The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 2000/01/07

                                                  [Page 139]

DR. DIX:Q. Witness, it has been pointed out that I am
putting my questions too soon after your answers and that
you are replying to them too quickly.

MR. JUSTICE JACKSON: I should like to take up a matter
before the examination of the witnesses, if I may ask the
indulgence of the Tribunal.

I regret to say that this matter of printing documents has
proceeded in its abuses to such an extent that I must close
the document room to printing documents for German counsel.
Now, that is a drastic step, but I know of nothing less that
I can do and I submit the situation to the Tribunal.

We received from the General Secretary's Office an order to
print and have printed a document book number one for
Rosenberg. That document book does not contain one item in
its 107 pages that by any stretch of the imagination can be
relevant to this proceeding. It is violent anti-Semitism and
the United States simply cannot be put in the position, even
at the order, which I have no doubt was an ill-considered
one, of the Secretary of the Tribunal, of printing and
disseminating to the Press just plain anti-Semitism; and
that is what this document is. Now, I ask you to consider
what it is.

I should say it consists of two kinds of things: anti-
Semitism and what I would call, with the greatest respect to
those who think otherwise, rubbish; and this is an example
of the rubbish we are required to print at the expense of
the United States, and I simply cannot be silent any longer
about this.

  "The philosophic method suited to bourgeois society is
  the critical one. That holds true in a positive as well
  as a negative sense. The domination of purely rational
  form, the subjugation of nature, the freeing of the
  autonomous personality, all that is contained in the
  method of thinking classically formulated by Kant.
  Likewise, however, the isolation of the individual, the
  inner depletion of nature and community life, the
  connection with the world of form which is contained in
  itself and with which all critical thinking is

Now, what in the world are we required to print that for?

Let us look at some of the anti-Semitism.

Now, let us look at what we are actually asked here to
disseminate, Page 47 of this document book:

  "Actually, the Jews, like the Canaanites in general, like
  the Phoenicians and Carthaginians, represent a bastard

And it goes on largely upon that theme. Then it proceeds:

  "The Jews are arrogant in success, obsequious in failure,
  shrewd and crooked wherever possible, greedy, of
  remarkable intelligence, but nevertheless not creative."

                                                  [Page 140]

I do not want to take this Tribunal's time, but last night
we received an additional order to print 260 copies more of
this sort of thing, and I have had to stop the presses; and
we cannot accept the duty of printing this stuff unless it
is reviewed by the Tribunal.

Most of this book, as far as we have been able to check it,
has already been rejected by the Tribunal; and nobody pays
the least attention to the Tribunal's rejection, and we are
ordered to print. Now, with the greatest deference, I want
to say that the United States will print any document that a
member of this Tribunal certifies, but we can no longer
print these things at the request of the German counsel nor
on the ill-considered directions which we have been
receiving.DR. THOMA (counsel for defendant Rosenberg): At
the moment I want merely to explain that on 8th March, 1946,
I was expressly given permission by the Tribunal to quote
excerpts from philosophical books in my document book.

THE PRESIDENT: Yes, Dr. Thoma.

DR. THOMA: Consequently, I have based my work on the
assumption that Rosenberg's ideology is an offspring of the
so-called new Romantic philosophy and have quoted
philosophical excerpts from serious new Romantic
philosophical works, works which have been recognised by
science.Secondly, your Honours, I have earnestly endeavoured
not to submit any anti-Semitic books. What has just been
read to me must be simply mistakes in translation. I have
quoted the work of a famous evangelical theological teacher,
Heman-Harling; and secondly, I have quoted a work of a
recognised Jewish scholar, Isma Elbogen; and, thirdly, I
have quoted from an excerpt from the periodical
"Kunstschatz," written by a Jewish university professor,
Moritz Goldstein.I have deliberately refrained from bringing
anti-Semitic propaganda into this court-room. I request,
therefore, that the documents quoted by me be investigated
to see whether they are really trash and literary rubbish.I
still maintain that the works which I have quoted were
written by American, English and French scholars, recognised
scholars, and that the quotations which Mr. Justice Jackson
has just read about the bastard race, etc., come, as far as
I know, from non-German scholars. But I should have to look
at that once more, At any rate, may I ask the Tribunal that
my collective excerpts be investigated to see whether they
are in any way non-scientific or not pertinent.THE
PRESIDENT: Mr. Justice Jackson, the Tribunal thinks that
there must have been some mistake in sending to the
translating division this book of documents without their
having been presented first to counsel for the prosecution.
The Tribunal made an order some time ago, saying that
counsel for the prosecution should have the right to object
to any document before it is sent to the translating
department.Some difficulty then arose because documents had
been mostly in German. There was a difficulty about counsel
for the prosecution making up their minds as to their
objections until they had been translated. That difficulty
was presented to us a few days ago; I think you were not in
court at the time, but no doubt other members of the United
States counsel were here. We had a full discussion on the
subject, and it was then agreed that counsel for the
prosecution should see counsel for the defence and, as far
as possible, discuss with them and point out to them the
documents which counsel for the prosecution thought ought
not to be translated, and, in case of disagreement, it was
ordered that the matter should be referred to the Tribunal.
So that, so far as the Tribunal is concerned, it has done
everything that it can to lighten the work of the
translating division. Of course, in so far as documents have
been presented to the translating division for translation,
which the Tribunal had already denied, that must have been
done by mistake because the General Secretary's office no
doubt ought to have refused to hand over to the translating
division any document which the Tribunal had already denied.
But the general principles which I have attempted to explain
                                                  [Page 141]
seem to the Tribunal to be the only principles upon which we
can go in order to lighten the work of the translating
division. That is to say, that counsel for the prosecution
should meet counsel for the defence and point out to them
what documents are so obviously irrelevant that they ought
not to be translated.MR. JUSTICE JACKSON: Well, if your
Honour please, I do not think it is a mistake. It arises
from a fundamental difference which this Tribunal has not, I
think, made clear.

