The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/12/7

THE PRESIDENT: What do you say about the reading of the
Indictment? Are you making a complaint because the
Indictment had been read?

DR. STAHMER: No, no, no.

THE PRESIDENT: The matter stands upon a different footing.
The Charter, which is the document which governs the actions
of the Tribunal, provided that the Indictment must be read.
It does not follow that what is now being suggested is not
provided for in the Charter. The only reason why we ruled
that every document which the prosecution wished to rely
upon must be read in open court was because the prosecution
at that time had not found it possible to translate into
four different languages every document which it wished to
put in evidence. For the convenience and in fairness to the
defendants and their counsel, therefore, we ordered, as you
remember, at an earlier stage that every sentence in a
document upon which the prosecution relied and which we
could consider as evidence should be read into the
microphone so that it could come to you in German and would
appear in the record, in the transcript. That principle no
longer applies to the documents which are now put in because
they have been translated into four different languages by
the prosecution's translation division. Therefore, in the
interest of time, which must be almost equally important to
the defence as well as to everyone else concerned, it seems
to the Tribunal that the suggestion which Mr. Justice
Jackson has made is a very sound one and you will, of
course, be able to comment in any way you think right during
the course of your final speeches upon the documents, on
which you rely, subject to any question of relevancy which
may be of real importance. There may be certain documents
which may be objected to by the prosecution, but as Mr.
Justice Jackson said, he will not now raise any question of
relevancy, and he is agreeable that all these documents
referred to in your document book should be considered by
the Tribunal. Remember, also, when we approved your
documents we expressly reserved any question of relevancy of
particular passages in these documents which you might want
to use.

Perhaps it will be appropriate for us to adjourn now and you
can discuss the question with your colleagues.

(A short recess was taken.)

DR. DIX (counsel for the defendant Schacht): Gentlemen of
the Tribunal, I was, of course, not in a position to have a
vote taken among my colleagues of the defence on the
proposal of Mr. Justice Jackson, for the reason alone that
not all defence counsel are present here. But I have been
able to convince myself that the majority of the defence
counsel will agree with the reasons which I am going to
give, and I have no doubt that all defence counsel support
the application which I am about to make, to the effect that
the suggestion of Mr. Justice

                                                  [Page 342]
Jackson should be rejected. But to be fair I feel obliged to
emphasise that naturally every one of us is entitled to
present his point of view on this question for himself and
within the scope of his own subject-matter.Now to the matter
itself: The suggestion of Mr. Justice Jackson - especially
if it is followed in principle with regard to all the
documents which are to be submitted by the defence - would
aim at the introduction of a tremendous volume of documents
as subject-matter in the trial without their being made
known, by oral presentation in open session, to the public
and thus to the whole world, which is deeply interested in
this trial.

I abstain from quoting, with judicial dialectics,
provisions, for instance, from the Charter set up for this
trial, which could be used to conduct a polemic against Mr.
Justice Jackson's proposal. I will start with the principle,
about the unconditional and absolute importance of which
there will certainly be no difference of opinion between the
Tribunal and us or between the prosecution and us; namely,
the principle that this whole trial must be subject to the
absolute postulate of justice and fairness. These are
exactly the motives which prompted the authors of the
Charter to give Part IV of the Charter a very pronounced
heading. It says: "Fair Trial for Defendants."

But I cannot consider it just and I cannot consider it fair
if the prosecution had the right, for months, not only once
but sometimes repeatedly, to bring their evidence to the
knowledge of the public and of the world by reading it into
the microphone; and in this regard it should be noted that
when these documents were presented often only parts of
documents were read which, in the opinion of the
prosecution, were incriminating to the defendants, while
those parts were omitted which, in our opinion, were
exonerating for them; it must, therefore, be considered an
injustice that a defendant should not also have the
opportunity to bring to the knowledge of the world, through
his defence, those matters which, in his opinion and the
opinion of his counsel, speak in his favour, when the
prosecution had previously had the right and the opportunity
to apply that procedure to the incriminating documents.

