Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-185.01 Last-Modified: 2000/10/14 [Page 289] HUNDRED AND EIGHTY-FIFTH DAY WEDNESDAY, 24th JULY, 1946 THE MARSHAL: May it please the Tribunal, the defendants Hess and Raeder are absent. THE PRESIDENT: The Tribunal will now hear the applications for witnesses on behalf of the various organizations, taking the SS first. MR. ELWYN JONES: If your Lordship pleases, with regard to the SS organization defending counsel has applied for seven witnesses. Five of these - von Eberstein, Hinderfeld, Hausser, Riedel and Reinicke - are among the twenty-nine SS witnesses whose evidence has been heard on commission. The prosecution has no objection to the calling of these witnesses, although, as there is a certain amount of overlapping in the evidence of Eberstein and Hinderfeld, it is suggested with respect that this might be avoided when those two witnesses are examined by Dr. Pelckmann. As to the other witnesses applied for, with regard to Rode, the Tribunal will see from defending counsel's application that an affidavit from this witness was put in by the prosecution as Exhibit USA 562. Dr. Pelckmann has informed me that he does not propose or desire to call Rode to testify before the Tribunal itself, but will be quite content to cross-examine Rode on commission. Therefore, if the Tribunal thinks that the interests of justice demand the resumption in this particular case of the taking of evidence on commission the prosecution has no objection to Dr. Pelckmann's suggestion. Perhaps in fairness to Dr. Pelckmann, I ought to add that I understand that Rode only arrived in Nuremberg a few days ago. The last witness applied for is Hermann Rauschning, the former Senate President of the former free city of Danzig, and the author of the book The Voice of Destruction, extracts from which the prosecution has submitted in document Exhibit USSR 378, as part of the prosecution's case. No affidavit from Rauschning has ever been used by the prosecution. I understand that Rauschning himself is now in the United States. With regard to him, the prosecution object to his being called as a witness upon the following grounds. If the Tribunal will look at defending counsel's application, it will be seen that there are three matters which it is desired to elucidate from Rauschning. In so far as some of these facts may be relevant or have evidential value, I submit that those facts can be extracted from Rauschning's book The Voice of Destruction, and that in those circumstances it is quite unnecessary to have Rauschning here as a witness himself. The prosecution would, of course, have no objection to further extracts from that book being put in as part of the defence case of the SS organization. THE PRESIDENT: Would the prosecution object to interrogatories being put to Rauschning? MR. ELWYN JONES: No, my Lord, we should have no objection to that. There are facts set out in the first two paragraphs of defending counsel's application with regard to Rauschning. I submit that with regard to the first, a [Page 290] Cassandra-like statement by Rauschning that up to 1939 his warnings were not heeded, it has, I submit, no evidential value whatsoever. With regard to the second paragraph, in which it is stated that Rauschning has knowledge of the fact that in 1936-1937 Hitler did not have the intention of exterminating the Jews, it is not in any way clear how Rauschning could, in fact, have had any knowledge of Hitler's intentions at all - even the devil knoweth not the heart of man. I do not submit that testimony of that kind from Rauschning would be wholly irrelevant. Whatever I have said, the prosecution would have no objection to further extracts being taken from Rauschning's book, or interrogatories being administered to him. THE PRESIDENT: Dr. Pelckmann. DR. PELCKMANN: May it please the High Tribunal, I am in complete agreement with what Mr. Elwyn Jones has said, as far as it applies to the rest of the witnesses. Regarding his statement about the witness Rauschning, I should like to say the following: The decision of the 13th of March, 6-A, paragraph 3, specifies that it is relevant to submit evidence on whether the possibly criminal aims and activities of the SS were quite obvious or were known to the bulk of the members. I tried before the commission to prove that the aims and activities were not criminal, that the crimes committed were only individual acts or acts of certain groups, and that these acts were not known to the majority of the members. I tried to prove this by means of relatively very few witnesses, compared with the number of members; as the prosecutor said, by means of twenty-nine witnesses from among thousands of affidavits. All this material will be submitted to the High Tribunal in due course, but it all concerns the so-called legal standing of membership. The prosecution, on the other hand, submitted its evidence against the SS, as well as against the other organizations, directly to the Tribunal through documents and through the direct testimony of witnesses, a procedure which took many weeks. As regards the further assertion, in connection with paragraph three of the decision of the 13th of March, that the bulk of the SS - (The President interrupted the statements of the defence counsel for a few minutes.) THE PRESIDENT: Go