The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
21st January to 1st February, 1946

Forty-Sixth Day: Wednesday, 30th January, 1946
(Part 6 of 7)

[Page 291]

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.


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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