The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/11/25

DR. NELTE: Only the report, without the appendix.

THE PRESIDENT: Well, the Tribunal certainly intended that
the whole of the document should be furnished to defendant's
counsel, and that must be done so that you may have all the
documents before you.

DR. NELTE: But that has obviously not been done. The
Appendix expressly mentions statements made by Major-General
Westhoff and by Oberregierungsrat Wielen. I am not
acquainted with either of these statements. They were not
attached to the report.

THE PRESIDENT: You must have them. The prosecution must see
that the whole of this document is furnished to the defence

SIR DAVID MAXWELL FYFE: Certainly, my Lord. I do not think
the whole of it has been copied, but if Dr. Nelte will let
us know if he wants the whole of it, or a part, we will co-
operate the best way we can. The last thing we desire is
that he should not have it. We want him to have everything
he wants.

THE PRESIDENT: Well, Sir David, will you inform the Tribunal
whether the prosecution have now concluded their case.

SIR DAVID MAXWELL FYFE: Yes, my Lord. That is the conclusion
of the case for the prosecution.

THE PRESIDENT: Very well. . Then we will now proceed with
the applications for witnesses and documents by the second
four of the defendants, Kaltenbrunner, Rosenberg, Frank and

DR. KAUFFMANN (counsel for the defendant Kaltenbrunner): The
defendant Kaltenbrunner wishes to call a number of witnesses
whom I will name now. First, Professor Dr. Burckhardt.

SIR DAVID MAXWELL FYFE: My Lord, if the Tribunal approves,
we will adopt the same procedure as was done with the first
four defendants.

With regard to the three Swiss witnesses, Burckhardt,
Brachmann and Meyer, the interrogatories were granted on
15th of December and submitted on 28th of January. The
prosecution considered that the interrogatories were rather
on the vague side and suggested that they might be made more
precise. The prosecution has no objection to interrogatories
in principle, and I am sure that there would not be much
difference between Dr. Kauffmann and the prosecution as to
the form. That applies to the first three witnesses.

THE PRESIDENT: We are informed that none of these three
witnesses has been located yet.

                                                  [Page 133]

SIR DAVID MAXWELL FYFE: Well, I respectfully agree, my Lord.
That is the position of the prosecution, that we have no
objection in principle to these interrogatories, and if we
can help the Court in any way to locate the witnesses, we
should be glad to do so.

THE PRESIDENT: When were the interrogatories furnished to
the prosecution?

SIR DAVID MAXWELL FYFE: The 28th of January, my Lord.

THE PRESIDENT: And were the prosecution's objections
communicated to the defence counsel shortly afterwards, or

SIR DAVID MAXWELL FYFE: I am sorry, I am afraid I have not
got that date, my Lord.

THE PRESIDENT: Would not the most sensible course be for the
prosecution to try to agree upon a suitable form of
interrogatory whilst the General Secretary is continuing his
inquiries to find the witnesses?

SIR DAVID MAXWELL FYFE: Yes. If Dr. Kauffmann will
communicate with me, I have no doubt that we could agree on
a form that would be mutually acceptable.


DR. KAUFFMANN: Mr. President, I think there is no need for
me to repeat the individual questions which I have listed in
the interrogatory. There are nineteen of them. I do not
think that I need repeat them now.

THE PRESIDENT: No, certainly not.

DR. KAUFFMANN: The fourth witness is the former German
Minister in Belgrade, Neubacher. At present he is in the
internment camp, Oberursel near Frankfurt, in American

SIR DAVID MAXWELL FYFE: No objection to this witness.

DR. KAUFFMANN: Does the Tribunal want me to specify the

THE PRESIDENT: Yes, if you would.

DR. KAUFFMANN: Neubacher will, in the opinion of the
defendant Kaltenbrunner, be able to testify that the order
given by Hitler in October, 1944, to stop the persecution of
the Jews was really given at Kaltenbrunner's suggestion.
Furthermore, in the opinion of the defendant, he will be
able to testify that when Himmler was appointed Chief of the
Reichssicherheitshauptamt he put the defendant in charge of
Amt III and VI. This seems to me to be important since so
far the Indictment has always been based on the defendant's
definite connection with Amt IV, which is, indeed, borne out
to a certain extent by the evidence. Neubacher is expected
to be able to testify to this.

