The Nizkor Project: Remembering the Holocaust (Shoah)

Fifty-First Day: Tuesday, 5th February, 1946
(Part 1 of 14)

(Page 65)

THE MARSHAL: May it please the Court, I desire to announce that the defendant Kaltenbrunner will be absent from this morning's session on account of illness.

M. FAURE (Counsel for France): One of the attorneys would like to address the Tribunal.

DR. LATERNSER (Counsel for the General Staff): On behalf of the organisations I represent, I make application that the testimony of the witness who was heard yesterday should be stricken from the record for this reason: That the witness made declarations, firstly, concerning the alleged wanton destruction of the library in Louvain; secondly, concerning the treatment of the inhabitants of the country during the Rundstedt offensive.

THE PRESIDENT: Wait a minute. I did not hear that last translation. I thought I heard "he made declarations concerning the destruction of the Louvain library," and then ----

THE INTERPRETER: Concerning the German treatment of the inhabitants of the country during the Runstedt offensive.

DR. LATERNSER: And secondly, in so far as he made statements regarding the treatment of the inhabitants, which led him to the conclusion that orders to this effect must have been received from higher quarters.

I wish that this testimony should be stricken from the Record for these reasons: Firstly, as regards yesterday's testimony there was no question of testimony by a witness. A witness should base his testimony on his own knowledge, which can be based only on his own observations. These prerequisites are not present in the points to which objection is made. For the most part, the witness repeated statements made by other people, some of them actually made by people whom he himself did not know. The knowledge of this witness can consequently be ascribed in part only to a study of the documents.

Secondly, every second person is in a position to give similar testimony as soon as the documents to which this witness had access are put at his disposal; and if he is also in a position to talk to the people to whom the witness talked and who gave him his information.

It is consequently proved that this witness, van der Essen, was not a genuine witness at all, because such a witness cannot be replaced by every second person who may happen to come along,

Thirdly, although the high Tribunal, in accordance with Article 19 of the Charter, is not bound by the ordinary rules of evidence, this evidence must be rejected, because it has no probative value which can be determined by the Court. This emerges of necessity from the fact that the sources of the witness's testimony cannot be evaluated.

I regard it as my duty to point out that the introduction of such indirect proof cannot lead to the discovery of the truth regarding the points in dispute.

THE PRESIDENT: The Tribunal would like to hear, M. Faure, what you have to say in answer to the motion which has just been made.

M. FAURE: Gentlemen, your Honours, I should like, first of all, to observe that, as already indicated by the counsel who has just spoken, the Charter of

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this Tribunal provides that it shall not be bound by the formal rules concerning the burden of proof. But, apart from this, I consider that counsel's objection cannot be upheld, this objection being based on three considerations which he has enumerated, but which, as I understand, boil down to one single objection, namely, that this witness was an indirect witness.

I would like to emphasize the fact that I called Mr. van der Essen as a witness for the precise reason that he was a member of the official governmental Belgian Commission of Inquiry into the Study and Research of War Crimes.

It is in conformity with all legal procedure with which I personally am acquainted that a person who has made investigations in connection with criminal matters may be called before a court of justice to state the conditions under which the inquiry was made and the results arrived at. It is therefore not necessary that the witness who has just testified regarding an investigation should have been himself an eye-witness of the criminal activities which this investigation is intended to bring to light.

Mr. van der Essen, therefore, in my opinion, testified to facts of which he has personal knowledge, to wit: as regards the matter of Stavelot, he stated that he himself had heard witnesses and that he verified the authenticity of these testimonies.

As concerns the matter of the Library of Louvain, he testified as to the existing minutes of the commission of which he is a regular member.

I add that this procedure appears to me to have the advantage of avoiding the need to call a large number of individual witnesses to the witness stand. However, in order to have every possible guarantee regarding the facts laid before the Tribunal in evidence, I have decided to bring here the briefs and the texts of the testimonies to which the witness referred. I shall then be able to communicate to the defence the affidavit of the witnesses who were mentioned yesterday, and I think that this will give the defence ample guarantee.

I therefore ask the Tribunal to reject the objection as far as the admissibility of testimony is concerned, it being understood that the defence will pronounce upon the value and probative force of this testimony as it sees fit.

THE PRESIDENT: M. Faure, you said something about the affidavits of witnesses which you would furnish to the defendant's counsel. I understand that you intended also to put in the governmental report or the committee's report with reference to which the witness had testified, did you not?

M. FAURE: Yes, Mr. President.

THE PRESIDENT: But you intended also, as a matter of courtesy, to furnish the affidavits which were before that committee to the defendants' counsel; is that what you mean?

M. FAURE: Yes, if this meets with the approval of the Tribunal.

THE PRESIDENT: The governmental report, I suppose, does not actually annex the affidavits, does it?

M. FAURE: Yes, Mr. President, precisely.

THE PRESIDENT: It does? The affidavits are part of the report, are they?

M. FAURE: The report which was submitted does not contain the elements on which the witness depended yesterday with regard to certain points, because the investigation on Stavelot was very long and very conscientious and no resume was made at that time.

I said, therefore, that I proposed to submit these complementary elements as evidence and in this way to communicate them to the defence.

THE PRESIDENT: That is what I thought; that is to say, the report did not contain all the details which were in the affidavits or evidence?


THE PRESIDENT: Therefore, you thought it right, as a matter of courtesy, to allow the defendants' counsel to see those details upon which the report proceeded. The Tribunal understands that.

