The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                   [Page 41]

               SATURDAY, 8th JUNE, 1946

THE MARSHAL: May it please the Tribunal, the report is made
that the defendants Hess and Raeder are absent.

THE PRESIDENT: With reference to the applications for
witnesses and documents that were made the other day in
court, I will take them in the order in which they were
dealt with in court.

The first application is the application of Kaltenbrunner
and the three witnesses which he asks for are allowed:
Tiefenbacher, Kandruth and Strupp.

The application of the defendant Schirach is rejected.

The applications of the defendants Hess and Frank for
General Donovan are rejected.

The applications of the defendants Speer and Keitel are
granted, and the application of the defendant Jodl for an
affidavit I think was granted yesterday.

The application for the defendant Goering for two witnesses,
Stuckhardt and Burmath, is granted, but on the condition
that three witnesses only may be called upon the subject

With reference to the application of the defendant Hess, the
Tribunal orders as follows:

The affidavit of the former Ambassador Gans of the 17th of
May, 1946, is rejected on the ground that it is not in
accordance with the permission given on 14th May, 1946, but
purports to incorporate not merely the substance but also
the form of the secret treaties, and the form embraced in
the affidavit is not identified as being correct either by a
person who made the copies or by one who compared them with
the originals. Such copies cannot be received in evidence,
and the Tribunal has twice ruled to this effect.

The matter of importance to the issues before the Tribunal
is not the form of the treaties, but their contents, and
evidence of their contents is already before the Tribunal by
the testimony of three witnesses. The admission of this
affidavit would add nothing to the proof before the
Tribunal. The same is true of the proposal to call Gaus as a
witness, who would only support evidence as to the contents
of the treaties which has not been contradicted.

The motion of the 23rd of May, 1946, to reconsider the
Tribunal's former decision, and the motion of the 24th of
May, 1946, to call Gans as a witness, are accordingly

There is one other matter with which the Tribunal proposes
to deal, and it is this: In future, counsel for the
organizations which the prosecution has asked the Tribunal
to declare to be criminal will not be permitted to examine
or to cross-examine any witnesses other than the defendants
in this court. If they wish to examine or to cross-examine
those witnesses, they must call them before the commissions
which are now sitting for the taking of evidence on the
questions with which the organizations are concerned.

That is all.

DR. KUBUSCHOK (counsel for defendant von Papen): I should
like to voice a further request for the case of von Papen. I
submitted a written request on 6th June. This was discussed
with the prosecution, and the General Secretary has
instructed me to bring this matter to the attention of the

                                                   [Page 42]

Prince Erbach-Schonberg has filled in an interrogatory. His
answers, however, are partially incomplete and sometimes
misleading, and it is therefore necessary to supplement
them. I suggest that Prince Erbach - who is in Gmunden in
the American-occupied zone of Austria - be brought here and
interrogated, outside this Court but in the presence of the
prosecution, to supplement this interrogatory.

Some days ago my colleague received a letter from Graf Feil,
who is living in Bad Ischl, which is also in the
American-occupied zone of Austria, not far from Gmunden, the
residence of Prince Erbach. In this letter he has made
detailed statements about the contacts which the defendant
von Papen had with the circle of conspirators involved in
the attempted assassination of 20th July.

Since this question was raised by the witness Gisevius, the
defence feels itself bound to discuss it in the presentation
of evidence, although it attaches no great importance to it.
This evidence can probably be produced by means of an

At the same time, I ask that Graf Feil be brought here with
Prince Erbach so that he can depose an affidavit in the
presence of the prosecution. It is absolutely essential to
bring both these witnesses here, because the case of von
Papen is imminent and we could not take care of these
matters by correspondence.

THE PRESIDENT: Dr. Kubuschok, will you draw our attention to
the particular points in which you say that the
interrogatory of Prince Erbach-Schonberg is incomplete or

DR. KUBUSCHOK: In connection with one of the preceding
questions of this interrogatory, Prince Erbach answered that
the defendant von Papen had desired to achieve his
assignment by peaceful means rather than by the use of
force. The witness answered a later question as to whether
the defendant von Papen acted in accordance with these
political principles, as follows: "As long as I was there, I
had the impression that the defendant von Papen acted in
accordance with these principles, which meant the
establishment of relations by peaceful means rather than by
the use of force."

