The Nizkor Project: Remembering the Holocaust (Shoah)

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Archive/File: imt/tgmwc/tgmwc-05/tgmwc-05-46.05
Last-Modified: 1999/10/05

THE PRESIDENT: M. Dubost, had the document on Page 31 been
received before? - the one you just read?

M. DUBOST: Document on Page 31, which I have just read, was
not read before Mr. President, but it was submitted. I
thought you were speaking -

THE PRESIDENT: The next one has been read, has it not, 498?

M. DUBOST: Document 498, which I told the Tribunal I was not
going to read, was read by our American colleagues. The
Tribunal will find it, nevertheless, in the document book on
Pages 32 and 33.

THE PRESIDENT: There are two points to which I wish to draw
your attention. In the first place, it is said that you are
not offering these documents in evidence, you are simply
reading them, and they must be offered in evidence so that
the document itself may be put in evidence. You have not
offered in evidence any of these documents; you have just
been reading from them or have given them numbers.

M. DUBOST: Mr. President, they were all filed, absolutely
all of them except those which were already filed by our
colleagues, and all were filed with a number, and can be
handed to you immediately. I shall ask the French secretary
to hand them to you with the exhibit numbers which I read

THE PRESIDENT: They have all been put in evidence already?

M. DUBOST: Mr. President, some have been put into evidence;
I quoted them with their exhibit numbers, but some have not
been submitted. I will submit these and give them French

THE PRESIDENT: You are saying, "have been put in evidence by
some other member of the prosecution;" is that right?

M. DUBOST: That is correct, Mr. President. When I quote them
I give the number under which they were filed by my American

THE PRESIDENT: That was filed by the American Prosecution,
was it not 498, on Page 32?

                                                  [Page 288]

M. DUBOST: 498, on Page 32 has already been filed as exhibit
U.S.A. 501, as I said before, Sir.

THE PRESIDENT: I am speaking of 498, Page 32.

M. DUBOST: That is correct. It is the American number 501
filed by my American colleagues as Exhibit U.S.A. 501.


M. DUBOST: No. 498-PS, Mr. President, Page 32 in your
document book has already been submitted, as I said, by my
American colleagues and has been read by them. I shall not
read it. I shall merely comment on it briefly.

THE PRESIDENT: Very well, with reference to the document
which preceded it on Pages 27 29, 30 and 31 -

M. DUBOST: I will ask the French secretary to give them to
you with the numbers under which they were filed, which
correspond to the ones I began to read.

THE PRESIDENT: Have they been filed by the American
prosecutor too?

M. DUBOST: Not all, Mr. President. Some were filed by the
American Prosecution and others were filed by me.

THE PRESIDENT: All I am pointing out - I think, M. Dubost,
that what the Tribunal wants you to do is - when you put in
a document -

M. DUBOST: Will you excuse me, Mr. President. I do not

THE PRESIDENT: I have not finished the sentence. What I was
saying was, what the Tribunal wants you to do is, when you
put in a document, if it has not already been put in, give
it a number and announce the exhibit number so that the
record may be complete.

Is that clear?

M. DUBOST: It is clear, Mr. President, but I believe that I
have done so from the beginning, since the French secretary
has just given you the file.

THE PRESIDENT: You may have put numbers on the documents,
but you have not announced them in some cases.

There is another matter which I wish to state and it is
this. When I spoke before, what I asked you to do was to
confine yourself to any new points, and you are now giving
us evidence about commandos and about British commandos, all
of which has been already gone into in previous stages of
the trial, and that appears to us to be unnecessary.

M. DUBOST: The Tribunal will pardon me, but I have not read
any of the documents already mentioned. The documents from
which I have read were documents not cited before. I had
just reached a document which had been mentioned before, and
I asked the Tribunal to excuse me from even commenting on
it, since I thought the document was already well known to
the Tribunal.

THE PRESIDENT: Well, we have had a good deal of evidence
already about the treatment of commandos and sabotage
groups, evidence, if I remember rightly, which attempted to
draw some distinction between troops which were dropped from
the air, for instance, close up to the battle zone, and
troops that were dropped at a distance behind the battle
zone. We had quite a lot of evidence upon that subject. If
there is anything which is of special interest to the case
of France we would be most willing to hear it, but we do not
desire to hear cumulative evidence upon subjects which we
have already heard.

