The Nizkor Project: Remembering the Holocaust (Shoah)

Fourth Day: Friday, 23rd November, 1945
(Part 7 of 7)

[MR. SIDNEY S. ALDERMAN continues]

It is familiar law in my country that if two or more persons set out to rob a bank, in accordance with a criminal scheme to that end, and in the course of carrying out

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their scheme one of the conspirators commits the crime of murder, all the participants in the planning and execution of the bank robbery are guilty of murder, whether or not they had any personal participation in the killing. This is a simple rule of law declared in the Charter. All the parties to a Common Plan or Conspiracy are the agents of each other and each is responsible as principal for the acts of all the others as his agents.

So much for the terms of the Charter having a bearing on this aspect of the case.

I invite the attention of the Tribunal to the portions of the Indictment lodged against the defendants on trial which relate to the crimes of illegal war or war of aggression. Particularly I ask the Tribunal to advert to the statements of offences under Count 1 and Count 2 of the Indictment in this case.

The statement of offences under Count 1 of the Indictment is contained in paragraph III. The offences there stated, so far as pertinent to the present discussion, are:-

"All the defendants, with divers other persons, during a period of years preceding 8th May, 1945, participated as leaders, organisers, instigators, or accomplices in the formulation or execution of a Common Plan or Conspiracy to commit, or which involved the commission of, Crimes against Peace, as defined in the Charter of this Tribunal. . . . The Common Plan or Conspiracy embraced the commission of Crimes against Peace, in that the defendants planned, prepared, initiated and waged wars of aggression, which were also wars in violation of international treaties, agreements or assurances." . . .
The statement of offences under Count 2 of the Indictment is also relevant at this point. It must be obvious that essentially Counts 1 and 2 interlock in this Indictment. The substance of the offence stated under Count 2, paragraph V of the Indictment is this:-
"The emphasis in the statement of offences under Count 1 of the Indictment is on the Common Plan or Conspiracy. The emphasis under Count 2 of the Indictment is on the substantive crimes to which the Conspiracy related and which were committed in the course of and pursuant to that conspiracy."
I should hasten to add at this point that in the division of the case as between the Chief Prosecutors of the four Prosecuting Governments, primary responsibility for the presentation of the evidence supporting Count 1 has been placed on the American prosecutor, and primary responsibility for the presentation of the evidence supporting Count 2 of the Indictment has been placed on the British prosecutor.

But as we shall show somewhat later, there will, to some extent, be a co-operative effort as between the prosecutors to present both counts together. In addition to the statement of offence relating to illegal warfare in paragraph III under Count 1 of the Indictment, Count 1 also contains what amounts to a bill of particulars of that offence. In so far as those particulars relate to illegal warfare, they are contained in paragraph IV (F) of the Indictment which sets out in the English text on page 7 through to the top of page 10 under the general heading "Utilisation of Nazi Control for Foreign Aggression." The allegations of this bill of particulars have been read in open Court, in the presence of the defendants; and the Tribunal, as well as the defendants, are certainly familiar with the contents of those allegations. I call attention to them, however, in order to focus attention on the parts of the Indictment which are relevant in consideration of the evidence which I intend to bring before the Tribunal.

My introduction to the presentation of evidence in this matter would be faulty if I did not invite the Tribunal to consider with me the relationship between history and the evidence in this case. Neither Counsel nor Tribunal can orient themselves to the problem at hand-neither counsel nor Tribunal can present or

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consider the evidence in this case in its proper context- neither can argue nor evaluate the staggering implications of the evidence at hand to be presented without reading that history, reading that evidence against the background of recorded history, and by recorded history, I mean the history merely of the last twelve years.

Justice Oliver Wendell Holmes, of the U.S. Supreme Court, found in his judicial experience that "a page of history is worth a volume of logic." My recollection is that he stated it perhaps better, perhaps earlier in the preface to his book on the common law where he said, I think, " The life of the law has been not logic but experience." I submit, that in the present case, a page of history is worth a hundred tons of evidence. As lawyers and judges we cannot blind ourselves to what we know as men. The history of the past twelve years is a burning, living thing in our immediate memory. The facts of history crowd themselves upon us and demand our attention.

