The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/20

M. DUBOST: May I remind the Tribunal that the documents
which we rejected were not rejected, in the first place, as
useless, but as not presenting sufficient guarantee as to
their origin, as to the conditions under which we obtained
the man das to their probative value.

The Tribunal will no doubt remember that a certain number of
these documents were rejected by the Tribunal itself. Those
which we did not consider are of the same character as those
documents which were rejected. We did not submit them
because we could not tell you where, when and how they had
been discovered. For the most part they are documents that
fell into the hands of combat troops in battle, and under
the rules of jurisprudence do not offer sufficient guarantee
to warrant retention.

In so far as they are still in my possession I am ready to
communicate them to defence counsel, it being obvious that
they will not attach to them any higher merit, any higher
value than I did.THE PRESIDENT: That may very well be. I
think that all Dr. Nelte wants is to see any documents which
you have brought, to learn whether he can find
                                                  [Page 293]
anything in them that he thinks may help the case of the
defendant for whom he appears, and I understand you would
not have any objection to his doing that.
M. DUBOST: I would only answer the defence counsel that some
of those documents have been rejected by your Tribunal when
I presented them.

THE PRESIDENT: Well, of course, it would not apply to
documents which have been rejected by the Court.

Very well. We will not decide the matter now. We will
consider it.

DR. NELTE: Would the Tribunal announce its decision
regarding the first question which I brought up, namely,
whether it is sufficient that I refer to documents which
have been presented by the prosecution without submitting
them myself.

THE PRESIDENT: Yes, Sir David?

SIR DAVID. MAXWELL FYFE: On that point I would like to
support Dr. Nelte's suggestion. If a document has already
been put in, I should have thought it was right and
convenient that counsel for the defence could comment on it
without putting it in again and should have full right of

THE PRESIDENT: I think that I have said on a variety of
occasions that any document which has been put in evidence,
or a part of which has been put in evidence, can, of course,
be used by the defence in order to explain or criticise the
part that has been put in. It maybe that, as a matter of
informing the
Tribunal as to the document, it will be found necessary to
have part of the document, which has not been put in
evidence, put in now in order that it may be translated.

SIR DAVID MAXWELL FYFE: I do not know whether it would be
convenient if I indicated to Dr. Nelte the views of the
prosecution on his list of documents, or whether he would
like to develop it himself. I can quite shortly do that if
it would be convenient.

THE PRESIDENT: I think it would shorten things if you would.

SIR DAVID MAXWELL FYFF: A considerable number of the
documents in the list fall into that category which has just
been mentioned. Documents 3 to 9, 17 and 29, 30 and 31 all
appear to be in, and therefore Dr. Nelte may comment in
accordance with your ruling.
Then there are a number of documents which are affidavits,
either of defendants or intended witnesses: documents 12,
13, 22, 23, 24, 25 and 28.
The Tribunal may remember that in the case of the witness
Dr. Blaha, my friend, Mr. Dodd, adopted the practice of
asking the witness, "Is your affidavit true" and then
reading the affidavit to save time. The prosecution have no
objection to Dr. Nelte's pursuing that course, should he so
desire, but, of course, where a witness is going to be
called as a witness, he will, in the submission of the
prosecution, have to verify his affidavit on oath.

THE PRESIDENT: One moment. You mean that, if the witness is
here, you have no objection to Dr. Nelte's reading the
affidavit and the witness being then liable to cross-

SIR DAVID MAXWELL FYFE: The witness will say, "I agree; I
verify the facts that are in my affidavit."


SIR DAVID MAXWELL FYFE: It might save considerable time in
the examination-in-chief, and we should all be prepared to
co-operate in that.

THE PRESIDENT: Then, is Dr. Nelte agreeable to that course?
Is that what he means?

DR. NELTE: Entirely!

THE PRESIDENT: Possibly, Sir David, if the affidavit were
presented to the prosecution, they might be able to say that
they did not wish to cross-examine. That would save the
witness being here or being brought here.

SIR DAVID MAXWELL FYFE: It might be in the case of Dr.
Lehmann. I think all the other cases are either defendants
or witnesses with regard to whom there are certain points
which the prosecution would like to ask.

                                                  [Page 294]
Then there are three documents to the use of which there are
no objections.
18, 26 and 27.

