The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/09/23

THE PRESIDENT: There was, at any rate, a suggestion that
translators should be ordered to translate such documents as
trial briefs.

COLONEL STOREY: That is correct, yes, Sir, and whenever
counsel wanted more copies they would request them, and they
would be available for them. The translators, for
translation of the photostats, would be available if they
requested them. Were there any other questions, your Honour?

THE PRESIDENT: Do you mean that translators have not been
supplied to defendant's counsel?

COLONEL STOREY: If your Honour pleases, as I understand it,
the defendants' Information Centre is now under the
jurisdiction of the Tribunal, and my information is - I
would like to check it - that when they want extra copies
all they have to do is ask for them and they may obtain
them, and sufficient translators are available to provide
the extra copies if they want them. That is my information.
I have not checked it in the last few days, but sufficient
copies in English are furnished for all counsel, and these
briefs and document books are furnished to them in advance.
In this case I am told that the document book and the briefs
were furnished.

THE PRESIDENT: Yes.

DR. FRITZ SAUTER (Counsel for defendants Ribbentrop, Funk
and von Schirach):

Your Honour, you may be assured that we defence counsel do
not like to take up the time of the Tribunal for discussions
such as these, which we ourselves would rather avoid. But
the question just raised by a colleague of mine is really
very unpleasant for us and makes our work extremely
difficult.

You see, it does not help us if after agreements are made or
regulations issued, the actual practice is entirely
different.

Last night, for example, we received a big volume of
documents, all documents being in English. Now, in the
evening, in prison, we are supposed to discuss with our
clients for hours the result of the proceedings - a
difficulty which has now been greatly augmented by the
installation of wire screens in the consultation room. In
addition, we are also required to talk over, volume by
volume, documents written in English; and that is
practically impossible. One does not receive these documents
until the evening of the day before, and it is not possible,
even for one who knows English well, to make the necessary
preparation.

The same thing is true of the individual accusations, and I
do not know whether these individual accusations, as we
receive them for each defendant, have also been submitted to
the Tribunal.

THE PRESIDENT: Nearly every document which has been referred
to in this branch of the case, which has been presented by
Mr. Albrecht and by Sir David Maxwell Fyfe, is a document
which has been referred to previously in the trial

                                                  [Page 106]

and which must have been before the defendant's counsel for
many days, for weeks, and therefore there can be no lack of
familiarity with those documents.

Documents which have been referred to, which are fresh
documents, are very few indeed and the passages in them,
which are now being put in evidence, are all read over the
microphone and, therefore, are heard by defendant's counsel
in German, and can be studied by German counsel to-morrow
morning in the transcript of the shorthand notes. I do not
see, therefore, what hardship is being imposed upon German
counsel by the method which is being adopted.

You see, the counsel for the prosecution, out of courtesy to
counsel for the defendants, have been giving them their
trial briefs in English beforehand. But there is no strict
obligation to do that and, in so far as the actual evidence
is concerned, all of which is contained in documents, as I
have already pointed out to you, the vast majority of these
documents have already been put in many days ago and have
been in the hands of German counsel ever since, in the
German language, and also the documents which are now put
in.

DR. SAUTER: No, this is not true, your Honour. This is the
complaint which we of the defence counsel, since we dislike
to approach the Tribunal with such complaints, have been
discussing among ourselves, the complaint that we do not
receive the German documents. You may be assured, Mr.
President, that if things were as you believe, none of us
would complain but would all be very grateful; but in
reality it is different.

THE PRESIDENT: Dr. Sauter, surely, when you have a reference
to a German document, that German document is available to
you in the Information Centre. As these documents have been
put in evidence, some of them as long ago as the 20th
November or shortly thereafter, surely there must have been
adequate time for defendant's counsel to study them.

DR. SAUTER: For instance, this morning I received a volume
on Funk. I have no idea when this volume will be presented
in court - to-day or to-morrow. It is completely impossible
for me to study this volume of English documents upon my
return from the prison at nine or ten in the evening. That
overtaxes the physical strength of a defence counsel. I
could study it if it were in German, but even so it is
impossible for me to do so until nine or ten in the evening
as I have to make a visit to the prison. It is absolutely
impossible for us.

THE PRESIDENT: You see, Dr. Sauter, it is not as though you
have to cross-examine witnesses immediately after the
evidence is given. The documents are put in and it is not
for you to get up and argue upon the interpretation of those
documents. You will have, I regret to say, a considerable
time before you will have to get up and call your own
evidence and ultimately to argue upon the documents which
are now being put in. Therefore, it is not a question of
hours, it is a question of days and weeks before you will
have to deal with these documents which are now being put
in. And I really do not see that there is any hardship upon
defendant's counsel in the system which is being adopted.

And you will not forget that the rule, which, in a sense,
penalises the prosecution, is that every document which is
put in evidence and every part of the document which is put
in evidence, has got to be read in open Court, in order that
it should be translated over the earphones and then shall
get into the shorthand notes. I am told that the shorthand
notes are not available in German the next morning but are
only available some days afterwards. But they are ultimately
available in German. And, therefore, every defendant's
counsel must have a complete copy of the shorthand notes, at
any rate up to the recess, and that contains all the
evidence that has been given against the defendants, and it
contains it in German.