It is common ground among all systems of jurisprudence that matters of common knowledge need not be proved, but may receive the judicial notice of courts without other evidence. The Charter of this Tribunal, drawing on this uniformly recognised principle, declares in Article 21:-

"The Tribunal shall not require proof of facts of common knowledge but it shall take judicial notice thereof."
The facts of recorded history are the prime example of facts of common knowledge which require no proof. No court would require evidence to prove that the Battle of Hastings occurred in the year 1066, or that the Bastille fell on the 14th of July, 1789, or that Czar Alexander II freed the serfs in i863, or that George Washington was the first President of the United States, or that George III was the reigning King of England at that time.

If I may be allowed to interpolate, an old lawyer-professor of mine used to present a curiosity of the law - that a judge is held to responsibility for no knowledge of the law whatsoever, that a lawyer is held to a reasonable knowledge of the law, and a layman is held to an absolute knowledge of all the laws. It works inversely as to facts, or facts of common knowledge. There, the judge is imputed to know all of those facts, however many of them he may have forgotten as an individual man. So one of the purposes of this presentation will be to implement the judicial knowledge, if a hypothesis actually exists.

It is not our purpose however, to convert the record of these proceedings into a history book. The evidence which we offer in this case is evidence which for the moment has been concealed from historians. It will fill in recorded history, but it must be read against the background which common knowledge provides. The evidence in this case consists primarily of captured documents - these captured documents fill in the inside story underlying the historical record which we all already knew. The evidence which we will offer constitutes an illustrative spot-check on the history of recent times as the world knows it. The evidence to be offered is not a substitute for history. We hope the Tribunal will find it to be an authentication of history. The evidence which we have drawn from captured documents establishes the validity of the recent history of the past twelve years - a history of many aggressions by the Nazi conspirators accused in this case.

As I offer to the Tribunal document after document, I ask the Court to see in those documents definite additions to history, the addition of new elements long suspected and now proved. The elements which the captured documents on this particular aspect of the case will add to recorded history are the following:-

(1) the conspiratorial nature of the planning and preparation which underlay the Nazi aggressions already known to history;
(2) the deliberate premeditation which preceded those acts of aggression;
(3) the evil motives which led to the crimes;
(4) the individual participation of named persons in the Nazi conspiracy for aggression;
(5) the deliberate falsification of the pretexts claimed by the Nazi aggressors as their reason for their criminal activities.

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These elements the captured documents will demonstrate beyond possible doubt, and these elements, in the context of historical facts, we think are all that need be shown.

The critical period between the Nazi seizure of power and the initiation of the first war of aggression was a very short period. This critical period of lawless preparation and illegal scheming which ultimately set the whole world aflame was unbelievably short. It covered six years, 1933 to 1939. The speed with which all this was accomplished evidences at once the fanatical intensity of the conspirators and their diabolical efficiency. Crowded into these six short years is the making of the greatest tragedy that has ever befallen mankind.

A full understanding of these six years, and the vibrant six years of war that followed, demands that we see this period of time divided into rather definite phases, phases that reflect the development and execution of the Nazi master plan. I suggest that the Tribunal as it receives evidence, fit it into five phases. The first was primarily preparatory, although it did involve overt acts. That phase covers roughly the period from 1933 to 1936. In that period the Nazi conspirators, having acquired government control of Germany by the middle of 1933, turned their attention toward utilisation of that control for foreign aggression. Their plan at this stage was to acquire military strength and political bargaining power to be used against other nations. In this they succeeded. The second phase of their aggression was short. It is rather interesting to see that as the conspiracy gained strength, it gained speed. During each phase the conspirators succeeded in accomplishing more and more in less and less time until toward the end of the period, the rate of acceleration of their conspiratorial movement was enormous. The second phase of their utilisation of control for foreign aggression involved the actual seizure and absorption of Austria and Czechoslovakia in that order. By March, the third month of 1939, they had succeeded in that phase. The third phase may be measured in months rather than years, from March 1939 to September 1939. The previous aggression being successful, having been consummated without the necessity of resorting to actual war, the conspirators had obtained much desired resources and bases and were ready to undertake further aggressions by means of war, if necessary. By September 1939 war was upon the world. The fourth phase of the aggression consisted of expanding the war into a general European war of aggression. By April 1941, the war which had heretofore involved Poland, the United Kingdom and France, had been expanded by invasions into Scandinavia and into the Low Countries and into the Balkans. In the next phase the Nazi conspirators carried the war Eastward by invasion of the territory of the Union of Soviet Socialist Republics, and finally, through their Pacific ally, Japan, precipitated the attack on the United States at Pearl Harbour.

