The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: imt/tgmwc/tgmwc-06/tgmwc-06-53.11

Archive/File: imt/tgmwc/tgmwc-06-53.11
Last-Modified: 1998/04/13

DR. NELTE (Counsel for defendant Keitel): the French
prosecutor is about to refer to a document which is in the
document book as Document 711-RF, and has been presented to
the Court. This document is marked as a summary of an
interrogation of German General Westhoff and it forms a
particularly grave charge against the defendant Keitel. It
concerns the shooting of R.A.F. officers, who had escaped
from the Camp of Sagan. I protest against the use of this
document in evidence for the following reasons:

Firstly, the document is not an affidavit but only a
summarised report on General Westhoff's statements.

Secondly, the report submitted is not signed by Colonel
Williams, who conducted the interrogation. It is not signed
at all, but has only a translator's note on it.

Thirdly, you cannot tell from the document the person who
drafted it.

Fourthly -- in addition -- you cannot tell from that report
whether General Westhoff was questioned on oath.

Fifthly, General Westhoff is, as far as I know, here in

Sixthly, there is a protocol in existence concerning General
Westhoff's interrogatory.

For these reasons I ask the Court to check as to whether
that document -- which marked as a resume -- concerning
General Westhoff's interrogation can be used as proof.

THE PRESIDENT: Where shall I find the document?

M. QUATRE: Mr. President, I admit the soundness of the
defence's request but I think that I shall be in a position
this evening to furnish the Tribunal with the minutes of the
interrogation of General Westhoff, accompanied by an
affidavit by Sir David Maxwell Fyfe. I received this
document at the last moment and I did not produce it with my
document book, but I shall be able to present it to the
Tribunal this evening.

                                                  [Page 145]

THE PRESIDENT: Well, what do you say to the various points
that have been raised by Dr. Nelte?

M. QUATRE: Mr. President; I quite admit the sound basis of
the request by the defence and, as I said a moment ago, I
shall be in a position at the end of this session to produce
before the Tribunal the complete minutes of the
interrogation of General Westhoff, accompanied by an
affidavit by Sir David Maxwell Fyfe.

I regret not being able to produce it at the moment. I
received these minutes too late and I thought it better not
to add them to my document book for material reasons.

THE PRESIDENT: The Tribunal considers that the document
which you have submitted to us cannot be admitted. It is a
mere resume. The Tribunal thinks, also, that it can allow
the interrogatory to be used only if a copy of it is handed
to the defendants counsel and the witness who made the
interrogatory is submitted to the defendants' counsel for
cross-examination, if they wish to cross-examine him.
Otherwise you must call General Westhoff and examine him
orally. Is that clear? I will repeat it if you like.

The document you have submitted to us is rejected. You can
either call General Westhoff as a witness, in which case, of
course, he will be liable to cross-examination, or you can
put in the interrogatory after you have supplied a copy of
it to defence counsel, and then General Westhoff, who made
the interrogatory, will be liable to cross-examination by
the defence counsel.

SIR DAVID MAXWELL FYFE: Would the Tribunal allow me to
intervene for one moment?

The document to which my learned friend referred a moment
ago as having been certified by myself is a report of the
United Nations War Crimes Commission, which I received from
the Chairman, Lord Wright, and certified as such a report.
It therefore, in my respectful submission, becomes
admissible under Article 21 of the Charter. It is not merely
a transcript of the interrogation. That is the document to
which my learned friend referred and that is available and
can be procured quite shortly.

THE PRESIDENT: Sir David, I follow that point, but at the
same time that does not altogether meet the situation. If it
is true that General Westhoff is in Nuremberg at the present
moment, it would scarcely be fair that a document of that
sort should be put in unless the person who made the
statement or from whose interrogatory the statement was
composed was submitted for cross-examination.

SIR DAVID MAXWELL FYFE: With the greatest respect, My Lord,
I should like the Tribunal to consider that point because
the Tribunal has not got the document in front of it, but it
is a report to the United Nations War Crimes Commission,
based on the interrogatory. It therefore, in my respectful
submission, becomes admissible as a report within the actual
words of Article 21 and therefore is a matter which the
Tribunal shall, under the Charter, take judicial notice.

