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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-Fifth Day: Wednesday, 6th March, 1946
(Part 6 of 6)

[Page 197]

DR SERVATIUS: I agree with the prosecutor and need only one of the three witnesses. Should none of the witnesses be found, I have in the document book an affidavit of one of Sauckel's sons who was also present at the conference.

Witness 34, Skorzeny, will testify to the general connection between the Gauleitung and the concentration camps; in other words, to what extent the Gauleitung, by virtue of its official position, had knowledge of what went on in the concentration camps.

Witness 35, Reich Treasurer of the NSDAP, Schwarz. This question has been settled. I have received my interrogatory with the answers.

Witness 36, Frau Sauckel, was previously approved by the Tribunal. I can see that certain objections might be raised but the essential point is this: Among other things, the witness repeatedly heard that the defendant Sauckel was criticized for treating foreign workers too well and for manifesting an international rather than a nationalistic attitude. That is one point. The other point is that which concerns the conspiracy, viz., that Sauckel kept aloof and had very little intercourse with other members of the Party. He worked consequently on his own and knew very little about major developments in policy.

That concludes my remarks on the list of witnesses.

THE PRESIDENT: Dr. Servatius, you probably realize that you have asked for a very much larger number of witnesses than other counsel and I have, therefore, to ask you whom you regard as the most important witnesses. It may be that it will be necessary to limit the number as you are aware that we are directed to hold an expeditious trial, and so would you kindly give me the list of those witnesses whom you regard as the most essential.

DR. SERVATIUS: If I have time till tomorrow to think it over, I shall try to reduce the number. It is difficult because the field is so large. Also I did not receive a trial brief for Sauckel defining charges in detail, so that I must be prepared for all eventualities. I must define my position with regard to many points - food, wages, leave, workers, transport, illness.

THE PRESIDENT: You will not forget that many of the defendants are concerned in various aspects and they have neither asked for nor been allowed this very large number of witnesses.

DR. SERVATIUS: May I turn to the documents now?

THE PRESIDENT: Well, I rather thought that perhaps Sir David was going to get in touch with you after the adjournment and, perhaps, you could then deal with the documents more successfully.

SIR DAVID MAXWELL FYFE: I think that would be time usefully spent, my Lord, if the Tribunal would allow it.


I call on Dr. Exner on behalf of the defendant Jodl.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, Dr. Exner and Professor Jahreiss were good enough to approach the prosecution on this matter and put forward certain considerations, including the names of the witnesses to whom they attached the greatest importance, and over a considerable part of the field there is no difference between us. On certain matters there is a difference of principle, which I shall point out to the Tribunal in a moment, but the effect is, if I might run through the application, that the prosecution will not offer any objections to General Winter, who speaks as to the organization of the OKW and the respective duties of the defendants Keitel and Jodl. They will not offer objections to Major Professor Schramm, although the need for his evidence is perhaps not so obvious. On the other hand, with regard to No. 3, the evidence of Major Kipp, that the fettering or chaining of prisoners took place at Dieppe,

[Page 198]

and as to the cause of the "shooting of Commandos" order, the prosecution submit that these matters are irrelevant. With regard to Major Buechs, Dr. Exner tells me that he will be satisfied with interrogatories. The prosecution does not object.

With regard to No. 5, General von Buttler, Dr. Exner suggests that he should be a witness, and the prosecution does not object.

With regard to No. 6, the prosecution is content that there should be interrogatories.

With regard to Vice-Admiral Burkner, the prosecution is prepared to take no objection.

Then with regard to No. 8, General Buhle, a questionnaire has been sent off.

With regard to No. 9, it is suggested that there should be interrogatories.

No. 10, interrogatories.

With reference to No. 21, the Tribunal has allowed an interrogation in each case, and in many cases a questionnaire has been sent off, and therefore the prosecution could not object at this stage when action has been taken on the Tribunal's suggestion. That would mean that the defendant Jodl would have four oral witnesses, apart from the interrogatories which have already been largely approved by the Tribunal. The objection of the prosecution to No 3 is maintained.

DR. EXNER: I should like, first of all, to mention No. 3, Kipp. The prosecution has its objections to this witness. We need him to give information as to how the Hitler order of 18th October, 1942, that is, the Hitler order regarding Commandos, originated. This order has been made the basis of a higher incriminating charge against Jodl and it is of great importance to hear how this order came to be given. It concerns the killing of Commandos dropped by planes or landed from boats. As I understand it, the objection to this witness and this subject generally is that it appears to concern, for the most part, the events of Dieppe, in consequence of which this order was admittedly issued. But we are not concerned with an exact portrayal of what actually happened at Dieppe. The witness Kipp is, in any case, unable to do so, since he was in the OKW and was not a witness of those events. We are concerned with something else, namely, the fact that certain reports were presented to the OKW which caused this order to be made. We are furthermore concerned with the following facts to which Kipp is in a position to testify.

