The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
14th February to 26th February, 1946

Sixty-Sixth Day: Saturday, 23rd February, 1946
(Part 6 of 8)

[Page 261]

GENERAL RUDENKO: Yes, Mr. President.

Sir David has already expressed the point of view of the prosecution on the question raised by the defence counsel. I would like to add to what has already been said by Sir David regarding the statements made here by the defence counsel.

The position of defence counsel Exner is that the defence would not intentionally make defendants of the prosecutors and that the defence will resort to a method of analysis and explanation of events which will establish the motives,

[Page 262]

for in its opinion the motive is unknown, and in order to determine this motive it is necessary to examine the question : Were the Geneva and Hague Conventions at least violated by other powers at war with Germany? In my opinion - and I believe that I am also expressing the point of view of all the prosecution - it is really strange to hear such a statement on the part of a lawyer after a three-months trial and after the presentation of a mass of evidence by the prosecution.

The defence unquestionably has full right to submit proofs, documents and witnesses on all counts of the charges lodged against the defendants; and, as is evident from this morning's session, when the prosecution examined the request on behalf of the defendant Goering, as is known to the esteemed Tribunal, the prosecution gave its consent, in major part, to the calling of witnesses. But in the question raised by Dr. Exner we have positive divergences both of opinions and of principle.

The prosecution considers it impossible to deviate from the one fundamental and decisive factor, that this is a trial of the major German war criminals. The Tribunal is investigating atrocities perpetrated by the Hitlerite fascists, but does not overlook the fact that the defence certainly could submit, after examining and analysing the evidence already presented by the prosecution, this or that evidence which in some manner could change individual details. It is not, however, admissible, and it would indeed be a grave violation of the Charter, to turn the examination of these charges into a digression on questions having no relation whatever to this particular trial.

The prosecution therefore energetically objects to the requests for such documents as have absolutely no relevancy to this trial, and the examination of which would undoubtedly lead to a digression from the basic facts. This is what I wanted to add to what Sir David has said on behalf of the prosecution.

THE PRESIDENT: Before the Tribunal adjourns, as it will do now, I want to say that the next four defendants on the Indictment are required to name their witnesses and the subject matter of their evidence, and the documents and the relevance of the documents, by Wednesday next at 5 p.m. The Tribunal will hold a session similar to the one it has been holding this morning with reference to the defence of those defendants on Saturday next at 10 o'clock.

The Tribunal will now adjourn until a quarter past two.

(A recess was taken until 14.15 hours.)

THE PRESIDENT: I have an announcement to make: With reference to the pronouncement that I made this morning, the Tribunal may hear the applications for witnesses and documents of the defendants Kaltenbrunner, Rosenberg, Frank, and Frick before Saturday. That will depend upon the progress of the case. I have already stated that those applications must be deposited with the General Secretary by 5 p.m. on Wednesday.

Secondly, all the defendants, other than the first eight named in the Indictment, must make application naming their witnesses and the relevancy of their evidence, and the documents and the relevancy of the documents, by Friday next at 5 p.m.

Thirdly, the Tribunal will sit in closed session on Monday next at 4 p.m.

Perhaps I ought also to say that this does not affect - it does not refer directly to defendants' counsel who represent the Criminal Organisations. Their counsel will be heard after the close of the prosecution's case, as has already been announced.

Next would be Hess.

SIR DAVID MAXWELL FYFE: I only want to say that if the Tribunal did desire to hear anything on the question of reprisals, which was raised by Dr. Exner, Mr. Dodd is prepared, if the Tribunal would care to hear further matter on it.

THE PRESIDENT: Yes. The Tribunal would like to hear that now.

MR. DODD: May it please the Tribunal: I wish to say at the very outset that I have made a rather hurried preparation during the noon recess of the few

[Page 263]

notes on this subject, based on some work which we had done a little earlier. I am not altogether prepared to go into the matter to any great extent at this time, but I did want to call to the attention of the Tribunal a few of these notes that we have prepared. In view of Dr Exner's contention that some of the documents which are offered by the defence, or which they intend or hope to offer, are admissible on the theory or under the doctrine of reprisal, we would like to say to the Tribunal that the Convention of 1929 concerning the treatment of prisoners of war expressly prohibits altogether the use of reprisals against prisoners of war.

