The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/09/18

                                                  [PAGE 396]

TWENTIETH DAY

FRIDAY, 14th DECEMBER, 1945

DR. KAUFFMANN (Counsel for the defendant Kaltenbrunner): I
permit myself to present two points to the Court with regard
to yesterday's and future presentation of evidence,
particularly with respect to the section on "Crimes against
Humanity ".

First, I should like to have stricken from the record
yesterday's affidavit of the witness Pfaffenberger.
Eventually one will have to cross-examine the witness in
person. His testimony is fragmentary in most important
points. It cannot be seen whether in many cases it is a
matter of his personal observations or of assertions from
hearsay. From this it is all too easy to draw false
conclusions. The witness did not say that the Camp Commander
Koch, along with his inhuman wife, was condemned to death by
an S.S. court precisely because of these occurrences among
other things. It is possible to ascertain the entire truth
by questioning the witness in a later part of the trial.
Until then every one, judges, defence counsel and
prosecution, is impressed by this terrible testimony.

The content of this testimony is so terrible and so
degrading for the human spirit that one would like to turn
one's eyes and ears away from it. In the meantime such
statements make their way through the Press of the whole
world. Civilisation is justifiably indignant. The
consequences of such premature statements are not to be
calculated. The Prosecuting Attorney well recognises the
significance of this testimony and exposed the sorry
documents yesterday in court.

If it is only after weeks or months that such perverted
testimony can be set aright, the previous effects of it can
never be eliminated entirely. Truth suffers and justice is
endangered. According to the 19th Article in the Charter,
such a condition should not have been brought about.

Secondly, I should, therefore, like to suggest at this point
in the procedure, that we do not read the testimony of
witnesses who live in Germany and whose appearance here is,
therefore, possible; because at this point of the procedure
accusations are involved, the subject of which is even more
terrible than the accusations referring to aims of
aggression, since it is a question here of the tortured life
and of the death of human beings.

At the beginning of this trial the Court refused to hear the
testimony of the witness Schuschnigg, and it is my opinion
that what was valid then should be all the more valid at
this point in the trial.

I should like to emphasise by suggestion particularly as
regards the defendant Kaltenbrunner himself, since it was
not until the spring of 1943 that he became Chief of the
Reich Main Security Office and since then, according to the
testimony of the defence, many, if not all, of his
signatures were forged, and the entire executive function of
the administration of

                                                  [Page 397]

camps and happenings connected with them lay exclusively in
Himmler's hands. That I hope to be able to prove at a later
date. I have mentioned that in order to justify my next
suggestion.

THE PRESIDENT: The Tribunal would like to hear counsel for
the Chief Prosecutor of the United States.

MR. JUSTICE JACKSON: May it please the Tribunal, Mr. Dodd,
who had charge of the matter which is under discussion, left
for the United States yesterday, and I shall have to
substitute for him as best I may.

This Tribunal sits under a Charter which recognises the
impossibility of covering a decade of time, a continent of
space, a million acts, by ordinary rules of proof, and at
the same time finishing this case within the lives of living
men. We do not want to have a trial here, that, like the
trial of Warren Hastings, lasted seven years. Therefore, the
Charter set up only two standards by which, I submit, any
evidence may be rejected. The first is that the evidence
must be relevant to the issue. The second is that it must
have some probative value. That was made mandatory upon this
Tribunal in Article 19, because of the difficulty of ever
trying this case if we used the technical rules of Common
Law.

One of the reasons this was constituted as a military
tribunal, instead of an ordinary Court of Law, was to avoid
the precedent-creating effect of what is done here on our
own law and the precedent control which would exist if this
were an ordinary judicial body.

Article 19 provides that the Tribunal should 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. That was made mandatory, that it shall
admit any evidence which it deems to have probative value.
The purpose of that provision, your Honours, I may say, was
this: that the whole controversy in this case - and we have
no doubt that there is room for controversy - should be
centred upon the value of evidence and not on its
admissibility.

We have no jury. There is no occasion for applying jury
rules. Therefore, when a piece of evidence is offered, there
are two questions which arise: The first is, does it have
probative value? If it has no probative value, then it
should not encumber the records, of course. The second is,
does it have relevancy? If it has not, of course it should
not come in.

The evidence in question has relevance. No one questions
that, no one can say that an affidavit, duly sworn, does not
have some probative value. What probative value it has, the
weight of it, should be determined on the submission of the
case. That is to say, if a witness has made a statement in
an affidavit, and it is denied by Kaltenbrunner, and you
believe that the denial has weight and credibility, then, of
course, the affidavit should not be considered in the final
consideration of the case. But we are dealing here with
events that took place over great periods of time and great
distances. We are dealing with witnesses widely scattered
and a situation where communications are almost at a
standstill.

