The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/20

GENERAL RUDENKO: Yes, Mr. President.

Sir David has already expressed the point of view of the
prosecution on the question raised by the defence counsel. I
would like to add to what has already been said by Sir David
regarding the statements made here by the defence counsel.

The position of defence counsel Exner is that the defence
would not intentionally make defendants of the prosecutors
and that the defence will resort to a method of analysis and
explanation of events which will establish the motives,

                                                  [Page 262]

for in its opinion the motive is unknown, and in order to
determine this motive it is necessary to examine the
question : Were the Geneva and Hague Conventions at least
violated by other powers at war with Germany? In my opinion
- and I believe that I am also expressing the point of view
of all the prosecution - it is really strange to hear such a
statement on the part of a lawyer after a three-months trial
and after the presentation of a mass of evidence by the

The defence unquestionably has full right to submit proofs,
documents and witnesses on all counts of the charges lodged
against the defendants; and, as is evident from this
morning's session, when the prosecution examined the request
on behalf of the defendant Goering, as is known to the
esteemed Tribunal, the prosecution gave its consent, in
major part, to the calling of witnesses. But in the question
raised by Dr. Exner we have positive divergences both of
opinions and of principle.

The prosecution considers it impossible to deviate from the
one fundamental and decisive factor, that this is a trial of
the major German war criminals. The Tribunal is
investigating atrocities perpetrated by the Hitlerite
fascists, but does not overlook the fact that the defence
certainly could submit, after examining and analysing the
evidence already presented by the prosecution, this or that
evidence which in some manner could change individual
details. It is not, however, admissible, and it would indeed
be a grave violation of the Charter, to turn the examination
of these charges into a digression on questions having no
relation whatever to this particular trial.

The prosecution therefore energetically objects to the
requests for such documents as have absolutely no relevancy
to this trial, and the examination of which would
undoubtedly lead to a digression from the basic facts. This
is what I wanted to add to what Sir David has said on behalf
of the prosecution.

THE PRESIDENT: Before the Tribunal adjourns, as it will do
now, I want to say that the next four defendants on the
Indictment are required to name their witnesses and the
subject matter of their evidence, and the documents and the
relevance of the documents, by Wednesday next at 5 p.m. The
Tribunal will hold a session similar to the one it has been
holding this morning with reference to the defence of those
defendants on Saturday next at 10 o'clock.

The Tribunal will now adjourn until a quarter past two.

(A recess was taken until 14.15 hours.)

THE PRESIDENT: I have an announcement to make: With
reference to the pronouncement that I made this morning, the
Tribunal may hear the applications for witnesses and
documents of the defendants Kaltenbrunner, Rosenberg, Frank,
and Frick before Saturday. That will depend upon the
progress of the case. I have already stated that those
applications must be deposited with the General Secretary by
5 p.m. on Wednesday.

Secondly, all the defendants, other than the first eight
named in the Indictment, must make application naming their
witnesses and the relevancy of their evidence, and the
documents and the relevancy of the documents, by Friday next
at 5 p.m.

Thirdly, the Tribunal will sit in closed session on Monday
next at 4 p.m.

Perhaps I ought also to say that this does not affect - it
does not refer directly to defendants' counsel who represent
the Criminal Organisations. Their counsel will be heard
after the close of the prosecution's case, as has already
been announced.

Next would be Hess.

SIR DAVID MAXWELL FYFE: I only want to say that if the
Tribunal did desire to hear anything on the question of
reprisals, which was raised by Dr. Exner, Mr. Dodd is
prepared, if the Tribunal would care to hear further matter
on it.

THE PRESIDENT: Yes. The Tribunal would like to hear that

MR. DODD: May it please the Tribunal: I wish to say at the
very outset that I have made a rather hurried preparation
during the noon recess of the few

                                                  [Page 263]

notes on this subject, based on some work which we had done
a little earlier. I am not altogether prepared to go into
the matter to any great extent at this time, but I did want
to call to the attention of the Tribunal a few of these
notes that we have prepared. In view of Dr Exner's
contention that some of the documents which are offered by
the defence, or which they intend or hope to offer, are
admissible on the theory or under the doctrine of reprisal,
we would like to say to the Tribunal that the Convention of
1929 concerning the treatment of prisoners of war expressly
prohibits altogether the use of reprisals against prisoners
of war.