THE PRESIDENT: Would your submission be that the right
course would be to take that report into consideration and
leave it to the defendants, if they wished it, to call
General Westhoff?

SIR DAVID MAXWELL FYFE: That would be my submission -- that
is my submission because of the effect of Article 21, or the
course which is contemplated in view of the special powers
and special validity given to such reports by Article 21.

THE PRESIDENT: The Tribunal would like to know whether the
interrogation was made by the prosecution in Nuremberg?

SIR DAVID MAXWELL FYFE: I am told that the interrogation was
made in London. I did not know that General Westhoff was in
Nuremberg. I will make inquiries on that point.

                                                  [Page 146]
THE PRESIDENT: Sir David, were you able to inform us whether
or not the interrogation was made in Nuremberg or in London?

SIR DAVID MAXWELL FYFE: I am told it was made in London.

THE PRESIDENT: Do you know where the witness is now?

SIR DAVID MAXWELL FYFE: I did not know he was in Nuremberg
until Your Lordship mentioned it, but I can easily verify
that point.

DR. NELTE: Last week I received a letter from General
Westhoff from the prison here in Nuremberg with answers to
other questions. So you see that he was here last week.

THE PRESIDENT: The Tribunal will adjourn now.

                    (A recess was taken.)
SIR DAVID MAXWELL FYFE: I wonder if I might just add one or
two words to clarify the position.

I do this because this is a matter to which the British
Government, in particular, attached very great importance.

The position was that last September, on 25th September, the
British Government sent a full report of this incident to
the United Nations War Crimes Commission. that report
included statement before a court of inquiry, statements by
Allied witnesses, statements taken from German witnesses,
including General Westhoff, copies of the official lists of
the dead and a report of the Protecting Power. All that was
sent by the British Government to the United Nations War
Crimes Commission last September and the statement of
General Westhoff, which I certified as being a report of the
United Nations War Crimes Commission, was part of an
appendix to that report which was then in the custody of the
United Nations War Crimes Commission, and of which a copy
was sent to me here.

I provided that to my French colleagues, and that refers to
an earlier report made by General Westhoff at an
interrogation which took place in London as a part of the
matter of that report.

The document which my learned friend was adducing to-day was
a summary of a subsequent interrogation of General Westhoff
taken in Nuremberg.

My Lord, I wanted to get the position perfectly clear, if I
could, to the Tribunal -- because, as I say, the incident is
one of some importance and the British Government's report
will be, I hope, tendered to the Tribunal by my Soviet
colleague, as the incident lies to the East of the line
which we have drawn through the centre of Berlin and
therefore falls within the Soviet case.

But I do not want the Tribunal to be under any
misapprehension as to the nature of the earlier report that
was made, the one which my learned friend referred to as
being able to put in later should the Tribunal desire it.

THE PRESIDENT: But you are agreed that the document which is
now being offered to the Tribunal is not a government
document within Article 21 of the Charter?

SIR DAVID MAXWELL FYFE: I quite respectfully agree that it
is not really the document on which I intervened. I
intervened on the second one.

THE PRESIDENT: At this stage we are not concerned with that,
only with the document offered in evidence, to which nobody
objected, and that document is not a Government document
within Article 21.

SIR DAVID MAXWELL FYFE: That I understand is so, but I was
really intervening to explain that the second document comes-

THE PRESIDENT: I quite understand, yes.

The Tribunal allows the objection of Dr. Nelte. It considers
that the document which has been submitted is not a
governmental document within Article 21 of the Charter and
is therefore rejected. The Tribunal adheres to the decision
which I announced just before we adjourned, namely, that if
the prosecution desire to do so, they can produce the
interrogation of which

                                                  [Page 147]
the document submitted to them is understood by them to be a
resume, and if they do so, then they must produce the
witness, General Westhoff, for cross-examination by the
defendant's counsel. In the alternative, they can produce
and call General Westhoff himself and then, of course, he
will be liable to cross-examination by the defendants'

M. QUATRE: I should like to state that as I am anxious not
to lose time, and a good deal of time has already been
wasted in the course of to-day's session, I shall not make
use of this document now, nor shall I call General Westhoff.
I shall simply request the Tribunal to note that we reserve
the right to call General Westhoff, if necessary, when the
defendants are cross-examined. May I continue, Mr.


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