If this affidavit stands at the end of this case undenied,
unchallenged, it is not, then, beyond belief that you would
give it value and weight. An affidavit might bear internal
evidence that it lacked credibility, such as evidence where
the witness was talking of something of which he had no
personal

                                                  [Page 398]

knowledge. I do not say that every affidavit that comes
along has probative value just because it is sworn to. But
it seems to me that, if we are to make progress with this
case, this simple system envisioned by this Charter, which
was the subject of long consideration, must be followed;
that if when a piece of evidence is presented, even though
it does not comply with technical rules governing judicial
procedure, it is something which has probative value in the
ordinary daily concerns of life, it should be admitted. If
it stands undenied at the close of the case, as many of
these things will, then, of course, there is no issue about
it, and it saves the calling of witnesses, which, as we have
already seen, will take an indefinite period of time. I may
say that the testimony of the witness Lahousen, which took
nearly two days, could have been put in, in this Court, in
15 minutes in affidavit form, and all that was essential to
it could have been placed before us; and if it were to be
denied you could then have determined its weight.

We want to adhere to this Charter. I submit, it is no reason
for deviating from the Charter that an affidavit recites
horrors. I should have thought that the world could not be
more shocked by recitals of horrors in affidavits than it
has been in the documents that have proceeded from sources
of the enemy itself. There is no reason in that for
departing from the plain principles of the Charter.

I think the question of orderly procedure and the question
of time are both involved in this. I think that the Tribunal
should receive affidavits, and we have prepared them - we
hope carefully, we hope fairly - to prevent a great many
things that would take days and days of proof. I may say
that this ruling is more important in subsequent stages of
this case than it is on this particular affidavit.

There is another reason, perhaps. We have some situations in
which a member of an accused organisation, who is directly
hostile to our position because the accusation would reach
him within the accused class, has made an affidavit or
affidavits, which constitute admissions against interest;
but on some other issue he makes statements which we believe
are untrue and incredible, and we do not wish to vouch for
his general credibility by calling him as a witness, but we
wish to avail ourselves of his admission. We have to make
our proof largely from enemy sources. All this proof, and
every witness, eight months ago were in the hands of the
enemy. We have to make our proof from them. God alone knows
how much proof there is in this world that we have not been
able to reach. We submit that the orderly procedure here is
to abide by this Charter and admit these affidavits. If they
stand unquestioned at the end of the case, there is no issue
about them. If they are questioned, then their weight is a
matter which you would determine on final submission.

THE PRESIDENT: Mr. Justice Jackson, I have three questions I
should like to ask you. The first is: where is
Pfaffenberger?

MR. JUSTICE JACKSON: That I cannot answer at the moment, but
I will get an answer as quickly as I can. It is unknown to
me at the moment. If we are able to ascertain, I will inform
you at the conclusion of the noon recess.

THE PRESIDENT: The second point to which I wish to draw your
attention is Article 16 (e) of the Charter, which
contemplates cross-examination of witnesses by the
defendants. The only reason why it is thought that witnesses
who are available should not give evidence by affidavit is
because it denies to the defence the opportunity of cross-
examining them.

                                                  [Page 399]

MR. JUSTICE JACKSON: I think that this provision means just
exactly what it says. If we call a witness, they have the
right of cross-examination. If he is not called, they have
the right to call him, if he is available, as their witness,
but not, of course, the right of cross-examination. The
provision itself, if your Honour notices, reads that they
have the right to cross-examine any witness called by the
prosecution, but that does not abrogate or affect Article 19
- that we may obtain and produce any probative evidence in
such manner as will expedite the trial.

THE PRESIDENT: Then the next point to which I wish to draw
your attention to is Article 17 (a). As I understood it, you
were arguing that it was mandatory upon the Tribunal to
consider any evidence which was relevant. Therefore, I draw
your attention to Article 117 (a) which, gives the Tribunal
power to summon witnesses to the trial.

MR. JUSTICE JACKSON: That is right. I think there is no
conflict in that whatever. The powers of the Tribunal to
summon witnesses, and to put questions to them, was
introduced into this Charter through the continental systems
of jurisprudence. Usually there are not Tribunal witnesses
in the States. Witnesses are called only by one of the
parties, but it was suggested by the continental scholars
that in this kind of case, since we were utilising a mixture
of the two procedures, the Tribunal itself should have the
right to do several things. One is to summon witnesses, to
require their attendance, and to put questions to them. I
submit that this witness, whose affidavit has been received,
can be called, if we can find him, by the Tribunal and
questioned.

The next provision - and it bears on the spirit of this-of
Article 17 is that the Tribunal has the right to interrogate
any defendant. Of course, under our system of jurisprudence
the Tribunal would have no such right, because the defendant
has the unqualified right to refrain from being a witness;
but, in deference again to the continental system, the
Tribunal was given the right to interrogate any defendant;
and his immunities, which he would have under the
Constitution of the United States, if he were being tried
under our system, were taken away.