When these reports about the events at Dieppe arrived, the Fuehrer was enraged, and ordered strict measures to be taken against these Commandos. Jodl refused to issue or draft the order as demanded by the Fuehrer. When pressed, he said he did not know what reason he could give for that order.

Jodl then passed the matter to Major Kipp for investigation, as it was peculiarly complicated from a legal point of view and Kipp, being a professor of law, should know something about legal matters.

Moreover, from the Wehrmacht Operations Staff of Jodl, a draft of a proposed order was issued regarding this matter and a poll was taken of opinions held on the question by members of the Staff and of other officers. Varying opinions were received from the Auslands Abwehr, the legal department, etc. As in the meantime ten days had passed, Hitler lost patience and sat down and drew up the entire order himself, as well as a further decree, establishing the reasons for the order. Jodl, therefore, was not the author of this order. All that he did was to express his doubts regarding it. The story of the origin of the order of 28th October, 1942, which, as I have said, has been made the basis of a. grave accusation against Jodl, is of the utmost importance. Kipp will testify to it. Further, it has already been said that there is no objection to witness No. 5, Buttler.

As to No. 4, I am satisfied with an affidavit or an interrogatory, but I must reserve the right to call him as a witness, should the interrogatory be inadequate or not clear. I hope, however, that this can be avoided. [Page 198] Regarding witness No. 7, Vice-Admiral Gottlieb Burkner, I should like to point out that he is the same Admiral Burkner who was the subject of discussion this morning in connection with the witnesses for the defendant Raeder. Perhaps that will clear up the difficulty about Raeder.

Regarding No. 8, the interrogatory has already been sent out. We have, however, distinctly reserved the right to resort to oral testimony, should the interrogatory again prove unsatisfactory. Otherwise, I have nothing further to say on the subject, and the prosecution has no grounds for protest.

I have just received a note, apparently from Goering's counsel, saying: "I had relied on the fact that Buechs would come as a witness." I had intended to call Buechs as a witness and I only agreed to forgo his personal appearance in the course of the discussion.

THE PRESIDENT: Which witness were you talking about?

DR. EXNER: Witness No. 4.

THE PRESIDENT: Do you say you are asking for him as an oral witness?

DR. EXNER: Goering has also asked for him as a witness.

THE PRESIDENT: Has he been allowed to the defendant Goering?

DR. EXNER: He had counted on my calling him as a witness, and on my being able to question him. He is here in Nuremberg.

May I now turn to the documents?


DR. EXNER: Points 1 and 4. The prosecution has no objections. I submit the entire document to the Tribunal without a translation of anything except the part which I am going to read, and which deals with an important point which must be clarified. If I am dealing with a large document and I only need to quote one paragraph, it is sufficient if I submit the original document to the Tribunal in its entirety and include in my document book only the particular paragraph in question and its translation.

THE PRESIDENT: That is right.

DR. EXNER: Regarding Points 5 and 6, the prosecution objects and I withdraw these two documents.

Point 7 is a curious one. That is Document 532, submitted by the prosecution and to which I made objection at the time. The document was removed from the protocol, and now I myself apply for this document to be submitted again. This is for the following reason: The document is an order that was submitted to Jodl in draft form. Jodl did not approve it, crossed it out, and sent it back without signing it. This draft was submitted by the prosecution and I objected to its being presented as if it were actually an order signed by Jodl. I want to submit it now in order to prove that Jodl, by making it impossible for this order to be carried out, deprived an illegal order of its effectiveness.

Regarding Points 8 to 15, the prosecution also has no objection.

Regarding Points 16 and 17 . . .

SIR DAVID MAXWELL FYFE: Points 16 and 17 are the subjects of objections from the prosecution. Point 16 relates to the English Close Combat Regulations of the year 1942, and 17 is the English order for the operation Dieppe of the same year. With regard to the Close Combat Regulations, the only relevance they could seem to have would be in relation to an objection to this form of training, and in the submission of the prosecution it would be irrelevant on the question of the Commando order.

[Page 200]

With regard to the question of shackling, I think the simplest way of dealing with it is to point out that the prosecution, as my friend Mr. Dodd pointed out, have not introduced that matter into their case, and therefore it would appear that the English order in question was not relevant.

Apart from the two general objections, neither of these matters seem connected with points in the case.

I might just indicate No. 20, which is another objection. That is on the same basis as the old document, which I think the Tribunal has had before, the implication of the German Foreign Office in breaches of International Law, and it is sought for, as the Tribunal will see, as evidence of the reports that were made to the High Command of the Wehrmacht, and that gave occasion to take reprisal measures.