on. DR. PELCKMANN: As regards the further assertion that the bulk of the SS knew of such criminal aims of the SS and of the criminal acts of individual members or certain groups, the prosecution did not present any proof, but merely asserted that this could be seen clearly from the circumstances, and was a matter of course. I consider it only just, right and proper that in addition to the statements of SS members, which as indirect proof I shall submit in large numbers in the form of affidavits, and the probative value of which could be disputed by the prosecution because they are statements of the people in question, namely of the SS members themselves, that in addition the witness Rauschning, the only one of my witnesses who is not under automatic arrest, should testify before this Tribunal, and should testify in person. The only other witnesses who will appear in person are the five witnesses of the SS who held a relatively high rank, and therefore have a fairly general knowledge, but it can be held against them that their testimony is not quite credible. As for the person of Rauschning and the relevance of his testimony I should like to say the following: As has already been stated, he was an SS Standartenfuehrer and President of the Danzig Senate. He had the complete confidence of Hitler until 1936, when the break with Hitler occurred. Rauschning emigrated, and was very active in publishing material abroad. In his books, which have become well known throughout the world, he constantly warned against Hitler and his plans, and he is still everywhere known as a man who did not defend or protect the Hitler regime and its guilty members. [Page 291] In his many conversations with Hitler, he learned - and now I come to the main point of my application: Firstly, that at least in the years 1936 and 1937 Hitler did not intend to exterminate the Jewish population. He has given detailed reasons for this statement, and the objection of the prosecution that it was impossible to recognize Hitler's intentions does not completely apply, because this precisely is the task of the Tribunal to recognize Hitler's intentions as regards the salient points of the Indictment. If Hitler's intentions are recognized, then perhaps one can decide the responsibility of the bulk of the members of the organizations. Of course, we have only indications, and must, if possible, obtain and evaluate direct evidence of Hitler's intentions. This direct evidence of Hitler's intentions the witness Rauschning can give on the basis of his conversations with Hitler, and I do not think that one can find a better witness for this subject. Secondly, continuing with the points of my application, Rauschning learned that Hitler - THE PRESIDENT: What is it, Dr. Pelckmann, that makes you think that Rauschning would be able to give this evidence? DR. PELCKMANN: I know his books, my Lord. THE PRESIDENT: Then if it is in his books, how will it help to have him say what is in his books again? DR. PELCKMANN: Of course, his books represent only a very small part of his entire knowledge, and he certainly did not write them with this trial in mind. The chief points brought up by the prosecution in this trial can now be answered much more satisfactorily by the witness himself than by quotations from his books taken out of their context. THE PRESIDENT: I understand you are saying that the only reason you have for thinking that he would be able to answer these questions is because of what you see in the books. Then you do not know that he can give any further evidence than is in the books. DR. PELCKMANN: Of course, I do not know that, but it is probable, and my assumption that he can do it is based on experience. I do not think that I am asking for anything out of the ordinary. I expect a man who in the years from 1933 to 1936 concerned himself so intensively with Hitler and Nazism and then studied this regime in later years and discussed it with foreigners, I expect such a man to know much more than is set down in his books. And I also have the following reasons for my application: In preferring its charges the prosecution used quotations from the books of Rauschning, and these quotations are practically identical with the affidavits. The prosecution would equally well have been able to obtain affidavits on the pertinent passages in Rauschning's books which would perhaps have contained his assertions in more detail. According to the rules of procedure established by this Tribunal, I am entitled to ask that witnesses who have deposed affidavits for the prosecution be cross-examined by the defence before the Tribunal. I believe that, if - THE PRESIDENT: I am not aware that such a rule applied to witnesses in the United States. The rule, in so far as any rule at all was made, was that people who were in this country, if they had made affidavits, might be brought here for cross-examination; that rule has never been applied to persons who were in the United States or in any other country outside this country. The case of Mr. Messersmith is an instance, and there has never been a case of anybody's being brought in, except, perhaps, the witness Dahlerus. DR. PELCKMANN: Since the Indictment and the Tribunal's verdict are of great importance for all members of the SS, and since, unlike the cases of the individual defendants, I can only