May I draw your attention to this fact - and I have pointed
it out repeatedly - that certain incriminating points have
not only been brought to the knowledge of the world by
reading the documentary evidence, but were repeated in the
form of representation to the defendants when they were
examined as witnesses, and thereby they have been drummed
into the ears of the listening world again and again. I ask
you urgently, and implore your Honours in the interest of
just proceedings, which I am sure are desired by you as well
as by the authors of the Charter, to give the same
opportunity to the defendants.

In support of his suggestion Mr. Justice Jackson has,
furthermore, even formally emphasised the point of view that
the trial would be shortened. The defence does in no way
deny the necessity of limiting this trial to the time
needed. But perhaps I may in this connection draw your
attention to a statement made by the President of the Court
at the Belsen trial, in reply to Press criticism about the
allegedly too lengthy duration of the trial. The gist of
that statement was: that no duration, however long, was to
be regretted, as long as it helped to reveal the truth in
the end. I ask you to apply this principle here as well,
before the necessity of saving time.

And finally, may I - without assuming any right to criticise
the measures decided upon and carried out by the prosecution
in accordance with its duties - may I point out that as
regards the duration of the trial thus far - should anyone
consider it too long - I do not think it has been so. In any
case, if it is so, it is not the fault of the defence. So
far - I think I can say this with a clear conscience - we
have not done or said anything which could be justly used as
a reproach to us for delaying the trial unnecessarily.

If, furthermore, as your Lordship has pointed out, the
reason no longer exists which caused the Tribunal to order
that those parts of documents which

                                                  [Page 343]
were to become the subject-matter of the trial should be
presented orally, then I should like to point out that the
vast majority of the documents which were produced at the
time and accordingly also presented verbally in part were
already at that time available in fourfold translation.

Furthermore, I should like to point out that this
documentary evidence, if it is to be comprehensible to the
Tribunal and if it is to serve the purpose of establishing
the truth, without doubt in many cases calls for explanatory
comments by the defence counsel. The possibility of such
comment would be removed if we are instructed to submit
these documents to the Tribunal in toto.

As far as I have been able to ascertain, without wanting to
prejudice anybody, my colleagues have no intention of
quoting the entire contents of the document books.

As far as I understand it, they intend in most cases rather
to present excerpts which they are going to designate, and
the relevancy of which may then be discussed if the occasion
arises. Even such selection of these parts of the documents
which are considered to be really relevant would not be
possible to point out, in documents already read by the
prosecution, those parts which have not been read but which
are exonerating for the defendant.

If it has been said - and your Lordship has pointed it out -
that the defence counsel have an opportunity to quote these
parts of the documents during their address, then I believe
I agree with the Judges that the address should, if
possible, be a coherent and terse summary, evaluating the
entire substance of the trial. If we are now instructed to
refer to parts of documents during the address and quote
explicitly once more those to which we attach importance as
evidence, but which we would not mention at all or only
incidentally or summarily in connection with a comprehensive
evaluation, then the danger arises that the coherence or,
let us say, the bold outline of our address would suffer by
a recital of the subject-matter in detail. A further danger
arises that the time which, Mr. Justice Jackson wishes to
save through his suggestion will be lost again, because the
final address will take so much longer, which need not be if
it is strictly a summary, an overall evaluation, in
accordance with its purpose.

I consider it even possible that later on, if a difference
of opinion as to the relevancy of an individual document
should arise, there might be considerable: delay and
disturbance in the proceedings, whereas, if one can submit
the document in its essential parts at this time, together
with statements to explain and connect them, one would have
an immediate opportunity to state just why one considers the
part presented as relevant, so that the Tribunal would have
an opportunity to make a decision as to relevancy now.

In my opinion there is a multitude of points which are
against Mr. Justice Jackson's suggestion.

I summarise: As far as I am concerned, the most important
point of view is that of fairness and justice. The defence
counsel, as I have ascertained beyond any doubt by
conversations during the recess, must and would consider it
a severe and intolerable limitation of the defence, if,
contrary to the procedures exercised so far by the
prosecution, it were deprived of the possibility of
presenting, in its turn, at least the relevant parts of its
own documentary evidence to the Tribunal verbally, with
comments. I am of the opinion that it is a simple postulate
of fairness in the forensic engagement between prosecution
and defence that now the defence, too, should be given the
same opportunity - and this is not meant to be criticism
either, but merely a statement of fact - of which the
prosecution has availed itself to a considerable and
sometimes a cumulative extent.