Parenthetically, I might say that as early as 1862 or 1863 the United States prohibited in its army instructions, reprisals against prisoners of war.

Secondly, I should like to point out that the Hague Regulations do not mention at all, in so far as we are able to ascertain, the use of so-called "reprisal action" against civilians.

It appears that the Brussels Conference of 1874, which accepted the unratified Brussels Declaration, so-called in International Law - that conference rejected or struck out several sections which were proposed by the Russians at that time, having to do with the use of reprisal action against civilians. I cite that because it is interesting, and indicates that the powers were certainly thinking about the matter of reprisals against civilians as early as then.

Thirdly, I should like to point out to the Tribunal that it is commonly said by the writers on this subject that, before reprisal action may be taken, a notice of some character is usually required, and this reprisal action must be directed against some specific instance which the first power believes to be offensive and which it believes may call for or justify the use of such action, so that some notice of some kind to the offending power seems to be required by the power which feels it has been offended.

I might say that in the prosecution's case in chief we specifically avoided any reference to the well-known incident during this war of the shackling of prisoners of war, because there, there was some colour of notice, and the matter was resolved by the powers concerned.

These are the points that we have had in mind during this brief recess this noontime, and if the Tribunal would like us to do so, we shall be glad to prepare ourselves further, and to be heard further on this subject at a later date.


SIR DAVID MAXWELL FYFE: May it please the Tribunal: The position with regard to the defendant Hess is set out in Dr. Seidl's communication to the Tribunal, and I have one or two comments to make on that on behalf of the prosecution.

THE PRESIDENT: Will you comment upon that, Dr. Seidl? Would it be convenient to follow the same course as we followed with Dr. Stahmer, and perhaps Sir David may say if he has any objection, first of all to the witnesses, one by one, that you are asking for?

DR. SEIDL (Counsel for defendant Hess): Yes. I should like, however, to request the Court to permit me a short preparatory remark and to make a motion.


DR. SEIDL: Your Honours : In view of this morning's discussion, I feel that the trial has now entered into a decisive phase, at any rate as far as concerns the defence. I consequently feel myself obliged to make the following application:

I should like to ask that the Court, at this point in the trial, should, when examining the relevancy of the evidence submitted by the defence, limit itself to the witnesses, and postpone examination of the relevancy of documents until a later time. As reason for this I permit myself to point out the following:

The Court issued a ruling regarding the submission of evidence by the defence for the first time on 17 December. In this ruling only witnesses and not documents were referred to.

[Page 264]

A second decision is that of the 18th February in which the following is said: "In order to avoid delay in securing the attendance of witnesses and procuring of documents, defence counsel shall . . ." and then follow the remaining contents of the ruling.

I am of the opinion, your Honours, that the question as to whether a document has relevancy or not can only be decided when I have this document in my own hands; in other words, when I am familiar with the precise contents of that document. It is impossible in a summary procedure such as is now being attempted, in which the admissibility of whole books is supposed to be decided on, to pass fair judgement as to whether a particular passage in a document has relevancy or not. This question can be decided clearly and definitely only if both the prosecution and the Tribunal have the document in their hands, i.e., the passages which the defence wishes to submit. I am convinced . . .

THE PRESIDENT: But, Dr. Seidl, I have stated twice this morning that the question of the final admissibility, whether of witnesses as evidence, or documentary evidence, can only be finally decided when the document is actually put in or when the witness is actually asked a question. What we are now considering is whether the document has any possibility of relevance and must, therefore, be searched for, if necessary, or sent for.

DR. SEIDL: Yes. If I understand you correctly, Mr. President, it is not necessary . . .