Parenthetically, I might say that as early as 1862 or 1863
the United States prohibited in its army instructions,
reprisals against prisoners of war.

Secondly, I should like to point out that the Hague
Regulations do not mention at all, in so far as we are able
to ascertain, the use of so-called "reprisal action" against

It appears that the Brussels Conference of 1874, which
accepted the unratified Brussels Declaration, so-called in
International Law - that conference rejected or struck out
several sections which were proposed by the Russians at that
time, having to do with the use of reprisal action against
civilians. I cite that because it is interesting, and
indicates that the powers were certainly thinking about the
matter of reprisals against civilians as early as then.

Thirdly, I should like to point out to the Tribunal that it
is commonly said by the writers on this subject that, before
reprisal action may be taken, a notice of some character is
usually required, and this reprisal action must be directed
against some specific instance which the first power
believes to be offensive and which it believes may call for
or justify the use of such action, so that some notice of
some kind to the offending power seems to be required by the
power which feels it has been offended.

I might say that in the prosecution's case in chief we
specifically avoided any reference to the well-known
incident during this war of the shackling of prisoners of
war, because there, there was some colour of notice, and the
matter was resolved by the powers concerned.

These are the points that we have had in mind during this
brief recess this noontime, and if the Tribunal would like
us to do so, we shall be glad to prepare ourselves further,
and to be heard further on this subject at a later date.


SIR DAVID MAXWELL FYFE: May it please the Tribunal: The
position with regard to the defendant Hess is set out in Dr.
Seidl's communication to the Tribunal, and I have one or two
comments to make on that on behalf of the prosecution.

THE PRESIDENT: Will you comment upon that, Dr. Seidl? Would
it be convenient to follow the same course as we followed
with Dr. Stahmer, and perhaps Sir David may say if he has
any objection, first of all to the witnesses, one by one,
that you are asking for?

DR. SEIDL (Counsel for defendant Hess): Yes. I should like,
however, to request the Court to permit me a short
preparatory remark and to make a motion.


DR. SEIDL: Your Honours : In view of this morning's
discussion, I feel that the trial has now entered into a
decisive phase, at any rate as far as concerns the defence.
I consequently feel myself obliged to make the following

 I should like to ask that the Court, at this point in the
trial, should, when examining the relevancy of the evidence
submitted by the defence, limit itself to the witnesses, and
postpone examination of the relevancy of documents until a
later time.  As reason for this I permit myself to point out
the following:

The Court issued a ruling regarding the submission of
evidence by the defence for the first time on 17 December.
In this ruling only witnesses and not documents were
referred to.

                                                  [Page 264]

A second decision is that of the 18th February in which the
following is said: "In order to avoid delay in securing the
attendance of witnesses and procuring of documents, defence
counsel shall . . ." and then follow the remaining contents
of the ruling.

I am of the opinion, your Honours, that the question as to
whether a document has relevancy or not can only be decided
when I have this document in my own hands; in other words,
when I am familiar with the precise contents of that
document. It is impossible in a summary procedure such as is
now being attempted, in which the admissibility of whole
books is supposed to be decided on, to pass fair judgement
as to whether a particular passage in a document has
relevancy or not. This question can be decided clearly and
definitely only if both the prosecution and the Tribunal
have the document in their hands, i.e., the passages which
the defence wishes to submit. I am convinced . . .

THE PRESIDENT: But, Dr. Seidl, I have stated twice this
morning that the question of the final admissibility,
whether of witnesses as evidence, or documentary evidence,
can only be finally decided when the document is actually
put in or when the witness is actually asked a question.
What we are now considering is whether the document has any
possibility of relevance and must, therefore, be searched
for, if necessary, or sent for.

DR. SEIDL: Yes. If I understand you correctly, Mr.
President, it is not necessary . . .

THE PRESIDENT: Dr. Seidl, the Tribunal thinks that you had
better deal with your witnesses and documents now, and we do
not desire to hear any further general argument on the
subject. We desire to hear you upon the documents and the
witnesses which you wish to call and produce.