I submit that the perfect consistency in those provisions
empowers the Tribunal on its own motion (Article 17) to
summon witnesses, to supplement anything that is offered, to
put any questions to witnesses, and to any defendant.

If any witness is called, the right of cross-examination
cannot be denied, but that does not abrogate Article 19,
which was intended to enable us to put our case before the
Tribunal, so that the issue would then be drawn by the
defendants and the weight of what we offer determined on
final submission.

THE PRESIDENT: Lastly, there is Article 17 (e), which I
suppose, in your submission, would entitle the Tribunal, if
they thought right, after receiving the affidavit, to take
the evidence of Pfaffenberger on commission.

MR. JUSTICE JACKSON: Yes, I think it would, your Honour. I
may say, in reference to that section, and it may perhaps be
surprising to those accustomed to our system of
jurisprudence - that it was one of the most controversial
issues we had in the framing of this Charter. We had in mind
the authorisation of what we call "Masters" to go into
various localities, perhaps, and take testimony, not knowing
what might be necessary. Our practice, however,

                                                  [Page 400]

of appointing "Masters in Equity" to take testimony and make
recommendations was not acceptable to the continental
system, and we finally compromised on this provision which
authorises the taking of testimony by commissions.

THE PRESIDENT: Thank you.

GENERAL RUDENKO: Your Honours, I have come forward after my
colleague, Mr. Jackson, in order to make my own statement,
inasmuch as the petition of the defence is fundamentally
incorrect from my point of view and cannot be complied with.

We are submitting our objections for your examination. I
fully share the viewpoint exposed here by the Chief
Prosecutor of the U.S.A., Mr. Jackson. I should like, your
Honours, to point out the following circumstances. The
defence counsel, in his petition, raises the question
whether the prosecution should refer to or publish documents
in connection with affidavits from persons residing in
Germany. A statement of this nature is completely out of
order since, as is known, the defendants committed the
greater part of their atrocities in every country in Europe,
and it will be readily understood that the witnesses of
these atrocities live in different parts of these countries,
and it is essential that the prosecution have recourse to
the testimony of such persons, whether the testimonies be
written or oral. Your Honours, we have entered a stage in
the Trial when we shall have to set forth the atrocities
connected with so-called War Crimes and Crimes Against
Humanity, atrocities committed by the defendants over
extensive areas. We shall show you, your Honours, in
evidence, documents originating from the defendants
themselves or from persons who had suffered at the hands of
the war criminals. And it would be impossible to summon to
the Trial all these witnesses in order that they might give
their evidence orally. It is essential to have affidavits
and written testimonies from the witnesses.

As his Honour the President remarked, Article 17 determines
the power of summoning witnesses to the Trial. That is
correct; Article 17 determines this, but it is impossible to
summon to the Trial all such witnesses who could give
affidavits on the crimes committed by the defendants.
Therefore, your Honours, I should like to refer to Article
19 of the Charter, reading as follows:

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

I would also ask your Honours to proceed upon this
regulation which definitely admits, as evidence, written
affidavits of witnesses. This, I wish to say, is my
statement, which supplements the statement made by Mr.
Jackson.

MR. ROBERTS: May it please the Tribunal, as far as the
British Delegation is concerned, they desire to support what
the American Chief Prosecutor has said, and we do not feel
we can usefully add anything.

THE PRESIDENT (To M. Faure of the French Delegation): Do you
wish to add anything?

M. FAURE:  Mr. President, I wish simply to inform the Court
that the French Prosecution is entirely in accord with the
remarks which were made by the American
and the Soviet prosecutors.

                                                  [Page 401]

I think, as the representative of the American prosecution
said, that it is not possible to settle the questions of
evidence in this trial solely by the practice of oral
testimony in the courtroom, for under these conditions it
might be opportune to call to the witness stand - a step
which is obviously impossible - all the inhabitants of the
territories who have been involved, and which have been
occupied. The defence will have every opportunity to discuss
later on the documents which have been presented by the
prosecution and, notably, the written testimony.

THE PRESIDENT: I do not think that counsel for Kaltenbrunner
was suggesting that every witness must be called, but that
witnesses who were in Germany and available should be called
and that their evidence should not be given by affidavit.

M. FAURE: The defence has a right to call them as witnesses
if it desires to hear them.

DR. KAUFFMANN (Counsel for defendant Kaltenbrunner): Excuse
me if I add just a few words to this important question.
Those who have just spoken have said that one of the main
principles of this trial is the circumstance that the trial
should proceed speedily. That is also expressed in Article
19 of the Charter. No one can more hope that this principle
be carried through than we defence counsel ourselves; but it
is nevertheless my opinion that one principle, which is the
highest that mankind knows, must not suffer in the interests
of speed, and that principle is the principle of truth; and,
if it were clearly a possibility that an over-hasty trial
might give offence to truth, then the formal methods of
procedure must step into the background. There are in
mankind principles that are unspoken and that do not have to
be spoken.


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