M. DUBOST: I did not think that I had brought cumulative
proof to the Tribunal in reading documents which had not
previously been read, but since that is so, I will continue,
but not without emphasising that, in our view, the
responsibility of Keitel is seriously involved by the orders
which were given and by the execution of these orders.

Document 510-PS, Page 48, has not been read. We submit it as
Exhibit RF 367,

                                                  [Page 289]

and we ask the Tribunal to take judicial notice of it: it
concerns the carrying out of the orders which were given
concerning the landing of British detachments at Patmos.

A memorandum from the General Staff to the commander of the
different units, Document 532-PS, which is the appendix to
the document book repeats and specifies the instructions
which the Tribunal knows and does not bring anything new
into the case. We submit this document as Exhibit RF 368,
and we ask the Tribunal to take judicial notice of it.

We shall now deal with the execution of Allied airmen who
were captured.

From the presentation which was made of this question, the
Tribunal has learned that a certain number of air operations
were considered as criminal acts by the German Government,
who indirectly encouraged the lynching of the airmen by the
population or their immediate extermination by the action
"Sonderbehandlung" (special treatment), which need not be
discussed again. This was the subject of Exhibit USA 333,
which has already been cited, and USA 334.

Within the scope of these instructions, orders were given by
the letter of 4 June 1944 to the Minister of Justice to
forbid any prosecution against German civilians in
connection with the murder of Allied airmen. This is the
subject of Document 635-PS, which you will find in the
appendix of the document book, same paragraph.

   "Reich Ministry of Justice." This document will become
   as Exhibit RF 370.
   "The Reich Minister and Head of the Reich Chancellery, 4
   June 1944, to the Reich Minister of Justice, Doctor
   Subject: The justice of the people against Anglo-
   American murderers. The Chief of the Party Chancellery
   has informed me of his secret memorandum, a copy of
   which is enclosed, and has asked me to make it known to
   you also. I am complying with this in asking you to
   examine to what extent you wish to inform the tribunals
   and the public prosecutors."

On 6 June, two important conferences were held, notably
between Kaltenbrunner, Ribbentrop, Goering (all three
defendants), Himmler, and Von Brauchitsch, at which officers
from the Luftwaffe and the SS were present, also. They
decided to draw up a final list of air operations which
would be considered acts of terrorism.

The original record made by Warlimont and bearing written
notes by Jodl and Keitel is Document 735-PS, which I submit
as Exhibit RF 371. It was decided at this conference that
lynching would be the ideal punishment to stop certain types
of air operations directed against the civilian population.

Kaltenbrunner, on his part, promised the active
collaboration of the SD (Page 68 at the end of the first
paragraph and the second paragraph.).

THE PRESIDENT: Was it already read?

M. DUBOST: This document, so far as I know, was never read.

DR. EXNER (Counsel for defendant Jodl): I am protesting
against the presentation of Document 532-PS dated 24.6.44.
(NB. See Tribunal's ruling on page 293.)  That is a draft of
an order which was submitted to Jodl, but which was crossed
out by him, and so annulled.

At this juncture I would also like to call the attention of
the Court to the fact that we defence counsel did not
receive a document book like the one presented to the
Tribunal, and it is therefore very hard for us to check and
to follow the presentations of the prosecution. Every
morning we receive a pile of documents, some of which
partially refer to future and some to past proceedings. But
I have not seen document book in chronological order for


weeks. Furthermore, it would be desirable for us to receive
the documents the day before. In that case, when testimony
is given, we could be of assistance to both sides.

THE PRESIDENT: Dr. Exner, are you saying that you have not
received the document book, or that you have not received
the dossier? Are you saying that you have not received the
document book, or this thing which is the dossier of the

DR. EXNER: I did not receive the document book. I would like
to add something. Some of the documents which have just been
presented were quoted without signatures, and without date,
and it is questionable whether these so-called documents are
to be considered as documents at all.

