The Nizkor Project: Remembering the Holocaust (Shoah)

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DR. DIX: I believe, without wishing to criticise the legal
value of the statements which we have heard here; that there
has been some confusion of ideas. We must keep the
distinction quite clear in our minds. (1) Is a piece of
evidence - and that applies to witnesses as well as
documents - relevant? (2) Is a piece of evidence as such
useful? (3) Is a piece of evidence cumulative and therefore
to be rejected?

If the Tribunal rules a piece of evidence not relevant, nor
useful nor cumulative, then it must refuse the application
for it at this stage in the proceedings. On the other hand,
the question of the credibility of a piece of evidence -
that is, whether the answer of a witness is to be believed
or not, whether the contents of a document may be considered
credible - whether expositions set forth in a White Book,
for instance, are to be believed or not believed - that, in
my opinion, is a question which can be decided only when the
evidence in question has been brought into the proceedings
and the court has taken judicial notice of it and is able,
when freely evaluating the evidence - a course which is open
to the Tribunal - to pass judgement on its credibility or
otherwise. For that reason I think that at the present
moment there seems to be no cause to say, for instance, that
this document cannot be used because it is part of a White
Book published by the German Government. No one will deny
that a White Book, that is, a publication - an official
publication - issued by any government, can be useful and
relevant evidence. Whether the passage read and introduced
into the proceedings is such that the Tribunal can give it
credence, is a question that can be decided after the
evidence in connection with the White Book has been
introduced into the proceedings and the Tribunal has taken
official notice of it.

Now, I turn to the question of relevancy and effectiveness.
The representative of the British prosecution has stated
here that the reports sent by the German ambassadors to
their Foreign Minister are, per se, not useful. At least,
that is the

                                                  [Page 302]

way I understood him. They will only be admitted if the
prosecution wishes to use them. In other words, they are
only to be admitted if the prosecution wishes to use them to
the detriment of the defence. I do not think that this point
of view can be maintained. The representative of the British
Delegation cited Article 21 of the Charter in this
connection. Article 21 of the Charter has nothing whatsoever
to do with this question. Article 21 of the Charter merely
states, so far as I remember it - I do not have the Charter
at hand, but I believe I know the contents of it very well -
that documents referring to the investigation by the
victorious Powers of war crimes committed in their own
countries do not have to be enumerated, but may merely be
submitted to the Tribunal for judicial notice. This
question, however, has nothing whatsoever to do with the
question of the usefulness or relevancy of a report
submitted at any time by a German ambassador to his Foreign
Office. Whether this report has been admitted or is to be
admitted, can be decided according to whether the Tribunal
considers relevant the subject which it concerns and which
it is to prove, if the fact which is to be proved by it is
considered relevant by the Tribunal and is brought by one or
both parties correspondingly. Then, in my opinion, the
Ambassador's report should be admitted, and after its
admission the Tribunal can, by freely weighing the evidence,
consider the value of the evidence, that is, its credibility
- and, moreover, its objective as well as its subjective
credibility. So much for the clear-cut differentiation of
the concepts of relevancy and usefulness and for the concept
of the value of evidence, that is, the objective and
subjective credibility of evidence.

Now, with regard to the question of the cumulative. It is
certain that every jurist in this court-room agrees that
cumulative evidence should not be admitted, but the question
of whether evidence is cumulative may in no circumstances be
judged formally; so to speak, mechanically. I can well
imagine that a question with the same wording as one that
has already been put need not necessarily be cumulative, for
reasons which I will enumerate in a moment, and that a
question which in form does not resemble one already put may
nevertheless be cumulative because it requires an answer
from the witness regarding the same evidence, but expressed
in different words. The fact that a question may be
identical in wording with one which has already been put
does not necessarily mean that it is cumulative, as shown by
the old proverb "Si duo faciunt idem non est idem." If, for
instance, I ask a witness who bears the stamp of a fanatical
adherent of the Nazi regime for his subjective impression of
something and then put the same question to a witness who is
known to be a fanatical opponent of the Nazi regime, then
these two questions are certainly not cumulative, for it is
of paramount importance if the Tribunal is to be in a
position to form an opinion and make a decision, to find out
whether the same impression is produced on two worlds, so to
speak - on two diametrically opposed persons. Therefore one
has to take the witness into consideration in judging
whether a question is cumulative or not. A further example
of the fact that a question which is exactly similar to one
previously put need not be cumulative would be, for
instance, if I put the question to the defendant and then to
a witness who is not concerned. In saying this I wish in no
way to disparage the evidence given by the accused under
oath. That is far from being my intention. In principle, the
testimony of both the witnesses is alike. There is, however,
a great difference - in order not to take too long I will
cite only one example - whether when investigating some
phase of the defendant's inner life about which he himself
is best informed, I question a witness who had an impression
of this incident concerning the defendant, or whether I
question the defendant himself for whom this inner
impression is a part of the psychological background of his