THE PRESIDENT: Dr. Kauffmann, if those are the questions
which it is desired to interrogate Neubacher on, could they
not be dealt with by interrogatories?

DR. KAUFFMANN: According to the information given to me by
Kaltenbrunner, Kaltenbrunner attaches importance to the
personal appearance of this witness for reasons which are
easy to understand. I believe that Kaltenbrunner considers
this witness one of the most important witnesses, and he
would like to see this witness called.

THE PRESIDENT: Well, the Tribunal will consider that.

DR. KAUFFMANN: The fifth witness is Wanneck, at present in
American custody in Heidelberg.

SIR DAVID MAXWELL FYFE: The prosecution suggests that the
witness Wanneck is cumulative. According to Dr. Kauffmann's
application, he is going to deal with the point that the
defendant Kaltenbrunner was actually occupied mainly with
the task of the intelligence service and that he objected to
persecution of the Jews. That is already covered by
Neubacher, and it is also covered by

                                                  [Page 134]

the cross-examination of the prosecution's witness
Schellenberg, who was the Chief of Amt VI, which Dr.
Kauffmann has set out in his note on the witness Neubacher,
No. 4, as being one of the Intelligence Aemter.

DR. KAUFFMANN: I leave it to the Tribunal to decide whether
this witness could be dealt with by means of an
interrogatory. But I do consider the evidence materially
relevant in the case of Wanneck as well. In a certain sense
it is cumulative, but some points in it go further. But I
agree to an interrogatory.

The sixth witness is Scheidler.

THE PRESIDENT: Sir David, do you think it would be
unreasonable to administer an interrogatory?

SIR DAVID MAXWELL FYFE: No, my Lord. Generally, I make no
objection to interrogatories at all.

With regard to Scheidler, he was, as I understand the
application, the defendant Kaltenbrunner's adjutant, and as
such the prosecution would not make any objection. But I
think it would be convenient if I were to draw the attention
of the Tribunal to the fact that the next six witnesses,
Nos. 6 to 11 inclusive, all deal with concentration camps,
and Nos. 6, 8, 9 and 11 deal with Mauthausen. I want to give
Dr. Kauffmann warning that I shall ask for some selectivity
among these six witnesses.

The prosecution feel that the application for an adjutant is
a reasonable one, but it will be reflected in objections to
later witnesses.

DR. KAUFFMANN: The defendant naturally considers it
important that the adjutant, who served him for many years
and who accompanied him on every single trip, as
Kaltenbrunner told me himself, be called. He knows also, for
instance, that the wireless message to Regelein, which is
part of the accusation, did not come from Kaltenbrunner and
that his radiogram was never sent. He also knows that
Kaltenbrunner had made all preparations for the
Theresienstadt camp to be made accessible to the Red Cross.
These are things which have not been mentioned by previous
witnesses, but which shed some light on the person of the

THE PRESIDENT: You are speaking now of Scheidler?


THE PRESIDENT: Sir David, the Tribunal would like you to
deal with the whole of that group together, and then Dr.
Kauffmann can answer what you say.

SIR DAVID MAXWELL FYFE: With pleasure, my Lord.

The next witness is Ohlendorf, who was called as a witness
for the prosecution. The situation as I have found it is
that Dr. Kauffmann did cross-examine the witness Ohlendorf
on the defendant Kaltenbrunner's responsibility on
concentration camps on 3rd of January of this year, Page 261
(Part 3) of the record.

The witness Wisliceny, No. 12, who has not been cross-
examined on behalf of Kaltenbrunner by Dr. Kauffmann, would
be the natural person to deal with that point. But, of
course, if Dr. Kauffmann has any special point for the
recalling of Ohlendorf, he will tell the Tribunal.

That is the position.

THE PRESIDENT: Dr. Kauffmann, if you had the opportunity of
cross-examining General Ohlendorf and actually availed
yourself of the opportunity was not that the appropriate
time for you to put any questions which you had on behalf of
the defendant Kaltenbrunner?