That leaves a number of documents as to the use of which I
am not quite sure at the moment, but it may be that Dr.
Nelte will explain how he wishes to use them, and that may
remove the difficulty of the prosecution. If the Tribunal
will be good enough to look at 1 and 2: 1 is an expert's
opinion on State laws concerning the Fuehrer State, and the
importance of the Fuehrer Order, and Document 2 is Fuehrer
Order, No. 1.

If it is desired to use these so as to controvert Article 8
of the Charter, the prosecution will object.

That is a question of superior orders.


SIR DAVID MAXWELL FYFE: If they are only used to explain the
background as a matter of history, that may be a different

Now, the next one is Document 10 - the need for a Ministry
of Rearmament, taken from ....

THE PRESIDENT: Even so, Sir David, in your submission, ought
we to accept the opinion of an expert on such a point?

SIR DAVID MAXWELL FYFE: No, your Honour. By no means. I am
afraid that my second remark really applied to the order of
the Fuehrer. That might be used as a background or it might
be used for purposes of mitigation or explanation of how a
thing took place, but I respectfully agree that the expert's
opinion on State laws cannot be used with regard to the
jurisdiction of the Tribunal. Of course, the law of any
other State may be a question of fact as far as the Tribunal
is concerned just as it would be a question of fact in an
English court. What is the law of another State? As I say, I
want to reserve emphatically the position of Article 8 with
regard to these two documents.


SIR DAVID MAXWELL FYFE: Now, Documents 10 and 11 deal with
rearmament in other countries. I do not want to prevent the
use by the defence of illustrations, but again I reserve the
position, most emphatically, that rearmament in other
countries cannot be an excuse for aggressive war and would
be irrelevant on that point.

Now, 15 and 16 refer to books by Major-General Fuller and
Major-General Temperley, who are both ex-officers, who were
journalists during this period. As far as any question of
fact that is stated in these books, if Dr. Nelte will let us
know what the passage is, we shall see whether we could
admit it. but the general views of Major-General Fuller and
Major-General Temperley we would submit to be irrelevant.

Then, 19, 20, and 21 are books about Austria. Again the
prosecution reserves the position that the earlier state of
opinion in Austria with regard to an Anschluss is irrelevant
when considering the question of the aggressive action in
breach of the Treaty of 1936 which took place in 1938. I
think, my Lord, that I have now dealt with all the documents
and, as I say, they fall into these four groups; with regard
to three of these there is nothing really between us in
principle and, with regard to the fourth, the prosecution
wishes to reserve these various points which I have
mentioned. Again I want to make clear that the prosecution
does not object to Dr. Nelte's obtaining any of these books
for the purpose of preparing his case, but we wish the
defence to make clear, at the earliest opportunity, what
their position is with regard to their use.

DR. NELTE: With respect to the first three categories, the
prosecution agrees with me that I can confine myself to the
last category which begins with documents Nos. 1 and 2. One
of the fundamental questions of this trial, which at first
glance appears a purely legal problem, is the question of
the so-called Leader State (Fuehrerstaat) and Leader Order
(Fuehrerbefehl). This question has, however, important
actual significance here at this trial, and also a factual
importance. For
                                                  [Page 295]
instance, the defendant Keitel, as a result of his
particular position, was to the utmost degree affected by
this Leader State principle, and acted accordingly, as he
was continuously in personal contact with the incarnation of
this principle namely, Hitler. It will, however, I assume,
be possible to prove that Article 8 of the Charter is not
applicable here.

As to the Leader Order No. 1, Document No. 2, the Tribunal
itself will, upon hearing the order, be able to judge
whether it bears any relevance.

This order reads:

  "Leader Order No. 1 (from Keitel Document Book No. 1)
  (a) No one is to have any knowledge of secret matters
  which do not fall within his sphere.
  (b) No one is to obtain more information than he needs
  for the fulfilment of the task set him.
  (c) No one is to receive information earlier than is
  necessary for the duties assigned to him.
  (d) No one is to pass on to subordinates more secret
  orders or at an earlier date than is indispensable for
  the attainment of the purpose".