THE PRESIDENT: Dr. Seidl, the Tribunal thinks that you had better deal with your witnesses and documents now, and we do not desire to hear any further general argument on the subject. We desire to hear you upon the documents and the witnesses which you wish to call and produce.

DR. SEIDL: It is, then, a question of the documents I already have in my possession and not of the documents which I wish to obtain.

THE PRESIDENT: Yes, the documents which you are about to mention.

DR. SEIDL: It is a question of all the documents, and not simply the documents that must first be procured.

THE PRESIDENT: Well, we have before us your application for certain witnesses and certain documents, and we wish to hear you upon that application.

DR. SEIDL: Very well, but I must draw up a list by next Wednesday for the defendant Frank, and I should like to know whether those documents should be mentioned which I already have in my hands.

THE PRESIDENT: Well, first of all you have better deal with your witnesses in the same way that Dr. Stahmer did.

DR. SEIDL : The first witness that I intend to call is Fraulein Ingeborg Berg, a former secretary of the defendant Rudolf Hess.

SIR DAVID MAXWELL FYFE: My Lord, I had not seen this list until a moment ago.

THE PRESIDENT: The witness he wants to call is Ingeborg Berg, is that right?

SIR DAVID MAXWELL FYFE: If Dr. Seidl tells me that this lady was a private secretary of Hess, it seems to me, prima facie, reasonable that there should be a chance of discussing the matter. As a general rule it seems to me reasonable that a private secretary should be called who can corroborate the matters with which the defendant was dealing. I do not think any of my colleagues will disagree on that point.

DR. SEIDL: My second witness is the previous Gauleiter of the Foreign Organisation of the N.S.D.A.P., Ernst Bohle, who is imprisoned here.

THE PRESIDENT: Dr. Seidl, you have not really adopted the procedure which the Tribunal asked you to adopt. You have not specified the relevance of the evidence which you wish to produce. You have referred to some previous application. The Tribunal has not got all these applications before it at the

[Page 265]

moment and therefore we wish -to know in what respect the evidence of Ingeborg Berg is relevant.

DR SEIDL: The witness Ingeborg Berg was the secretary of the defendant Hess at his liaison offices in Berlin. She is to make statements regarding the time when Hess began making preparations for his flight to England, and what sort of preparations they were.

She is further to testify as to what Hess's attitude was toward the Jewish question in a particular case, namely, in connection with the pogrom of 8 November, 1938.

THE PRESIDENT: Is she in Nuremberg?

DR. SEIDL: She is here, in Nuremberg.

THE PRESIDENT: You may deal with the second witness now, if you like.

DR. SEIDL: The second witness is the previous Gauleiter of the Foreign Organisation of the N.S.D.A.P., Ernst Bohle. He is imprisoned in Nuremberg.

He is to testify whether the Foreign Organisation of the N.S.D.A.P. developed any activity which might give it the appearance of a fifth column.

SIR DAVID MAXWELL FYFE: That is one of our allegations against the Auslands organisation, and therefore the second witness does seem relevant. I make no objection.

DR. SEIDL: Walter Schellenberg is the third witness for whom I may wish to apply. Whether I shall however do so I can only judge after the Tribunal has given me the opportunity to speak to this witness, who is here in Nuremberg. I do not know whether the witness can give pertinent evidence concerning the period in question, that prior to 10 May, 1941. I should like to avoid occupying the time of the Tribunal with the hearing of a witness, if he cannot offer pertinent evidence. I consequently ask the Tribunal first of all for permission to speak to him for the purpose of getting information.

THE PRESIDENT: Do you have anything to say about that, Sir David?

SIR DAVID MAXWELL FYFE: I understand that this is the witness Schellenberg who was called for the prosecution.


SIR DAVID MAXWELL FYFE: I submit that it would be very undesirable to have private conversations with witnesses before cross-examination If Dr. Seidl wishes to cross- examine the witness Schellenberg further, then he ought to apply to the Tribunal to cross-examine him in open court.

THE PRESIDENT: Well, I think I remember that some of the defendants' counsel asked to postpone the further cross- examination of Schellenberg.

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