DR. KAUFFMANN: I should like to remind you that
Kaltenbrunner was ill for more than 12 weeks and that I
could get almost no information from him. At the session of
2nd January the right of cross-examining the witnesses at a
later date was expressly granted me by the Tribunal. I had,
as the Court will remember, made a motion to adjourn and
then I was permitted to cross-examine the witnesses at a
given time which would suit myself.


That appears in the transcript of 2nd January, 1946.

As these witnesses have all been called in Kaltenbrunner's
absence, I should like to cross-examine now in his presence.
I am, however, prepared to forgo the cross-examination if I
can talk to the witnesses beforehand. Perhaps it will not be
necessary to call one or the other witness.

THE PRESIDENT: What do you mean by one or the other witness?
Which is the other? Wisliceny?

DR. KAUFFMANN: No. 7, Ohlendorf, and then No.11,
Hoellriegel, and No. 12, Wisliceny, also No. 14,
Schellenberg. All these witnesses have been heard here and
Kaltenbrunner was ill at the time.

THE PRESIDENT: What do you say about it, Sir David?

SIR DAVID MAXWELL FYFE: I should suggest that Dr. Kauffmann
cross, examine No. 11, Hoellriegel, and No. 12, Wisliceny,
whom he has not cross-examined so far. And then, if there is
any special point which remains to be dealt with by the
witness Ohlendorf, Dr. Kauffmann can make a special
application to the Tribunal.

THE PRESIDENT: Yes. The Tribunal would like to know then
what position you take about the defendants' counsel seeing
these witnesses and discussing with them their evidence
before they call them. I mean, there is a distinction
between cross-examination when defendants' counsel cannot
see them and calling them as their own witnesses when they
can see them.

SIR DAVID MAXWELL FYFE: The prosecution feel that they ought
simply to cross-examine witnesses that have been called by
the prosecution, unless there are very special
circumstances. I think that Dr. Seidl showed special
circumstances with regard to the case that he mentioned, of
one witness in special relation to the defendant Hess. But
as a general rule, the prosecution submit that witnesses
whom they have called should be cross-examined without prior

THE PRESIDENT: Well, Sir David, the Tribunal would like to
know your view - of course, we are not deciding the point
now, but we should like to know your view - as to whether it
would be a proper course to allow the defendants' counsel to
see the particular witness in the presence of a
representative of the prosecution, because it may be that
that would lead to a shortening of the proceeding, because
the defendants' counsel might after that not wish to cross-
examine the witness any further.

SIR DAVID MAXWELL FYFE: I am afraid that would require
discussions with my colleagues on each particular witness. I
am afraid I have not covered that point; witnesses 11 and 12
were called by my American colleagues, and although I take
the general position which I put before the Tribunal, I have
not discussed that point, but I shall be pleased to discuss
it with them and perhaps to inform the Tribunal later on in
the day.

Of course, you will appreciate the fact that there may be a
special point relating to a special witness that may come up
in this connection.

DR. KAUFFMANN: Perhaps I can explain this. The witness
Ohlendorf was reserved for me for cross-examination. In
accordance with an agreement made with the American
prosecution, I dispensed with a cross-examination of
Ohlendorf and on this condition was allowed to speak to him.
I think it would be quite fair if I could do the same with
other witnesses. I forgo the cross-examination and can speak
to the witnesses beforehand. Perhaps one or the other will
turn out to be unnecessary.

THE PRESIDENT: I am not quite sure that you understand the
view being put to you, Dr. Kauffmann. The view is that when
a witness is called on behalf of the prosecution the
defendants' counsel certainly have the right to cross-
examine the witness, not to see the witness beforehand, but
only to cross-examine

                                                  [Page 136]

him. If on the other hand they are entitled to call that
witness as their own, then they are entitled to see him
beforehand, which is...

DR. KAUFFMANN: Yes, that is what I mean. But if I am allowed
to speak to the witness beforehand, then the Court will
understand, that I should like to avoid as far as possible
the presence of a representative of the prosecution, since
the reasons which might cause me to forgo the calling of a
witness would then be known to the prosecution. I think
everyone will understand that, and I also think it is fair.

THE PRESIDENT: I wanted to clarify what the difference in
view between you and the prosecution is. The prosecution
said that when the witness was called for the prosecution
the right of the defendants is only to cross-examine. Can
you help us further with respect to this group, Sir David?

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