You
asked me
what document

THE PRESIDENT: The date of the White Book.

DR. STAHMER: The date of the White Book; I see, we
misunderstood each
other. It is
Berlin, 1941.

TM PRESIDENT: That is not a date, that is a year.

DR. STAHMER: It says, "Bolshevist Crimes against the Laws of
War and
Humanity.
Documents compiled by the Foreign Office, First Volume,
Berlin,

358
22.3.46

1941." That is the name of the document; the date of its
publication is not
apparent
from the book itself. The individual documents and
preliminary proceedings
are
contained in this book, followed by a number of records
which have
individual dates.

THE PRESIDENT: Then there is nothing to show when that
document was communicated either to the Soviet Government or
when it was communicated - if it was - to Geneva or to the
Protecting Power.

DR. STAHMER: It has been forwarded to Geneva. It was duly
handed to the Red Cross in Geneva.

THE PRESIDENT: When?

DR. STAHMER: In 1941. 1 had proposed to obtain these books
from Geneva and to bring in information from the Geneva Red
Cross.

Mr. President, may I once more point out that it is an
official document published by the Foreign Office. It is a
series of reports compiled in an official publication.

THE PRESIDENT: That is not the real point that the Tribunal
is considering. The question is, how can you justify, in a
trial of the Major War Criminals of Germany, evidence
against Great Britain, or against the United States of
America, or against the U.S.S.R., or against France? If you
are going to try the actions of all those four signatory
Powers, apart from other considerations, there would be no
end to the trial at all, and their conduct has got no
relevance to the guilt of the Major War Criminals of Germany
unless it can be justified by reference to the doctrine of
reprisal, and this cannot be justified in that way. And
therefore the Tribunal considers the document is irrelevant.

DR. STAHMER: I now turn to the subject of aerial warfare,
evidence on Page 25 of my trial brief. Relevant to the
question of guilt is the question of whether the German Air
Force started to attack open cities only after the British
Air Force had carried out a great number of raids against
non-military targets.


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