The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: imt/tgmwc/tgmwc-05/tgmwc-05-46.06


Archive/File: imt/tgmwc/tgmwc-05/tgmwc-05-46.06
Last-Modified: 1999/10/05


DR. NELTE (Defence counsel for Keitel): Mr. President, I had
occasion during the recess to talk to my client, Keitel.
Before the recess, the French prosecutor had submitted as
evidence Document F-668, and an extract from a note from
Admiral Darlan, addressed to the French Ambassador Scapini.

The French prosecutor believes I presume from his words,
that he has proved by these documents that the agreements
between German generals and French troops who had laid down
their arms had not been kept. In view of the gravity of
these accusations I would be obliged to the French
prosecution if they would declare, with respect to this
document, first, whether these serious accusations of the
French Government had also been brought to the attention of
the German Government -

THE PRESIDENT: Document 668, is it?

DR. NELTE: Yes, 668.

THE PRESIDENT: Are you referring to Document F-668?

DR. NELTE: Yes, appendix 2.

THE PRESIDENT: It would be more convenient if you could
refer to the document by the usual document number. The
document I have is Document F-668, at the top of the
document.

DR. NELTE: On my document it has been inserted in pencil.

THE PRESIDENT: Is it dated 4 April, 1941?

[Page 292]

DR. NELTE: It has no date.

THE PRESIDENT: Will you hand it up?

(The paper was handed to the President.)

Yes, I follow now, What do you say about it?

DR. NELTE: The French prosecutor had concluded from this
document that the information contained in the document was
also proved. I would like to point out that it is an excerpt
from a note of Admiral Darlan, addressed to the French
Ambassador Scapini. In other words, it is not clear from
this document whether Ambassador Scapini had taken the
necessary steps with the German Government or, furthermore,
what reply was made by the German Government to this note.
For this reason I would like to ask the French prosecutor to
declare whether he can establish from his documents whether
these serious accusations were brought to the attention of
the German Government, and secondly, if so, what reply was
made by the German Government. Since these documents of the
Armistice Commission are in possession of the victorious
powers, neither the defendant nor the defence can themselves
produce them.

(M. Dubost stepped before the microphone.)

THE PRESIDENT: Perhaps the most convenient course would be,
if you wish to say anything about the objection which Dr.
Nelte has just made, for you to say it now. As I understand
it, that objection is that this Document, 668, is a note by
Admiral Darlan complaining that certain French troops were
surrendered on the terms that they were not to be made
prisoners-of-war, but were afterwards sent to Germany as
prisoners-of-war. What Dr. Nelte asks is, was that matter
taken up with the German Government, and if so, what answer
did the German Government give? That seems to the Tribunal
to be a reasonable request for Dr. Nelte to make.

M. DUBOST: The reply was given, Mr. President, through the
reading of Ambassador Scapini's letter addressed to
Ambassador Abetz.

THE PRESIDENT: My attention is drawn to the fact that the
two documents to which you refer are dated 4 April. The
document to which Dr. Nelte refers is a subsequent document,
namely, 22 April. Therefore it does not appear from
documents which were anterior to the document of 22 April as
to what happened afterwards.

M. DUBOST: Mr. President, I myself am not aware of this.
These documents were forwarded to me by the Prisoners-of-War
agency. They are fragmentary archives forwarded by an
official French agency, which I will inform of the
Tribunal's wish.

THE PRESIDENT: Perhaps it should be investigated and found
out whether the matter was taken up with the German
Government and, if so, what answer the German Government
gave.

M. DUBOST: I shall do so, Mr. President.

THE PRESIDENT: Not at the moment but in the course of time.

M. DUBOST: I shall have to apply to the French Government in
order to find out whether in our archives there is any trace
of a communication dated later than 26 April from the French
Government to the German Government.

THE PRESIDENT: In the event of your not being able to get
any satisfactory explanation, the Tribunal will take notice
of Dr. Nelte's objection, or criticism, rather than of the
document.

It is pointed out to me, too, that the two earlier documents
to which you are referring are documents addressed by the
Ambassador of France to M. Abetz, the Ambassador of Germany,
and it may be, therefore, that there is a similar
correspondence in reference to Document 668 here in the same
file, which is the file of which the French Government
presumably has, or might have copies.

                                                  [Page 293]

M. DUBOST: It is possible but that is only a hypothesis,
which I do not want to expound before the Tribunal. I prefer
to produce the documents.

THE PRESIDENT: I quite follow; you cannot deal with it for
the moment. As to the other matter which is raised by Dr.
Exner; the Tribunal consider that Document 532-PS should be
struck out of the record in so far as it is therein. If the
United States and French prosecutors wish the document to be
put in evidence at a future date, they may apply to do so.
Similarly the defendant's counsel, Dr. Exner, for instance,
if he wishes to make any use of the document, is of course
at liberty to do so.

In reference to the other matters which Dr. Exner raised, it
is the wish of the Tribunal to assist defendants' counsel in
any way possible in their work, and they are, therefore,
most anxious that the rules which they have laid down as to
documents should be strictly complied with, and they think
that copies of the original documents certainly should
contain anything the original documents themselves contain.

This particular Document - 532-PS - as a copy, I think I am
right in saying, does not contain the marginal note in the
script which the original contains. At any rate it is
important that copies should contain everything which is on
the originals.