What the issues here are: Counsel says that he thinks he
should try the new Romanticism of Rosenberg. We are charging
him for the murder of four or five million Jews. The
question here is one of ideology. The only purpose in ever
referring to the anti-Semitic sentiments is the motive.
There is no purpose here in trying the question of anti-
Semitism or the superiority of races, the fundamental
difference in viewpoint. They believe - and, of course, if
they can try this issue with this Tribunal as a sounding
board, it forwards their purpose - they believe in trying
that issue.The first thing we get is this book with the
order to print it. We cannot tell when they are going to
present something in the document room. I simply must not
become a party to this spirit of anti-Semitism. The United
States cannot do it, and the Tribunal's directions to
counsel are simply being ignored. That is the difficulty
here.THE PRESIDENT: I do not know if you have in mind the
Order which we made on 8th March, 1946, in these terms:"To
avoid unnecessary translation, defence counsel will indicate
to the prosecution the exact passages in all documents which
they propose to use, in order that the prosecution may have
an opportunity to object to irrelevant passages. In the
event of disagreement between the prosecution and the
defence as to the relevancy of any particular passage, the
Tribunal will decide what passages are sufficiently relevant
to be translated. Only the cited passages need be
translated, unless the prosecution require the translation
of the entire document.Now, of course, if you are objecting
to that ruling on principle, well and good, but the ruling
seems to the Tribunal, up to the present at any rate, to be
the best ruling that can be laid down, and we reiterated it
after full discussion a very few days ago.MR. JUSTICE
JACKSON: I am calling your Honour's attention to the fact
that your Honour's order is not being observed and that we
are being given these documents to print without any prior
notice. The boys in the press-room are not lawyers; they are
not in the position to pass on these things. I do not have
the personnel. My personnel, as this Tribunal well knows, is
reduced very seriously. I cannot undertake, in the press-
room here, after an order comes from the General Secretary's
office, a review of what can be done.THE PRESIDENT: Well,
but did you ...

MR. JUSTICE JACKSON: The order is not being carried out;
that is the difficulty.

THE PRESIDENT: You mean that none of these documents were
submitted to the counsel for the prosecution.

MR. JUSTICE JACKSON: The documents were not submitted to
counsel for the prosecution. They came to the press-room
with an order to print from the General Secretary's office.
That is what I am arguing, a grievance; one I shall have to
remedy. We are in the very peculiar position, your Honour,
of being asked to be press-agents for these defendants. We
were ordered to print 260 copies of these stencils that I
have. The United States cannot be acting as press-agents for
the distribution of this anti-Semitic literature which we
have protested long ago was one of the vices of the Nazi
regime, particularly after it has been argued upon and has
been denied by the Court. This, it seems to me, is a
flagrant case of contempt of court, to put these documents
through after the Tribunal has ruled on them and ruled out
this whole document book of Rosenberg.
                                                  [Page 142]
THE PRESIDENT: Certainly, so far as these documents have
been denied, they ought never to have been submitted to the
translating department. Might not the Tribunal hear from Sir
David Maxwell Fyfe, because he was here on the previous
occasion, the last occasion that we dealt with this
subject?SIR DAVID MAXWELL FYFE: May it please your Lordship,
my understanding of the matter is that the Rosenberg
documents had been processed - that was what we were
informed - before our last discussion of the matter, and I
therefore suggested to the Tribunal that the practical
application of the procedure should begin with the documents
of the defendant Frank. That is what I said to the
Tribunal.THE PRESIDENT: Then my recollection is that, after
we made this rule of 8th March, 1946, counsel for the
prosecution - I think all four prosecutors, and I rather
think the document came in signed by the United States, but
I am not certain of it - pointed out that there were great
difficulties in carrying out this ruling of 8th March,
because of the difficulty of counsel for the prosecution
making up their minds about what documents were irrelevant,
having regard to the fact that they had to be translated for
them to do it. Is that not so?SIR DAVID MAXWELL FYFE: That
difficulty arose with Dr. Horn over the Ribbentrop

THE PRESIDENT: But a written application was made to the
Tribunal to vary this rule of 8th March, 1946, and it was
then after that that we had the subsequent discussion in
open court when we came to the conclusion that we had better
adhere to the ruling of 8th March, 1946. And I see from
Rosenberg that the document - these documents - had been
processed already beforehand.