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The Tribunal will consider the motion which has been made at a later stage. You can now proceed with your argument.

M. FAURE: Your Honours, I should like, first of all, to point out to the Tribunal that since a certain amount of time has been given to witnesses and discussions, and as I do not wish to exceed the time limit which was announced, I am compelled to shorten to a considerable extent the presentation of the brief which I am now presenting on the subject of propaganda. I shall therefore ask the Tribunal kindly to excuse me if I occasionally hesitate during this presentation, inasmuch as I shall not follow my brief exactly.

I indicated yesterday the method employed by the Germans with regard to the freedom of public meetings and of association, which they suppressed. When they did uphold these rights, they exploited them to their own advantage. I should like now to say something about books and publishing.

The German authorities, first of all, issued an ordinance on 30th August, 1940, published in the Official Journal of 16th September, forbidding certain school books in France. We have already seen that they had done the same thing in Belgium.

Another step taken by the Germans was to prohibit a certain number of books of which they disapproved. I present in this connection Exhibit RF 1103, which is the "Otto" list, published in September, 1940. It is a list of 1,075 volumes forbidden by the Germans. I shall not, of course, read it to the Tribunal.

A second "Otto" list, longer than the first, was drawn up later and published on 8th July, 1942, and I present it as Exhibit RF 1104. The conclusion of this second document, which is the last page in my document book, gives a clear indication of the principles on which the German authorities worked. I read a few lines:

This method of procedure may have appeared fairly harmless at first, since only about 1,200 volumes were involved, but one can see the significance of the principle itself.

By this procedure the German authorities achieved the practical result they sought, which was essentially, apart from other prohibitions, the complete disappearance of serious and objective works permitting a study of German doctrines, the policy of Germany, and the philosophy of Nazidom.

Apart from prohibiting works already existing, the Germans naturally established a censorship. At first they proceeded in a veiled manner by making a kind of agreement with publishers in which the publishers themselves were made responsible for indicating which of the books on their lists appeared to them to be subject to censorship. I submit this censorship agreement as Exhibit RF 1105, and I wish, without reading it, to make an observation with regard to certain action, which is highly characteristic of the invariable German method.

In the printed brochure of this agreement, which is submitted in the original, there appears, in addition to the agreement itself, a notice drafted in terms which do not reflect French feeling. This notice was not drafted by the publishers upon whom the agreement itself was imposed, but was drafted by the Germans and published in the same brochure, which bears the words: "National Syndicate of Publishers," so that one might think that the French publishers accepted the phrases occurring in this preamble. For that matter, the attentive

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reader has only to see that this brochure does not bear the printer's name to realize that this is a German publication and not one put out by French publishers, for only the Germans were exempted from the French rule requiring mention of the printer's name.

The Germans did not limit themselves to this procedure, which was, apparently, rather too liberal; and later an ordinance of 27th April, 1942, entitled, "Concerning the Rational Use of Printing Paper," was published in the Official Journal of 13th May. This ordinance decreed, on pretext of the rational utilisation of paper, that all publications, without exemption, should bear the German authorisation number.

I point out also that in their control of paper the Germans had a very effective weapon with which to put a stop to French publishing. I submit as Exhibit RF 1106 the affidavit of M. Marcel Rives, Director of Internal Commerce at the Ministry of Industrial Production. In order to shorten the proceedings I shall not read this document. I may say shortly it makes it clear that the distribution of available paper stocks was made entirely under the authority of the Germans, and that the Germans reduced the amount of paper placed at the disposal of publishers in a proportion exceeding that of the general reduction in paper quotas as compared with the pre-war situation.

I must add that the Germans also took for their own propaganda publication a certain amount of the reduced paper quota allotted to the French publishers. Thus, they not only used for their propaganda the paper which they themselves had in Germany, but they also took some of the small amount of paper which they allotted to the French publishers. I should like to read, in this connection, just a few lines of the document which constitutes Appendix 2 of this exhibit, which I have just submitted. I merely read a few lines of this appendix, which is a letter from the German Military Command to the Ministry of National Economy, dated 28th June, 1943:

"More especially during the month of March, which you particularly mention, it has been impossible to allot the publishers any quantity from current production, as this was needed for urgent propaganda purposes."
The other aspect of this German activity in the publishing sphere was, in fact, the carrying on of an intensive propaganda by means of all kinds of pamphlets and publications. This propaganda literature is extremely tedious. I should like to mention only one detail, which shows the method of camouflage always employed by the Nazis. I have here a few German propaganda pamphlets which I shall submit, without reading them, as Exhibit RF 1106-bis. The first of these is part of a series entitled "England Unmasked." The first numbers of this series, taken at random, have on the fly-leaf, "Office of German Information, England Unmasked, No., etc." No attempt at concealment is made; and the reader knows what he has before him. But by some curious accident, No. 11 in the same series no longer bears the words, "German Office of Information," and we see instead, "International Publishing House, Brussels." Here again, however, we are warned of its origin, for the author's name is Reinhard Wolf, and this is a German name.

But here, by way of a final example, is a pamphlet entitled "The Pact against Europe," which is also published by the International Publishing House, Brussels. We know, after seeing the other specimens, that this publishing house is only a firm attached to the German (propaganda) office; but people who are not so well informed may believe the pamphlet to be a French or Belgian compilation, for in this case the name of the author is Jean Dubreuil.

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