Then there is another matter to which I wish to refer. I
have already said that it is very important that documents,
when they are put in evidence, should not only be numbered
as exhibits, but that the exhibit number should be stated at
the time, and also even more important, or as important,
that the certificate certifying where the document comes
from should also be produced for the Tribunal. Every
document put in by the United States bore upon it a
certificate stating where it had been found, or what was its
origin, and it is important that this practice should be
adopted in every case.

The only other thing I want to say is that it would be very
convenient, both to defendant's counsel and to the Tribunal
too, that they should be informed at least the night before
of the programme which counsel proposes to adopt for the
following day. It is true, as was said, that perhaps that
has not been absolutely regularly carried out by the
prosecutor on all occasions, but it has been done on quite a
number of occasions within my recollection, and it is at any
rate a most convenient practice and one which the Tribunal
desires should be carried out. They would also be glad to
know, above all, what you, M. Dubost, propose to address
yourself to tomorrow, and would be very grateful to know how
long the French prosecutors anticipate their case will take.
They would like you before you finish, or at the conclusion
of your address this afternoon, to indicate to the Tribunal,
and to the defendants' counsel, what the programme for
tomorrow is to be.

SIR DAVID MAXWELL FYFE: If your Honour please, I wonder if I
could say one word in regard to the position as to
documents, because I had an opportunity during recess of
consulting with my friend Mr. Dodd, and also with my friend
M. Dubost; all PS documents form a series of captured
documents, whose origin, and the process taken subsequent to
the article, was verified on 22 November by Major Coogan,
and was put in by my friend Colonel Storey.

Yes, it is the submission of the prosecution, which, of
course, it is delighted to elaborate at any time convenient
to the Tribunal, that all such documents being captured and
verified in that way are admissible. I stress the word
admissible, but the weight which the Tribunal will attach to
any respective document is, of course, a matter which the
Tribunal would decide from the contents of the document and
the circumstances under which it came into being. That I,
fear, is the only reason I ventured to intervene at the
moment; that there might be some confusion between the
general verification of the document as a captured document,
which is done by Major Coogan's affidavit, and the

                                                  [Page 294]

individual certificate of translation, that is, of the
correctness of the translation of the different documents,
which appear at the end of each individual American
document. The fact is that my friend, Mr. Dodd, and I were
very anxious that this matter should be before the Tribunal,
and we should be only too delighted to give to the Tribunal
any further information which it desires.

THE PRESIDENT: Does that affidavit of Major Coogan apply to
all the other series of documents put in by the United
States.

SIR DAVID MAXWELL FYFE: It applies to PS and I think to D,
C, L, R and EC.

THE PRESIDENT: What about the L?

SIR DAVID MAXWELL FYFE: I think it is L and not D.

THE PRESIDENT: Does that certificate then cover this
particular sheet of paper which is marked 532-PS, and has it
no other identifying mark?

SIR DAVID MAXWELL FYFE: Yes. The affidavit proves that that
was a document captured from German sources; it gives the
whole process as to what happens after that. I have not
troubled the Tribunal by reading it, because as such we
submit that it is admissible as a submission; of course, the
matter of weight may vary.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL FYFE: I do not want the Tribunal to be
under the misapprehension that every document is certified
individually. If a document comes from any of the sources
mentioned in Article 21, then some one with authority from
his Government certifies it as coming from one of these
sources, and that we do individually. But concerning
captured documents, we do not make an individual
certification; we depend on Major Coogan's affidavit.

THE PRESIDENT: Yes, but just a moment. Sir David, it is
perhaps right to say in reference to this particular
Document, 532-PS, or the portion of it which has been
produced, first of all, that the copy which was put before
us did not contain the marginal note, and that it is,
therefore, wrong. We are in agreement with your submission
that it has been certified, as you say, by Major Coogan's
affidavit, which is admissible; but, of course, that has
nothing to do with its weight. That is the point on which
Dr. Exner was addressing us.

SIR DAVID MAXWELL FYFE: So I appreciated it, your Honour.

THE PRESIDENT: It is a document, being a private document
and not a document of which we can take judicial notice,
which has not been read in court by the United States or
other prosecutors, and it is not in evidence now because it
has not been read by M. Dubost.

SIR DAVID MAXWELL FYFE: Your Honour, on that, of course, I
do not desire to say anything further. That is the ruling of
the Tribunal. The only part that I did want to stress was
that the PS series of documents as such is being verified
and, of course, subject to reading it in Court it could be
put in.

THE PRESIDENT: Thank you. We quite understand that.

I ought to say, on behalf of the Tribunal, that we owe an
apology to the French prosecutor and his staff because it
has just been pointed out to me that this marginal note does
appear upon the translation and, therefore, M. Dubost, I
tender to you my apology.

M. DUBOST: Mr. President, the Tribunal will certainly
remember that this morning Document 1553-PS was set aside.
It contains bills for gas destined for Oranienburg and
Auschwitz. I believe that, after the explanation given by
Sir David, this Document 1553-PS may now be admitted by the
Tribunal since it has already been certified.

THE PRESIDENT: Was it read, M. Dubost?

M. DUBOST: Yes, Mr. President. I was about to read it this
morning.

It is the 27th document in the second document book, but the
Tribunal rejected it, with the demand that I furnish an
affidavit. The intervention of Sir David settled this
affidavit question. I beg the Tribunal to forgive

                                                  [Page 295]


my making the following request, I should be grateful if it
would accept the document which was refused this morning?

THE PRESIDENT: M. Dubost, it was a question of gas, was it
not?

M. DUBOST: That is right.


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