May I request, therefore - and I think my request is
supported by the entire defence - that the suggestion of Mr.
Justice Jackson be rejected.

THE PRESIDENT: One moment. You began your address by saying
that you would not refer to the Charter. On what Article of
the Charter do you rely

                                                  [Page 344]
for, your argument that all documents which are presented
must now be read?

DR. DIX: I said that I would not refer to individual
provisions of the Charter as a basis for my application. As
a basis for my application I have merely mentioned the
heading of Part IV of the Charter which says, "Fair Trial
for Defendants," and I have explained, and need not repeat,
that I would not consider it a fair trial if Mr. Justice
Jackson's suggestion was followed. However, I have
deliberately, although my attention was drawn to specific
provisions of the Charter which, directly or indirectly,
might be used as legal construction to support my
application, I have refrained deliberately from doing so,
since these individual rules in my opinion are not
convincing.

The principle of justice and fairness however, is
sufficiently strong in my opinion, and so are the other
arguments of practicability and feasibility which I took the
liberty to present to the Tribunal. I think there must be a
misunderstanding.

THE PRESIDENT: But you will not have omitted to notice that
Article 24 deals expressly with the course of the trial. Do
you rely upon any part of Article 24?

DR. DIX: No, no. I have deliberately not referred to any
part of Article 24, since that article gives considerable
powers of discretion to the Tribunal regarding the general
rules of procedure which, in my opinion, have nothing to do
with the question under discussion at present. This is
merely a question of justice and fairness, and, if I may add
this, it is a fundamental rule of oral trial. We now have an
oral trial, we now have a trial in open session. It is in
existence here. I am not sure whether or not the open
session is prescribed by the Charter, but it exists. Since
it is in existence, we must proceed in accordance with these
principles and therefore, in my opinion, the defendant has
also the right to present to the world what is in his
favour, after the prosecution has presented to the world
what is not in his favour.

THE PRESIDENT: I want to ask you another question. Are you
suggesting that the defence should be able to quote, to read
documents, more than once?

DR. DIX: I am not suggesting that in any way. As far as I am
concerned, my documents, of course, will only be read in
part and certainly not twice. I have merely said that the
prosecution has done so, has read documents twice; sometimes
even three times - as I hear somebody exclaiming - but it is
not my task to criticise that conduct of the prosecution,
that is the prosecution's business. I am not here to make
criticism; that is for the Tribunal and the prosecution. I
have merely stated the fact.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal would like
to put a further question to Dr. Dix before they hear you,
and also -

MR. JUSTICE JACKSON: I would like to make a simple statement
of fact -

THE PRESIDENT: Please do.MR. JUSTICE JACKSON: - which I
think will clarify this situation in justice to the United
States of America.As to the fairness, I call the Tribunal's
attention to the fact that we have printed, mimeographed,
250 copies of Dr. Stahmer's entire document book, and it is
in the press room waiting for delivery to the Press when it
is received by this Tribunal, so that we have done
everything that we could to make public his documents.

In the second place, we have gone so far as to print even
things that the Tribunal ruled out, rather than to have
controversy about them.

In the third place, it is not the function of the Tribunal,
under the Charter, to spread propaganda. A large part of
this is matter that is twenty years old and is in every good
library and will not be used by newspapers and constitutes a
waste of our money. We have tried to do everything in order
to make this trial completely fair to these people, and now
that I have discovered that we are printing documents that
the Tribunal has already ruled out, I must say that I

                                                  [Page 345]

shall stop it. I think we have been imposed upon, and this
document book will show it. There is document after document
that the Tribunal has already ruled irrelevant, and we have
gone to the expense of printing them in order to be more
than fair.