The final result of these aggressions is fresh in the mind of all of us.

I turn now to certain outstanding evidence at hand. While on this phase of the case we shall not rest exclusively on them alone, the essential elements of the crime which I have already pointed out can be made out by a mere handful of captured documents. My order of presentation of these will be first to present one by one this handful of documents, documents which prove the essential elements of the case on aggressive war up to the hilt. These documents will leave no reasonable doubt concerning the aggressive character of the Nazi war or concerning the conspiratorial premeditation of that war. Some of this group of documents are the specific basis for particular allegations in the Indictment. As I reach those documents, I shall invite the attention of the Tribunal to the allegations of the Indictment which are specifically supported by them. Having proved the corpus of the crime in this way, I will follow the presentation of this evidence with a more or less chronological presentation of the details of the aggressive war, producing more detailed evidence of the relevant activities of the conspirators from 1933 to 1941.

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The documents which we have selected for single presentation at this point, before developing the case in detail, are ten in number. The documents have been selected to establish the basic facts concerning each phase of the development of the Nazi conspiracy for aggression. Each document is conspiratorial in nature. Each document is one, I believe, heretofore unknown to history and each document is self- contained and tells its own story. Those are the three standards of selection which we have sought to apply.

I turn to the period of 1933 to l936, a period characterised by an orderly, planned sequence of preparations for war. This is the period covered by paragraphs 1 and 2 of section IV (F) of the Indictment, to be found at page 7 of the printed English text. The essential character of this period was the formulation and execution of the plan to re-arm and to re-occupy the Rhineland, in violation of the treaty of Versailles and other treaties, in order to acquire military strength and political bargaining power to be used against other nations.

If the Tribunal please, we have what have been referred to as document books. They are English translations of German documents, in some cases German versions. I shall ask that they be handed up and we will hand one copy at the moment to counsel for the defendants. It has been physically impossible to prepare twenty-one sets of them. If possible, we shall try to furnish further copies to the defendants.

DR. DIX (Counsel for defendant Schacht): I would be very much obliged. In order that there should be no misunderstanding, we have arranged that tomorrow-

THE PRESIDENT: Speak a little bit slower.

DR. DIX: We have arranged that tomorrow we will discuss with the authorities in what way in the future the whole of the evidence may be made available to all the defence counsel. It is, of course, necessary that no one has the advantage over the other. For this reason, I should like to acknowledge the goodwill on the part of the prosecution in this difficult situation.

I should like to take one copy, but if I were to do so this would be an unfair advantage over the others. I am not in a position during this procedure to give my colleagues the evidence. For this reason, I hope you will understand if I do not accept this document. I am convinced that tomorrow we shall be able to agree on a perfect method of obtaining the evidence, and we shall try to continue to-day as we have done so far.

THE PRESIDENT: Mr. Alderman, can you inform the Tribunal how many copies of these documents you will be able to furnish to defence counsel by Monday?

MR. ALDERMAN: I cannot at the moment. If your Honour pleases, may I make this suggestion in connection with it, which I think may be of help to all concerned? I think many of us have underestimated the contribution of this interpreting system to this trial. We all see how it has speeded the proceeding, but in so far as my presentation of German documents is concerned, I shall let the documents speak. I expect to read the pertinent parts of the documents into the system so that they will go into the transcript of the record. Counsel for the German defendants will get their transcript in German; our French and Russian Allies will get their transcript in their language, and it seems to me that that is the most helpful way to overcome this language barrier. I can recognise that for Dr. Dix to receive a volume of documents which are English translations of German documents might not seem very helpful to him. Further, as an aid, we will have an original German document in Court, one copy, and if the Court will allow, I would ask that the original German document, from which I shall read, be passed to the German interpreter under Colonel Dostert, so that instead of undertaking to translate an English translation back into perhaps a bad German, he will have the original document before him and in that way,

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the exact German text will be delivered in the daily transcript to all of the counsel for the defendants. I hope that may be a helpful suggestion.