Document No. 1, that is, the expert opinion on the Leader
State and Leader Order, in connection with this Leader Order
No. 1, is to serve as proof for the fact that there can be
no question of conspiracy in the sense of the Indictment.
Therefore, I request the Tribunal to admit those two
documents as relevant. Documents No. 10 and No. 11, and also
to a certain degree, No. 16, are submitted as proof that the
principles which the defendant Keitel, as a soldier and a
German, considered to be important, namely, rearmament up to
a point of securing a respectable position for Germany among
the Council of nations, was not only required by the German
people, but also appreciated and approved of by important
persons abroad. This subject is to be proved by submission
of articles by a British, a French and an American author.
All three military men, who are held in high repute as
writers on military matters. Among these is the article
"Total War", by Major-General Fuller, my Document 15, as
well as the book by the British Major-General Temperley,
"The Whispering Gallery of Europe". Fuller, for instance,
writes in his article, i.e. :

  "It is nonsense to state that he (Hitler) wanted war. War
  could not bring him the rebirth of his nation. What he
  needed was an honourable, secure peace."

The point to be proved here is that any aggressive
intentions would of themselves be incompatible with the
pronouncements of Hitler and the leading Nazis, if one
believed in their sincerity.

The defendant believed in the sincerity of these
pronouncements, and to this end he referred to the opinion
of important persons abroad.

I think those are the documents to which the prosecution
raised certain objections.

THE PRESIDENT: You have not mentioned 19 to 21, which
documents are said to reveal a certain state of opinion in
Austria.DR. NELTE:: Yes. Those documents - Document 19, "The
Cultural and Political Importance of the Anschluss";
Document 20, "The Way Toward the Anschluss"; and the third,
"The Anschluss in the International Press," dated 1931, are
to prove that the defendant could assume, and was justified
in assuming, that the overwhelming majority of Austrian
people welcomed the Anschluss with Germany. These are
articles and memoranda of the Austro-German Peoples Union,
the chairman of which was the Social Democrat Reichstag
President Loebe.THE PRESIDENT: That concludes the documents,
does it not?DR. NELTE: I should like to make only one
additional application to the Tribunal, which refers to
documents which I have been unable to mention earlier, since
they were not submitted until the sitting of 22nd February.
I shall now submit this application. It refers to eleven
documents, all of which were presented during the Friday
sitting in order to prove the complicity of Keitel in the
destructions during the retreat, and in regard to forced
labour of prisoners-of-war, and

                                                  [Page 296]

civilian population. From the contents of these documents
submitted by the prosecution, it becomes apparent that,
according to evidence I have already offered, a large number
of the accusations of the prosecution are to be attributed
to the fact that every document which dealt in any way with
military matters was simply charged to the O.K.W. and

THE PRESIDENT: Dr. Nelte, as I understand it, all these
documents have already been put in evidence.


THE PRESIDENT: Well, then they fall into the category to
which Sir David agreed. They could be touched on by you.

DR. NELTE: That is correct.

THE PRESIDENT: There is no need to make any fresh
application in connection with them.

DR. NELTE: When I made this additional application I had not
yet received Sir David's consent. Besides this seems to me
to be a unique and particularly convincing case because, on
one day, eleven documents were submitted, all of which were
used as accusations against Keitel, but which all showed by
their contents that they do not apply to him or the O.K.W.

THE PRESIDENT: One moment. There is only one other thing
that I wanted to ask you. You asked at an earlier stage for
the evidence from Ambassador Messersmith and Otto Wettberg,
and in both cases the Tribunal granted you interrogatories.
I do not know whether you are withdrawing your application
in respect to those cases, or whether you have seen the
answers to the interrogatories.DR. NELTE: I have, in
accordance with the suggestion, sent those interrogatories
to Ambassador Messersmith as well as to Otto Wettberg.
Depending on the replies I shall receive from those two
witnesses, I shall or shall not submit them.THE PRESIDENT:
You have submitted the one for Otto Wettberg, haven't
you?DR. NELTE: Yes, but I have not received it back.

THE PRESIDENT: Very well. Would you explain a little bit
more what Exhibit No. 1 is going to be? It appears to be the
opinion of an expert witness on the meaning of the Fuehrer
precept. Is that what you intend?

DR. NFLTE: Yes. It is an article, in the field of
constitutional law, on the structure and significance of
what is known as Leader State - Fuehrerstaat.


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