DR. SEIDL: It is, then, a question of the documents I
already have in my possession and not of the documents which
I wish to obtain.

THE PRESIDENT: Yes, the documents which you are about to

DR. SEIDL: It is a question of all the documents, and not
simply the documents that must first be procured.

THE PRESIDENT: Well, we have before us your application for
certain witnesses and certain documents, and we wish to hear
you upon that application.

DR. SEIDL: Very well, but I must draw up a list by next
Wednesday for the defendant Frank, and I should like to know
whether those documents should be mentioned which I already
have in my hands.

THE PRESIDENT: Well, first of all you have better deal with
your witnesses in the same way that Dr. Stahmer did.

DR. SEIDL : The first witness that I intend to call is
Fraulein Ingeborg Berg, a former secretary of the defendant
Rudolf Hess.

SIR DAVID MAXWELL FYFE: My Lord, I had not seen this list
until a moment ago.

THE PRESIDENT: The witness he wants to call is Ingeborg
Berg, is that right?

SIR DAVID MAXWELL FYFE: If Dr. Seidl tells me that this lady
was a private secretary of Hess, it seems to me, prima
facie, reasonable that there should be a chance of
discussing the matter. As a general rule it seems to me
reasonable that a private secretary should be called who can
corroborate the matters with which the defendant was
dealing. I do not think any of my colleagues will disagree
on that point.

DR. SEIDL: My second witness is the previous Gauleiter of
the Foreign Organisation of the N.S.D.A.P., Ernst Bohle, who
is imprisoned here.

THE PRESIDENT: Dr. Seidl, you have not really adopted the
procedure which the Tribunal asked you to adopt. You have
not specified the relevance of the evidence which you wish
to produce. You have referred to some previous application.
The Tribunal has not got all these applications before it at

                                                  [Page 265]
moment and therefore we wish -to know in what respect the
evidence of Ingeborg Berg is relevant.

DR SEIDL: The witness Ingeborg Berg was the secretary of the
defendant Hess at his liaison offices in Berlin. She is to
make statements regarding the time when Hess began making
preparations for his flight to England, and what sort of
preparations they were.

She is further to testify as to what Hess's attitude was
toward the Jewish question in a particular case, namely, in
connection with the pogrom of 8 November, 1938.

THE PRESIDENT: Is she in Nuremberg?

DR. SEIDL: She is here, in Nuremberg.

THE PRESIDENT: You may deal with the second witness now, if
you like.

DR. SEIDL: The second witness is the previous Gauleiter of
the Foreign Organisation of the N.S.D.A.P., Ernst Bohle. He
is imprisoned in Nuremberg.

He is to testify whether the Foreign Organisation of the
N.S.D.A.P. developed any activity which might give it the
appearance of a fifth column.

SIR DAVID MAXWELL FYFE: That is one of our allegations
against the Auslands organisation, and therefore the second
witness does seem relevant. I make no objection.

DR. SEIDL: Walter Schellenberg is the third witness for whom
I may wish to apply. Whether I shall however do so I can
only judge after the Tribunal has given me the opportunity
to speak to this witness, who is here in Nuremberg. I do not
know whether the witness can give pertinent evidence
concerning the period in question, that prior to 10 May,
1941. I should like to avoid occupying the time of the
Tribunal with the hearing of a witness, if he cannot offer
pertinent evidence. I consequently ask the Tribunal first of
all for permission to speak to him for the purpose of
getting information.

THE PRESIDENT: Do you have anything to say about that, Sir

SIR DAVID MAXWELL FYFE: I understand that this is the
witness Schellenberg who was called for the prosecution.


SIR DAVID MAXWELL FYFE: I submit that it would be very
undesirable to have private conversations with witnesses
before cross-examination If Dr. Seidl wishes to cross-
examine the witness Schellenberg further, then he ought to
apply to the Tribunal to cross-examine him in open court.

THE PRESIDENT: Well, I think I remember that some of the
defendants' counsel asked to postpone the further cross-
examination of Schellenberg.

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