I should like to stop at this point, in order not to take up
too much of the Tribunal's time with theoretical
expositions. My intention in making this statement was only
to request the, High Tribunal in making its decision - I
repeat - in regard to relevancy and usefulness, to make a
clear distinction as to the value to be attached to
subjective evidence after it has been admitted, and to ask

                                                  [Page 303]

Tribunal, when considering whether evidence is cumulative,
not to be guided solely by the outward
form of the question or the document, but to investigate
whether it would not be in the interests of truth and give a
deeper insight into the case to put the same question to
different people, or to have the same question confirmed -
or not confirmed - by written statements by various people.

I may ... I have a ... My conscience is uneasy about this
academic exposition, but I hope that the clarification which
I have tried to make, and in which I may perhaps have
succeeded to some extent, may help to shorten later stages
of the proceedings to some extent.

THE PRESIDENT: The Tribunal would like to know how long you
think you are going to be over these documents, because we
are getting further and further behind. How long do you
anticipate you will be? Have you made up your mind yet what
documents you are prepared to withdraw, if any?

DR. HORN: Mr. President, I should need about two more hours
- that is without objections on the part of the prosecution,
and I believe that in that time I can finish my entire
presentation, including the reading of the most important
passages which are limited to a very few documents.
Therefore, without objections, about two hours.

THE PRESIDENT: You have heard the prosecution's objections.
We have heard them. We will consider them, and we will
consider any answer that you make to them, but we do not
desire at this stage, when we have all these other
defendants' cases to be heard, that you should go into these
documents in detail now and read them, and we hope that you
will not think it necessary to read
from these documents after you have answered the objections
of the prosecution to certain of the documents.

DR. HORN: I have the intention ...

THE PRESIDENT: Have you the idea that you had finished your
argument in answer to the prosecution's objections or not?
Did you intend to deal further with the admissibility of any
of these particular documents or not?

DR. HORN: In accordance with the wishes expressed by the
Tribunal I intend to submit these documents in groups, with
a brief connecting text, and in each group where the
prosecution has made objections, to add a few remarks on the
points raised. I do not intend to do any more.

THE PRESIDENT: Dr. Horn, you see, the position is this. The
prosecution has objected to certain documents, on certain
grounds, and we want to give you a full opportunity to
answer those objections. When you have made your full answer
to those objections, we think it will be appropriate we
should adjourn and decide upon those objections and upon
your arguments. Do you see? That we should rule - that,
after you have given your answer to the objections, we
should adjourn and decide which of the documents we rule to
be admissible in evidence.

DR. HORN: If the Tribunal intends to give its ruling after I
have taken my position on the objections; of the
prosecution, then I ask that I be given an opportunity, for
to begin with I would like ...

THE PRESIDENT: Wait a moment, Dr. Horn. Because, you see, it
is 5 o'clock, and we shall not be able to conclude it

Dr. Horn, if you could conclude your argument in answer to
the questions of principle which have been raised by the
prosecution, now, we think it would be the most convenient
course if you could do it in a fairly short time. I mean,
you have heard what the prosecution says about these various
groups, and it would be more convenient, we think, if you
could answer that in the space of a quarter of an hour now.

DR. HORN: First of all, I would like to refer to documents
numbered 48 to 61. In regard to these I can only take the
following position.


DR. HORN: No, 48 to 62. Perhaps I may again use these pages
of the prosecution, with their objections, as a basis.
Documents 48 to 61 were rejected as irrele-

                                                  [Page 304]

vant, but these documents deal with rearmament and
preparation for war by the opposite side. I can only arrive
at the basic motives animating Hitler and Ribbentrop by
contrasting the German evidence with the evidence given by
the other side. I cannot judge of the illegality of an
action unless I know all the facts. Therefore, I consider
these documents highly relevant.