This last statement contradicts the first half of the
answer. Apart from that, this latter sentence scarcely
corresponds to the facts.

THE PRESIDENT: Are you saying that that answer is incomplete
or contradictory?

DR. KUBUSCHOK: There is a contradiction. "Rather than by
force" contradicts the first half of his reply, that he
acted according to these principles. These questions -

THE PRESIDENT: The answer that I have got is: "As long as I
was there I had the impression that the defendant von Papen
acted according to this policy of establishing relations
through peaceful means rather than force."

There is nothing contradictory in that, in English.

DR. KUBUSCHOK: The word "rather" disturbs me and is a
contradiction. It does not mean the same thing, namely, that
he wanted only to bring about connections in a peaceful
manner and not by force.

THE PRESIDENT: It means the same thing. It means that he
wanted to establish the relations by peaceful means rather
than with forceful means. "Not ,by force," he means.

DR. KUBUSCHOK: This version might lead to the assumption
that the defendant von Papen did not even consider peaceful
means. We want to prove, in accordance with the foregoing
sentence, that he rejected all means other than peaceful
means from the beginning and never introduced them into his
discussions. However, if the High Tribunal interprets the
interrogatory in the manner which has just been stated, then
I have no further reason to supplement it.

                                                   [Page 43]

THE PRESIDENT: It could not mean anything else in English. I
do not know what it could mean in German.

DR. KUBUSCHOK: In the German version it is translated

  "I would prefer peaceful means to force; as a last resort
  other than peaceful means might have to be considered."

That would be the interpretation placed on the German

We want to establish clearly the fact that none other than
peaceful methods were ever considered.

SIR DAVID MAXWELL FYFE: To save any trouble, I should like
to assure the Tribunal that the prosecution accepted the
answer in the sense which your Lordship has just put. We
should not suggest for a moment that Prince Erbach would
make any other answer than in the sense the Tribunal has
accepted it.

THE PRESIDENT: Perhaps a way of meeting the difficulty would
be if you would agree to read the words in the sense "and
not by force."

SIR DAVID MAXWELL FYFE: If your Lordship pleases.


DR. KUBUSCHOK: Then, of course, I quite agree, and I should
like to have the Tribunal's decision as to whether Graf Feil
is to be brought here to depose an affidavit.

THE PRESIDENT: You mean the other witness?

DR. KUBUSCHOK: The second witness, Graf Feil, who wrote the
letter which we wish to submit to the High Tribunal in the
form of an affidavit.

THE PRESIDENT: We will consider that when we have heard Sir

Are there any other inconsistencies or contradictions to
which you wish to draw our attention in the Prince's


THE PRESIDENT: Has the letter of Graf Feil been translated?

DR. KUBUSCHOK: No, it has not yet been translated, but it is
an ordinary letter, the identity of which we cannot prove
and that is why we wanted the affidavit in the proper form.

THE PRESIDENT: Would the letter itself be sufficient if the
prosecution were prepared to admit the letter?

DR. KUBUSCHOK: Yes, it would suffice, for we could certainly
prove nothing more with the affidavit than what is contained
in the letter.

SIR DAVID MAXWELL FYFE: I have no objection to admitting the
letter, my Lord.

THE PRESIDENT: Very well. Thank you, Sir David.

Then the interrogatories of Prince Erbach-Schonberg will be
amended in the way that we have indicated, and the letter of
Count Friedrich Karl von Feil will be admitted.

SIR DAVID MAXWELL FYFE: I wonder if your Lordship will allow
me to mention one point that arose on Tuesday.

Your Lordship may remember that the defendant Jodl said that
he had not been permitted by the prosecution to mention a
document. My Lord, a misunderstanding arose in this way.
Your Lordship may remember that at an early stage, in
dealing with witnesses and applications, I objected to
general evidence of shackling because I said that the
prosecution had not laid evidence of shackling by the
Germans as a part of their case, and therefore it did not
seem to me an issue that need be pursued.