                                                  [Page 107]

DR. SAUTER: Yes, Mr. President, that which is most dear to
us is what we have already asked for many weeks: that the
documents, or at least those parts of the documents read,
should be given to us in German translation. It is very
difficult for us, even if we know English, to translate the
documents in the time which is at our disposal. It is
impossible for any of us to do this. That is the reason we
regret that our wish to get the documents in German is not
being taken into consideration. We are conscious of the
difficulties and we are very grateful for any assistance
given. Be convinced we are very sorry to have to make such
requests, but the actual circumstances are very difficult
for us. The last word I wish to say is that the conditions
are really very difficult for us.

THE PRESIDENT: Dr. Sauter, I am most anxious and the other
members of the Tribunal are most anxious that every
reasonable facility should be afforded to the defendants and
their counsel. But, as I have pointed out to you, it is not
necessary for you, for any of you, at the present moment, to
get up and argue upon these documents which are now being
put in. By the time that you have to get up and argue upon
the documents which are now being put in, you will have had
ample time in which to consider them in German.

DR. SAUTER: Thank you, Sir.

DR. BOEHM (Counsel for the S.A.): I have repeatedly asked to
receive copies of everything presented in English. After the
accusation against the S.A. on the 18th or the 19th
December, 1945, had already been presented and a document
book had been presented as evidence at this time, I received
to-day a few photostats, but I have not received most of the
photostats or other pertinent translations. This shows that
we do not receive the translations right after the court
presentation. It shows further that one can never read the
session minutes on the next day or on the day after that.
The minutes of the last session ...

THE PRESIDENT: We are not dealing with the S.A. or the
organisations at the present moment. If you have any motion
to make, you will kindly make it in writing and we will now
proceed with the part of the trial with which we are
dealing.

DR. BOEHM: Mr. President, will you permit me one more
remark? The minutes of 17th and 18th December, 1945, I have
received only to-day.

THE PRESIDENT: Do you mean the transcript?

DR. BOEHM: The German transcript for the 18th and 19th
December, 1945, I have received only to-day. You see, it is
not a fact that we receive the transcript the day after or
only a few days after the session. I received it weeks
later, after I asked for it repeatedly. I asked the
appropriate offices repeatedly to give me a copy of the
document book in German, but I have not got it yet.

THE PRESIDENT: We will inquire into that. One moment. Will
the last counsel who was speaking stand up?

I am told that is a special case; that the reason for the
delay in the case you have mentioned was that there had been
an error in the paging and, therefore, the transcripts of
those shorthand notes had to be recopied. I understand that
the delay ordinarily is not anything like so long as this.

DR. BOEHM: But I hardly believe that, in so far as the
translation of the document book is concerned, this delay is
due to those reasons. But even if the delay in this
particular case should be justified, it would hamper my
defence from week to week. I do not know on the day before
what is going to be presented and I do not know for weeks
afterwards what has been presented. I am therefore not in a
position to study the evidence from the standpoint of the
defence counsellor. I do not even know what is contained in
the document book. According to the procedure of the trial
the evidence should be presented in time. This is,
apparently, not the case.

                                                  [Page 108]

THE PRESIDENT: Perhaps you will kindly make your complaint
in writing and give the particulars of it. Do you understand
that?

DR. BOEHM: Yes.

THE PRESIDENT: Very well.

MR. ROBERTS: May it please the Tribunal:

It is my duty to present the evidence against Keitel and
also against the defendant Jodl, and I would ask the
Tribunal's permission, if it is thought right, that those
two cases should be presented together in the interests of
saving time, a matter which I know we all have at heart.

The story with regard to Keitel and Jodl runs on parallel
lines. For the years in question they marched down the same
road together. Most of the documents affect them both and,
in those circumstances, I submit, it might result in a
substantial saving of time if I were permitted to present
the case against both of them together.

THE PRESIDENT: Yes.

MR. ROBERTS: Then I shall proceed, if I may, on that basis.

My Lords, may I say, that I fully recognise that the
activities of both these defendants have been referred to in
detail many times, and quite recently by Colonel Telford
Taylor, and my earnest desire is to avoid repetition as far
as I possibly can. And may I say, I welcome any suggestions,
as I travel the road, which the Tribunal have to offer, to
make my presentation still shorter.

There is a substantial document book, document book, number
7, which is a joint document book, dealing with both the
defendants. Practically all the documents in that book have
already been referred to. They nearly all, of course, have a
German origin. I propose to read passages from only nine new
documents, and those nine documents, I think, are shown in
your Lordship's bundle and in the bundles of your
colleagues.