call members of the organization as witnesses - and this is a [Page 292] considerable restriction - I think I may ask the Tribunal that this witness, the only one who is not implicated and can tell the Tribunal something about conditions at that time and his views on them, that this witness be brought here; technical difficulties should play no part in this trial of surely world-wide significance. May I continue, my Lord? THE PRESIDENT: Certainly. DR. PELCKMANN: The witness is to testify further that it was Hitler's deliberate policy to deceive the German people as well as foreign countries about his plans and intentions; for instance, about his aggressive intentions. In very intimate conversations with Rauschning, Hitler remarked - and almost joked about it - how successful he was in leading by the nose not only foreign countries but his own people. These questions are relevant within the decision regarding evidence. With reference to the Jewish question, I refer to the assertion of the prosecution that the Party programme resulted directly in the extermination camp at Auschwitz. The Party programme, as the bulk of the SS members saw it, provided only for a solution of the Jewish question on the basis of the statute of minorities, supplemented by the somewhat more severe Nuremberg Laws of 1935. But, however this may be, it could not be a crime against humanity. If it could be proved that during this time Hitler actually did not intend to exceed this programme, then the assertion of the prosecution could no longer be upheld. If this attitude of Hitler at that time can be proved, then the SS and the simple SS man who followed this programme could not have had any other attitude either. Secondly, the deception of the German people: The following is clear: We know today from the various documents just what did take place at that time: We need only read the Reichstag speech about Hitler's will for peace, or the reasons for the murders on 30th June, 1934. But it would be startling if a witness asserted that Hitler had confided to him that it was his principle to deceive the Germans about his true intentions. The prosecution would then have to prove that the SS was not deceived - that the SS, in agreement with Hitler, actually knew what Hitler wanted. THE PRESIDENT: Dr. Pelckmann, the Tribunal did not desire to hear a general argument from you upon the whole case. They are simply dealing with the question of whether this man Rauschning should be brought from the United States. DR. PELCKMANN: If the relevance of his testimony is not disputed, then I can very well understand - THE PRESIDENT: Dr. Pelckmann, we have your written application before us, and you are dealing with a variety of matters which are not mentioned in that written application. DR. PELCKMANN: I cannot, of course, set down in my application everything that I would want to include. This application, naturally, contains only my main points: 1. The Jewish question, 2. The deception of the German people and 3. of the SS members. THE PRESIDENT: We have indicated to you what the view of the Tribunal is - that we think that you have dealt with the application, and we do not desire to hear a general argument. DR. PELCKMANN: Mr. President, I only tried to show the relevance of my three points of evidence. If the Tribunal can assume that these points are relevant, then, I think, I need only add this: A single witness who is outside the SS, who, it is true, at one time - THE PRESIDENT: You have already said that, Dr. Pelckmann, more than once, and the Tribunal is quite aware of what you have said. [Page 293] DR. PELCKMANN: Mr. President, do you not want an answer to the question why we should deviate from the general rule and bring this witness here from America? Do you not want an answer to that? THE PRESIDENT: You have already presented argument to that effect. Now we will deal with the SD. MR. DODD: Mr. President, counsel for the SD has asked for only two witnesses, and the prosecution has no objection to these two witnesses being heard by the Tribunal. It appears to be a reasonable number. While I am before the Tribunal, may I go on with the applications for the Reich Cabinet and High Command as well? THE PRESIDENT: The Reich Cabinet, we understood, was not going to be dealt with today. MR. DODD: We received the application for one witness this morning. THE PRESIDENT: Oh, yes. Certainly. Go on and deal with these. MR. DODD: With respect to the High Command, counsel for the defendant organization has asked for six witnesses, and our position is that it is at least twice as many as are necessary and that three - something like three - would be a much more reasonable number to present before the Tribunal. We have no particular preferences or no objections, no particular objections, to any of the three. I understand, however, that counsel prefers von Rundstedt, von Brauchitsch and von Mannstein, and we have no objections if that is his choice out of the six, but we do object to six on the ground that they are too numerous and all of them have been heard before the Commission. With respect to the application of the Gestapo, only two witnesses are asked for - the witness Best and the witness Hoffmann, and we have no objection to the appearance of these two witnesses.
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