Then a similar ground of objection applies to No. 21, a history of the White Russian Partisan War, which is sought for as evidence that the danger of bandit warfare gave cause for undertaking sweeping counter-measures.

These objections can be all grouped together. They fall under the general objections to tu quoque evidence which the prosecution has maintained throughout the trial.

DR. EXNER: May I say something about this? As far as 16 and 17 are concerned , we just want to see these documents. We wish to see them first in order to judge whether or not we want to submit them in evidence. I have stated so at the foot of the page.

As to irrelevance, we do not say that we regard these orders as illegal. But if for instance, in the Close Combat Regulations, English soldiers are ordered to perform actions for, which our soldiers are censured, it would constitute a discrepancy of some importance. For in that case it would be obvious, that the British Government regarded such methods of warfare as legitimate. If, however, such methods are legitimate for them, they must also be legitimate in our case, since it is impossible to have two standards in these matters. In order to establish this, we wanted to see these Close Combat Regulations. That is No. 18.

No. 19 is a similar case, but I can more readily understand that that was refused, as it may be a secret order. No. 20, the White Paper . . .

THE PRESIDENT: Sir David didn't deal with 19, did he? He only dealt with 16, 17, 20 and 21.

DR. EXNER: Yes. 18 and 19 have not been objected to.

THE PRESIDENT: As I understood it, his objection to 16 and 17 was that there was no complaint against the German forces, either with reference to close combat or with reference to shackling, in the Indictment.

DR. EXNER: If these Close Combat Regulations should happen to include illustrations - there are actually pictures - of the shackling of prisoners and orders for doing so, one would be obliged to say that the British Government does not consider this kind of treatment illegal and that if it happens on our side we cannot be censured for it. It is difficult for me to estimate their importance to us, because I have not had these Close Combat Regulations in my own hands. If I had them, I could make my application. I should like to know whether I have to include them in my evidence or whether there is no need.

No objection has been raised to 18 and 19. As to 20, these are the White Papers already approved for Goering. Consequently, I need not ask for them myself.

Regarding Point 21, I am convinced that this cannot be settled with a charge of tu quoque. It is a Russian book, describing partisan warfare. The author of this book is a Russian who, himself, participated in partisan warfare for several years as chief of a staff, and he writes from personal experience.

We do not assert that the Russians did the same as we did, which would be a tu quoque argument: I should like to have this book for another reason. To

[Page 201]

understand and appreciate our regulations regarding partisans, one must know these partisans. One must have knowledge and experience of their methods, and be able to appreciate the danger which they represented. This Russian book describes all that, and is therefore important. The author himself, as stated, played an active part in the warfare carried on against the partisans.

In the Indictment it is stated: The war against the partisans was simply an excuse for the annihilation of Jews, Slavs and so on. This book shows that the war against the partisans was a real war and not an excuse on our part.

If the book is unobtainable, I ask permission to read the short account of the contents recently published in the "Stars and Stripes". To conclude, it should be emphasized that the book was written by a Soviet Russian and for this reason cannot be assumed to have an anti-Russian bias.

Therewith I have concluded my presentation.

THE PRESIDENT: Sir David, the Tribunal would like to know what your argument is with reference to 21.

SIR DAVID MAXWELL, FYFE: I was opposing it for the reason that was given. The book is asked for as evidence that the danger of bandit warfare gave rise for undertaking sweeping counter-measures.

Now, broadly, the case for the prosecution is that the counter-measures against partisans constituted atrocities, and evidence of that kind has been given. It is, in my submission, no defence to the committing of atrocities against partisans, of the kind given in evidence, that their warfare was extensive, or very fiercely or bravely waged. This is just the tu quoque argument in its nakedness, because partisans fight you, therefore you can burn their villages, shoot their women, and kill their children. That is the argument which we say is irrelevant and is inadmissible.

My Lord, I should like to say that I have no objection, if any of these documents can be obtained, to Dr. Exner looking at the documents: on that point to which the prosecution attached importance, I thought it right - and I know my colleagues desired it - that I should make our position clear.

THE PRESIDENT: That concludes your address, Dr. Exner, does it?

DR. EXNER: May I add something concerning the last point. I am, of course, perfectly aware that those atrocities, as described here, cannot be justified by the activities of the partisans, but the more violent the actions of the partisans became, the harsher - of necessity - were the German counter- measures, so that there is, after all, a connection between these matters.

THE PRESIDENT: The Tribunal will consider your argument.

The Tribunal will now adjourn.

(The Tribunal adjourned until 7th March, 1946, at 1000 hours.)

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