I put that forward, and Mr. Roberts, who was dealing with
the later stages, adopted the same line.

                                                   [Page 44]

Apparently that was understood as including an objection to
the Wehrmacht order which the defendant Jodl mentioned and
which he wanted to use as an answer to a broadcast of the
British War Office. I should like to add that I certainly
didn't wish to object to the defendant Jodl clarifying a
Wehrmacht order that was part of the preparations for the
Commando Order, and I said so at the time.

I should not like the Tribunal to think that I was making
any reflection on the learned professors who are conducting
the defendant Jodl's case, or putting, forward that they had
made a basic accusation against me. I thought, therefore,
the Tribunal would allow me just a moment to explain that it
was a misunderstanding and that neither of us feel that we
have been injured in any way by the other by what has been

THE PRESIDENT: Is there anything further that needs to be
done with reference to the admission or introduction of

SIR DAVID MAXWELL FYFE: Nothing at all, because I waived any
objection to it, and the defendant Jodl was permitted, in
giving his evidence, to make a full explanation as to it. I
only wanted it to be understood how the misunderstanding had
arisen, and that I did not feel that Professor Exner or
Professor Jahrreiss had made any baseless charges against me
in so doing.


SIR DAVID MAXWELL FYFE: Thank you very much.

DR. NELTE (counsel for defendant Keitel): I should like to
put one question to the witness.




Witness, the charge has been made against the defendant,
Field-Marshal Keitel, that - and I quote: "rather than back
up his subordinate officers and protect them, he threatened
them; yes, he threatened to turn them over to the Gestapo."

Can you give us facts about this charge which prove that
this was not the case?

A. I can testify that Field-Marshal Keitel was always very
well disposed towards the officers of the Wehrmacht
Operations Staff. For instance, the relationship between him
and Colonel Monch, who was closely connected with him in his
military capacity of chief of the organization division, was
almost that of father and son; and he deeply lamented his
death in action on the Eastern front.

I can also say that I myself, together with
Lieutenant-Colonel Ziehlberger, the I-a man on my staff, in
the year 7944, on the basis of factual disagreement with the
staff of the Reichsfuehrer SS, was accused in a letter to
Field-Marshal Keitel of sabotaging the co-operation between
OKW and the Reichsfuehrer SS and the conduct of the war. In
his reply, which I saw myself, Field-Marshal Keitel
sheltered us in every way; and said that he would take
entire responsibility for everything done by his subordinate

DR. NELTE: Thank you very much. I have no further questions.

THE PRESIDENT: Is there any cross-examination?

MR. ROBERTS: My Lord, I do not propose to cross-examine.
That, of course, will not be taken to mean that the
prosecution is accepting the truth of this evidence at all.
But the whole question of atrocities in the East has been so
thoroughly covered by evidence and by document, my Lord, I
think it would be wrong and repetitious if I cross-examined.

THE PRESIDENT: Yes, Mr. Roberts.

                                                   [Page 45]

MR. ROBERTS: My Lord, there was one other point. Dr.
Laternser, in the interest of saving time, produced an
affidavit of this witness dated 20th May, 1946.

My Lord, of course, we are most anxious to assist Dr.
Laternser in any effort on his part to save time, and we do
not put any objection to this affidavit. But I am not quite
certain as to what the affidavit is, or whether it has been
put in as an exhibit, in which case it should be given a
number, or whether it should go to the Commission.

THE PRESIDENT: I do not think it is necessary for it to be
given an exhibit number. It was put to the witness, and he
says the evidence was correct. That enables Dr. Laternser to
refer to it hereafter.

MR. ROBERTS: Yes, my Lord. Then I propose the prosecution
should get copies. Could that be conveniently arranged?


MR. ROBERTS: My Lord, Mr. Dodd is pointing out that we have
not seen this affidavit. We do not know what it contains.
But we will get a copy, and if we have any further
application to make, we can make it.

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