May I commence by referring, as shortly as may be, to the
part of the Indictment which deals with the two defendants.
That will be found on Page 33 of the English translation. It
begins with "Keitel" in the middle of the page, and it says:

"The defendant Keitel between 1938 and 1945 was -" the
holder of various offices. I only want to point out there,
that although the commencing date is 1938, the prosecution
rely on certain activities of the defendant Keitel before
1938, and we submit that we are entitled so to do because of
the general words appearing on Page 28 of the Indictment, at
the head of the Appendix:

   "The statements hereinafter set forth, following the
   name of each individual defendant, constitute matters
   upon which the prosecution will rely, inter alia, as
   establishing their responsibility:"

And then the Tribunal will see: "Keitel used the foregoing
positions, his personal influence and his intimate
connection with the Fuehrer in such a manner that: he
promoted the military preparations for war set forth in
Count One of the Indictment" - if I may read it shortly - he
participated in the planning and preparation for Wars of
Aggression and in Violation of Treaties; he executed the
plans for Wars of Aggression and Wars in Violation of
Treaties and he authorised and participated in War Crimes
and Crimes against Humanity.

Then the defendant Jodl between 1932 and 1945 was the holder
of various positions. He "used the foregoing positions, his
personal influence, and his close connection with the
Fuehrer in such a manner" - and this is not to be found in
the text relating to Keitel - "that he promoted the
accession to power of the Nazi conspirators and the
consolidation of their control over Germany - "

May I say, my Lords, here, that I know of no evidence at the
moment to support that allegation that he promoted the Nazi
rise to power before 1933. There is plenty of evidence that
he was a devoted, almost a fanatical admirer of the Fuehrer,
but that, I apprehend, would not be enough.

                                                  [Page 109]

And then it is alleged against Jodl that he promoted the
preparations for war; he participated in the planning and
preparation of the war; and that he authorised and
participated in War Crimes and Crimes against Humanity.

My Lords, with regard to the position of the defendant
Keitel, it is well-known that in February of 1938 he became
Chief of the O.K.W., Supreme Commander of all the Armed
Forces, and that Jodl became Chief of the Operations Staff,
and that is copiously proved, in the shorthand notes, on the
documents. Perhaps I ought to refer to his position in 1935,
at the time when the reoccupation of the Rhineland was first
envisaged. Keitel was head of the Wehrmachtsamt in the Reich
War Ministry, and that is proved by a document, 3019-PS,
which is to be found in "Das Archiv," and I ask the Court to
take judicial notice of that. It is not in the bundle.

Jodl's positions have been proved by his own statement,
Document 2865-PS, which is also Exhibit USA 16, and in 1935
he held the rank of Lieutenant Colonel, Chief of the
Operations Department of the Landesverteidigung.

May I just refer to the pre-1938 period - that is the pre-
O.K.W. period - and to two documents, one of which is new.
The first document I desire to mention without reading is
177-EC. I do not want to read it. It is Exhibit USA 390. My
Lords, those are the minutes, shortly after the Nazi rise to
power, of the Working Committee of the Delegates for Reich
Defence. The date is the 22nd May, 1933. Keitel presided at
that meeting. The minutes have been read. There is a long
discussion as to the preliminary steps for putting Germany
on a war footing. Keitel regarded the task as most urgent,
as so little had been done in previous years, and perhaps
the Tribunal will remember the most striking passage where
Keitel impressed the need for secrecy, "documents must not
be lost, oral statements can be denied at Geneva."

And I will submit, if I may be allowed to make this short
comment, that it is interesting to see in those very early
days of 1933, that the Heads of the Armed Forces of Germany
concentrated upon using lies as a weapon.

My Lord, the next document I desire to refer to is a new
one, and it is EC-405, Exhibit GB 160. I desire to refer to
this shortly, because in my submission it shows Jodl to have
had knowledge of and complicity in the plan to reoccupy the
Rhineland country, contrary to the Versailles Treaty. The
Tribunal will see that these are the minutes of the Working
Committee of the Reich Defence Council, dated the 26th June,
1935.

The Court will see that, a quarter of the way down the page,
in subparagraph (F), Lt.-Colonel Jodl gives a dissertation
on mobilisation preparation, and it is only the fourth and
fifth paragraphs on that same page that I desire to read:

   "The demilitarised zone requires special treatment. In
   his speech of the 21st May and other utterances, the
   Fuehrer has stated that the stipulations of the
   Versailles Treaty and the Locarno Pact regarding the
   demilitarised zone are being observed. To the Aide
   Memoire of the French Charge d'affaires on recruiting
   offices in the demilitarised zone, the Reich Government
   has replied that neither civilian recruiting authorities
   nor other offices in the demilitarised zone have been
   entrusted with mobilisation talks, such as the raising,
   equipping and arming of any kind of formations for the
   event of war, or in preparation therefore.
   
   Since political entanglements abroad must be avoided at
   present" - I stress the "at present" - "under all
   circumstances, only those preparatory measures that are
   urgently necessary may be carried out. The existence of
   such preparations or the intention of them must be kept
   in strictest secrecy in the zone itself as well as in
   the rest of the Reich."


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