DR. DIX: May I answer to that very briefly? As far as the
point of view of propaganda is concerned, I regret that my
suggestion has not been followed, according to which the
public and the world would only hear those parts of our
document books which have been recognised as relevant by the
Tribunal, and then presented by us. If the contents of the
document book does produce certain propaganda effects,
though this is unknown to me and would be entirely against
our intentions, then it is merely due to the fact that the
contents of these document books has been submitted to the
Press not through legal and normal channels, or let us say
not by due procedure, i.e. from the sessions records, but
without our knowledge, and therefore things were
communicated to the Press and to the world which, in the
opinion of the Tribunal, under the circumstances, may be
irrelevant or perhaps biased. Please do not misunderstand
me. I am not saying that they are; I am merely talking in
the abstract. But if you want to avoid just what Mr. Justice
Jackson wishes to avoid - namely, that political propaganda
should be made by means of this trial - then you must follow
my suggestion; I want only that which has here been
considered relevant by the Tribunal and admitted for
presentation to be presented and brought to the knowledge of
the world.

It is very difficult to understand every word correctly
through the earphones, but if Mr. Justice Jackson meant that
we are trying to obtain a propaganda effect here, that is
not the case. If he further mentions, as a point of
fairness, that the prosecution had done everything to inform
the world public by placing at its disposal all the document
books, then I have no criticism to offer in that respect.
Far be it from me to call that unfair. But here we are in
Court, having proper proceedings. We are not making Press
propaganda; rather the Press is to gather information and
report to the world about this trial from this Courtroom.
The defence is only grateful if its efforts to carry through
proper proceedings with full information to the Press are
supported by the Tribunal.

But this is not the crucial point. I have not accused
anybody of being unfair. I have merely emphasised that it is
a requirement of fairness to let the defence do the same
things which have continually and repeatedly been done by
the prosecution.

THE PRESIDENT: Now, Dr. Dix, will you tell me this: what
suggestion you have for shortening the trial? You must
recollect in the criticism that you have been making of the
prosecution's case with reference to their documents, that
their case has been based almost entirely upon documents.
They have called - I do not know how many witnesses, but
very few. You and the other defendants' counsel are
proposing to call a very great number of witnesses, and what
I would ask you is: How do you propose that the trial should
be shortened so that it may not last until the end of July
or August?

DR. DIX: If I make a suggestion, then I can of course do so
only for myself and for the case I have to defend. May I
suggest, your Lordship, that we begin by producing the
documentary evidence, and I would ask you to realise that,
if I am not mistaken, none of the defence counsel intends to
read his entire document book here before the Tribunal. All
those whom I have asked, at any rate the majority, certainly
did not intend to do that.

Those with whom I have spoken want to quote excerpts only,
and in the choice of these excerpts and in the discussion as
to whether their presentation would be relevant, a measure
could be applied which would, of course, take into
consideration the necessity of the matter as well as the
question of time. I do not think that the presentation of
the documents will take a very long time. My colleague, Dr.
Stahmer, for instance, has told me that although he

                                                  [Page 346]

has a big and important case to defend, he believes that he
will probably complete his case in about two hours or maybe
in even less than two hours. I am not a prophet, but I think
the Tribunal is considering the matter as more hazardous
than it is in fact. Please give us a chance. You may
certainly rest assured that all of us are anxious not to
delay the proceedings. Also we are quite willing to take
advice, if the Tribunal says "We do not consider this or
that important," or, "This or that we consider already
demonstrated," or "presume this or that," etc. That way we
will make fast progress. May I, therefore, suggest, not to
lay down now any obligatory abstract rule for the procedure
to be followed, but to go to work with us now in a practical
manner and to accept our assurances that we want to assist
in shortening the trial, and, to begin with, start from the
standpoint that we may present what we consider relevant. If
it should turn out that too much time is being taken up -
which, as I have said, I do not believe will be the case -
then we could still discuss that matter once more. After
all, the Tribunal is at liberty to make its decisions; all I
ask is that it should not be done now because I am afraid
that the Tribunal, on the strength of the experience with
the documentary evidence of the prosecution, is
overestimating the time required for the presentation of the
defence's documentary evidence, in which connection I again
repeat that this is neither reproach nor criticism. I know
that the prosecution has based its case mostly on documents,
and therefore naturally had to take more time.


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