DR. HORN: The next group of decisive importance consists of
the documents dealing with the Polish minority problem. The
representative of the prosecution has said that by the
German-Polish agreement of 5th November, 1937, the minority
problem was sanctioned by both countries. That is, all
violations of International Law in regard to minority
questions would be considered a closed chapter if they had
occurred before that year. This view is certainly not
correct, because one agreement cannot sanction the violation
of a prior agreement. Moreover, during the negotiations for
the 1934 pact between Germany and Poland it was expressly
agreed as I can prove by means of these documents, that
after a general political agreement had been made, the
minority question and that of Danzig and the Corridor would
be settled.

These questions were expressly held in abeyance pending a
further settlement by agreement, and although no such
settlement of the two questions was made, the documents
dealing with the violation by the Poles of International
Law, with regard to minority pacts, cannot be rejected on
account of this agreement for regulating this question.

The second objection for this group is the fact that the
minority problem is call irrelevant. Previously I stated
briefly that the British Prime Minister Chamberlain himself
realised the need for regulating this problem. I will submit
this document, too; it is No. 200 in my document book. All
the political circles concerned thought that the solution
must be formed for this question; and I therefore consider
it relevant. I ask the Tribunal therefore to admit the
documents referring to it.

These documents cannot be rejected as cumulative, as was
done here, for, on the strength of these documents I wish to
prove that these minority pacts have been repeatedly
violated since 1919, and I submit documents from the
International Tribunal of the Hague and the League of
Nations at Geneva showing that these violations took place
during a period of over twenty years.

I accept the objections made by the Soviet delegation to
documents number 286 to 289; and I withdraw documents 286 to

Since the Tribunal recently objected to the book "America in
the Battle of the Continents" I also withdraw documents
presented under No. 290, 1 to 5. I have also referred tot
hat book under several other numbers and I withdraw also all
those numbers which refer to the book "American in the
Battle of the Continents." As for the Embassy reports, I
again refer to my statement and the basic statements made
here a moment ago by my colleague Dr. Dix. I am convinced
that, on principle, and on the strength of the legal
arguments adduced and also in view of the fact that the
prosecution has used such reports extensively, the defence
should also be granted the privilege of referring to these
reports, especially as they formed the foundation on which
German political opinion was based.

I shall not be able to dispense with the files of the French
General Staff either for the reasons I have stated. It has
been said that the documents 221 to 268 are irrelevant. They
are not irrelevant, because we had neutrality pacts with
those countries, and in the neutrality pacts it was agreed
that Germany would respect their neutrality as long as the
other side also respected it. As it would now be possible to
prove that the other side did not respect this neutrality,
the proof of whether a war of aggression against these
countries by Germany..

THE PRESIDENT: The point that M. Champetier de Ribes was
making was that France was out of the war by 1940. Therefore
documents which were drawn up

                                                  [Page 305]

by the French General Staff in 1940 had no relevance in
1941. Is that not so? That is the point that he was making.

DR. HORN: Yes. However, the fact that breaches of neutrality
were committed by France and were known to the German
Government at the time, alters the legal situation
completely. You cannot say that Germany waged an aggressive
war against these countries when we knew through our
Intelligence Service that our opponents intended to occupy
these countries, and did in fact do so, by sending out staff
officers. Thus it was the other side which was guilty of
violation, and the files which have been found have only
confirmed the intelligence reports submitted to us at the
time; I say, at the time.

Therefore, you cannot accuse Germany of violating the
neutrality pact in these cases. I would like to ask the
Tribunal, therefore, to admit those files for the reasons
stated. With reference to the other documents, I ask to be
permitted to make my statement when I submit the documents
to the Tribunal in the presentation of evidence?

THE PRESIDENT: You see, Dr. Horn, we want to rule upon it
when we have heard your arguments; we do not want to have to
rule again over every document. We want you to take them in
groups, in the way the prosecution has, so that we may make
up our minds and rule.

DR. HORN: These are the main objections which I have to make
to the representatives of the prosecution. I ask the
Tribunal once more to differentiate between considerations
of principle raised by Dr. Dix, and the factual
considerations raised by myself with regard to the
individual groups?

THE PRESIDENT: Very well, we will adjourn now.

(The Tribunal adjourned until 3rd April, 1946, at 1000 hours.)

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