THE PRESIDENT: That, to some extent depends, does it not, upon how much of the document you omit?

MR. ALDERMAN: That is quite true, Sir, as to these ten documents with which I propose to deal immediately. I expect to read into the transcript practically the whole of the documents, because the whole of them is significant, much more significant than anything I could say. Also all of these ten documents were listed in the list of documents which we furnished counsel for the defendants on, I believe, the 1st of November.

THE PRESIDENT: You say that they were in the list. Arc the documents very long ?

MR. ALDERMAN: Some of them are very long and some of them are very short; you can't generalise. Whenever it is a speech of Adolf Hitler you can count it is fairly long.

THE PRESIDENT: Can you not by Monday have in the hands of every member of the defence counsel copies of these ten documents? It is suggested to me that the photostating could be done quite easily.

MR. ALDERMAN: I understand our photostatic facilities and our mimeographing facilities are right up to the hilt with work. It is a very difficult mechanical problem.

COLONEL STOREY: If the Tribunal please, in further explanation, the documents which Mr. Alderman intends to offer were on the defendants' list filed in the document centre on 1st November, 1945. Lt. Barrett had twenty-three of each one photostated as far as he could on that list. Six copies went into the Defendants' Information Centre. Now, we can't say at this time whether six copies, that is photostatic copies of each one, have been furnished to the defendants, but, whenever they wanted copies of any particular one, either the original was exhibited to them or photostatic copies were made.

Again, Sir, I call attention to the physical problems that are almost insurmountable to make twenty-three photostatic copies which are required of every document.

THE PRESIDENT: If I may interrupt you, I imagine the list which was deposited on 1st November didn't contain only these ten documents but contained a great number of other documents.

COLONEL STOREY: That is correct, Sir.

THE PRESIDENT: So that the defendants' counsel wouldn't know which out of that list of documents were going to be relied upon.

COLONEL STOREY: Except, Sir, they were notified that the Prosecution would use all or some of those documents if necessary and if the copies were not furnished upon request, they have since been made and delivered to them.

May I say, Sir, that working twenty-four hours a day, we are trying to furnish ten sets of all of these to defendants' counsel and there will be one complete set. One complete set was delivered to defendants' counsel here now as a convenience to follow. The other sets, I feel certain, will be in their hands sometime Sunday, but one complete list we now turn over to them - not a list, complete copies.

DR. SIEMERS (Counsel for defendant Raeder): I beg the pardon of the Court for being rather hoarse. I should like to point out one fact. The prosecution had declared this morning that those documents that will be put before us today are contained in the list which on the 1st of November was made available to us, or were in the list which was made available to us this morning. This morning a list was made available to us in room fifty-five. I have it in my hand. This morning nine documents were named. Of these documents only one, contrary to what the prosecution said, was present; the other eight or nine documents were neither in the old list, nor in the new list. The eight other documents are as I ascertained at lunch-time today, not in the document room, not available in

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photostatic copies, so they could not be made available to me. I think, Sirs, that it will not be possible for us to work on this basis. I therefore request that, first of all, we may wait until we have had our discussion tomorrow with the prosecution, which they have kindly offered to us and see how this -

THE PRESIDENT: The Tribunal proposes to adjourn now and to give defence counsel the opportunity of meeting counsel for the prosecution tomorrow morning. Both counsel for the prosecution and defence counsel appear to be perfectly ready to make every possible effort to deal with the case in a most reasonable way, and at that meeting you will be able to discuss these documents which you say have been omitted and the counsel for the prosecution will try to satisfy you with reference to the other documents.

DR. SIEMERS: Yes, I have one more request. It has just been said by the prosecution that it will hardly be possible to make twenty-three photostatic copies. I believe, Sirs, if this is a case of such very important documents, as the prosecution said today, it is a conditio sine qua non that every defence counsel and every accused should have a photostatic copy of these documents.

As we all know it is easy to produce a photostat in a few hours' time. With the excellent apparatus here available to the prosecution it should, in my opinion, be easy to produce twenty or forty photostats of these ten documents in forty- eight hours.

THE PRESIDENT: Well, you will meet the counsel for the prosecution tomorrow and attempt to come to some satisfactory arrangement with them then; and now the Tribunal will adjourn.

(The Tribunal adjourned until 26th November, 1945, at 10.00 hours.)

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