SIR DAVID MAXWELL FYFE: Since our last discussion, of
course, we have been trying to get this procedure going. Dr.
Dix has met Mr. Dodd and me on the Schacht documents, and I
understand that other learned defence counsel are making
arrangements to meet various members with regard to theirs.
But before this time, before the matter arose sharply on the
Ribbentrop documents, there hadn't been any discussion with
counsel for the prosecution. That is the position.

THE PRESIDENT: But what I am pointing out is that that was
because the prosecution was not carrying out the rule of 8th
March, 1946. It may have been impossible to carry out, but
it was not carrying it out.

SIR DAVID MAXWELL FYFE: I don't know exactly how your
Lordship means, "The prosecution was not carrying it out."

THE PRESIDENT: Both the prosecution and the defence, I
suppose, because the application which came to us after the
ruling of 8th March, 1946, was made on behalf of the
prosecution, who had such difficulties in getting
translations for the documents that it proposed another

SIR DAVID MAXWELL FYFE: I am sorry, my Lord, if we haven't
carried it out. It is the first time that anybody suggested
this to me....

THE PRESIDENT: I don't mean to criticise you.

SIR DAVID MAXWELL FYFE: We all have taken immense trouble,
everyone co-operated in every way. I wasn't aware that we
were at fault; I am very sorry if we were.

THE PRESIDENT: I don't mean that, Sir David, but I think
there was a difficulty in carrying this out, and I think
there was a proposal that the rule should be varied. I will
look into that and see whether I am right about it, I
remember seeing such an application and then we had the
subsequent discussion in open court in which we decided to
adhere to this rule of 8th March, and no doubt this
difficulty has arisen, as you pointed out, because of the
Rosenberg documents having been processed before.

Probably the best course would be now ...

(Brief conference on the Bench.)

Mr. Justice Jackson, wouldn't the best course be for you to
object in writing to all the documents which you object to,
and then they will be dealt with by the Tribunal after

                                                  [Page 143]

MR. JUSTICE JACKSON: But, your Honour, the Tribunal has once
rejected the documents, and yet we get an order to print.
The Tribunal's orders are not being observed, and - I don't
want to criticise counsel - we have had no opportunity to
pass on these. These stencils that I stopped running last
night are not anything that has been submitted to us. They
have no possible place in the legitimate issues of this
Tribunal, and we will get nowhere talking to Dr. Thoma about
it. He thinks their philosophy is an issue.

What I think must be done here, if we are going to get this
solved, is that the Tribunal - if I may make a suggestion,
which I do with great deference; I may be a biased judge of
what ought to be done; I never pretended to complete
impartiality - that the Tribunal name a Master to represent
it in passing these things. We won't finish this by
discussion between Dr. Thoma and anybody I can name. My
suggestion is that an official pass on these documents
before they are translated. If the Master finds a doubtful
matter he can refer it back to you. We shouldn't be in the
position either of agreeing or of disagreeing with them in
any final sense, of course. I realise it is too big a burden
to put on the Tribunal to pass on these papers in advance
and too big a burden on the United States to keep printing
them. Paper is a scarce commodity today. Over 25,000 sheets
have gone into the printing of a book that has been
rejected. I think there is no possible way except that a
lawyer with some idea of relevance and irrelevance represent
this Tribunal in passing on these things in advance, rather
than leaving it to counsel.

I wouldn't even venture to sit down with Dr. Thoma, because
we start from totally different viewpoints. He wants to
justify anti-Semitism. I think it is not an issue here. It
is the murder of Jews, of human beings, that is an issue
here, not whether the Jewish race is or is not liked by the
Germans. We don't care about that. It is a matter of
settling these issues.

COLONEL POKROVSKY: With the Tribunal's permission, I would
like to add a few words to what Mr. Jackson has said.

I do not wish to criticise the counsel either, but the
Tribunal has already said that there may possibly be a
mistake. And I would like to draw the attention of the
Tribunal to the fact that this mistake has taken place too
often. I will permit myself to remind you about the
documents, in connection with the Versailles Treaty, which
were rejected by the Tribunal in the most decided manner as
not relevant; the Tribunal will remember also that a
considerable amount of time was spent in listening to the
reading of the documents presented by Dr. Stahmer and Dr.
Horn. And I would like to remind the Tribunal about another
fact, when another decision of the Tribunal was violated.
Perhaps it was done by mistake; perhaps not. It took place
when one of the documents which was presented by Dr. Seidl
was published in the papers before it was accepted by the
Tribunal as evidence. And it seems to me that it would be
very useful if the Tribunal could, for the purpose of saving
time, guarantee more effectively that the rules set out by
the Tribunal should be obeyed not only by the prosecution,
who always follow them carefully, but also by the defence

THE PRESIDENT: Yes, Dr. Thoma?

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