THE PRESIDENT: Well, I imagine that you have just heard - I
have told M. Dubost that he must announce the exhibit number
which the French prosecutor is giving to any document which
he puts in evidence. As I understand it, he has been putting
numbers upon the documents, but in certain cases he has not
announced the number in open court. The document, as you
have seen, has been presented, and, as I understand, it has
a number upon it, but he has not in every case announced the
number, and the Tribunal has told M. Dubost that it wishes
and it orders that every document put in by the French
prosecutor should have an exhibit number announced in Court.
That meets one of the points that you raised.

As to your not having the document book, that is, of course,
a breach of the order which the Tribunal has made that a
certain number of copies of the documents should be
deposited in the defendants' Information Centre, or
otherwise furnished to defendants' counsel.

As to Document 532-PS -

(Off the record discussion by the Court.)

THE PRESIDENT: Dr. Exner, is there anything further you wish
to say upon these points, because we are just about to have
a recess for a few moments. We would like to hear what you
have to say before we have the recess.

DR. EXNER: I have nothing further to add, but if I may be
permitted to make a further remark, we were advised that it
was your Honours wish that we should hear every day what is
to be the subject of the proceedings on the following day,
which would, of course, be a great help to our preparations.
So far, that has never been the case. I myself have never
heard what was to be dealt with the following day.

THE PRESIDENT: Thank you. M. Dubost, the Tribunal would like
to hear what you have to say upon the points raised by Dr.
Exner: first of all, upon Document 532-PS; secondly, why he
did not receive a document book; and lastly, why he has not
received any programme as to what is to be gone into on the
following day.

M. DUBOST: As to the question of programme, as Dr. Exner
pointed out, the custom of providing it has not been
established by the prosecution. No one has ever given it,
neither the French prosecution nor its predecessors. Perhaps
I did not attend the session the day the Tribunal requested
that the programme should be given. In any case I do not
remember that the prosecution was ever requested to do that.

As far as the document book is concerned, it is possible
that this book was not handed to the defence in the form
which is before the Tribunal, that is to say, with the pages
numbered in a certain order. However, I am certain that
yesterday I sent the defence the text in German and several
texts in French of all the documents which I was to submit
to-day. I cannot assure the Tribunal that they were handed
over in the order in which you have them before you, but I
am sure that that was done.

THE PRESIDENT: As to Document 532?

                                                  [Page 291]

M. DUBOST: Document 532 was not read in the hearing, Mr.
President. I could not hide the fact that there was a
manuscript note in the margin, but I did not read this

THE PRESIDENT: Is it a document that had been put in before?

M. DUBOST: I do not believe so, Mr. President. In my dossier
there are a certain number of documents which I have not
read, as I knew the Tribunal's wish that I should shorten my
presentation, and Document 532 is one of those.

THE PRESIDENT: I know you did not read it, but did you put
it in evidence? Did you give it a number?

M. DUBOST: No, Mr. President. It is part of this series of
documents which I shall not read, in order to finish more
quickly, since that is the wish of the Tribunal.

THE PRESIDENT: Well, M. Dubost, I have said that I knew that
you did not read it, and I have asked you - I think twice -
whether you intended to put it in evidence. Did you give it
a number?

M. DUBOST: Perhaps, Mr. President .... Yes, that is correct,
Exhibit RF 368, I remember.

THE PRESIDENT: The document, according to Dr. Exner, is a
draft of a order which was submitted to Jodl but was not
approved by him. Those were his words, as they came through
in the translation, and, therefore, he submits that it is
not to be considered, and there is nothing to show that the
document was ever anything more than a draft. If so, is it
not clear that it ought not to be received in evidence?

M. DUBOST: This is a question which the Tribunal will decide
after having heard the explanation of Dr. Exner. This
document did not seem to me of major importance in my
presentation, since I did not read from it. In any case, I
could not hide from the Tribunal, since I did not read it,
that there was a manuscript note in the margin. It is
certain that this manuscript note is an element to be taken
into consideration, and on which the Tribunal will base its
decision whether the Exhibit RF 368 should be accepted or
rejected, after having heard the explanation of the defence.

(A recess was taken)

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