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-Seventh Day: Friday, 8th March, 1946
(Part 1 of 9)

[Page 225]

THE PRESIDENT: I have three announcements to make.

First, to avoid unnecessary translation, defence counsel shall indicate to the prosecution the exact passages in all documents which they propose to use, in order that the prosecution may have an opportunity to object to irrelevant passages. In the event of disagreement between the prosecution and the defence as to the relevancy of any particular passage, the Tribunal will decide what passages are sufficiently relevant to be translated. Only the cited passages need be translated, unless the prosecution require translation of the entire document.

Second, the Tribunal has received an application from Dr. Nelte, counsel for the defendant Keitel, inquiring whether a defendant, in order to support his memory, may make use of written notes while giving oral evidence. The Tribunal sanctions the use of written notes by a defendant in those circumstances, unless in special cases the Tribunal orders otherwise.

Third, cases have arisen where one defendant has been given leave to administer interrogatories to, or obtain an affidavit from, a witness who will be called to give oral evidence on behalf of another defendant. If the witness gives his oral evidence before the case is heard in which the interrogatory or affidavit is to be offered, counsel in the latter case must elicit the evidence by oral examination, instead of using the interrogatory or affidavit.

That is all.

I now call upon counsel for the defendant Goering.

DR. NELTE (counsel for the defendant Keitel): Mr. President, in yesterday's afternoon session, you observed that application for evidence No. 2, which I had submitted as a supplement, had not yet been discussed orally. I was unfortunately not present at the afternoon session yesterday. It is a question of a subsequent, formal supplement to my application for evidence. Regarding the witnesses Westhoff and Wielen, both of these witnesses had already been granted me in the open Tribunal session. I submitted these names again only in order to complete my application for evidence.

As an addition I mentioned only State Secretary Stuckhart, a witness who has already been granted me previously by a decision of the Tribunal. I believe, therefore, that I do not need to discuss this supplementary application, and that the prosecution has no objection to this action.

THE PRESIDENT: Yes, Dr. Nelte, General Westhoff and Wielen have already been granted to you, and there is no need for any further application.

DR. NELTE: Is State Secretary Stuckhart also granted me, your Honour?

THE PRESIDENT: Westhoff and Wielen have already been granted to you, and there is no need for any further application.

I am afraid it is difficult to remember these names. I think that Stuckhart has been granted to you.


THE PRESIDENT: Yes, I am told he has.

[Page 226]

DR. THOMA (counsel for the defendant Rosenberg): Mr. President, at yesterday's afternoon session my name was also mentioned, in the following connection. I had up till then submitted only written applications and I was to present them orally. I assume that this refers to the written application which I handed in with my document and witness list, in which, in a rather lengthy written application, I requested that I might have permission to submit in evidence as documents, quotations from theological and philosophical works which were considered important when Rosenberg held office. I beg your Honour to inform me, whether this is the application in question.

I should like to repeat: The President told me yesterday that I should repeat my written application orally. Therefore I should like to ask whether this refers to the written request that I handed in with my list of witnesses and documents.

THE PRESIDENT: Dr. Thoma, so far as the Tribunal knows, everything will be covered by the written order which the Tribunal will make upon your application. It is not convenient, really, to deal with these matters now by way of oral requests, but everything that is in your written application will be covered by a written order of the Tribunal. It will be subject, of course, to the order which I have announced this morning, in order to secure that there will be no more translation than is absolutely necessary.

DR. STAHMER (counsel for the defendant Goering): Mr. President and Gentlemen of the Tribunal, before I start with my presentation, I beg to request two supplementary applications for evidence. I am cognizant of the fact that supplementary requests as such should be put in writing. But since it is a question of several requests, I should like to have your decision whether I should submit these applications now or whether the Tribunal desires a written request.

THE PRESIDENT: You may put your request now verbally, but we would prefer to have it in writing afterwards as soon as possible.

DR. STAHMER: I name first Major Buetz, who is interned here in Nuremberg, as a witness for the following facts: Reichsmarshal Goering repeatedly opposed, in the summer of 1944, the measures which Hitler had ordered against aviators taking part in terror attacks. Furthermore, he knows that no order was issued either by the Luftwaffe or by the Wehrmacht corresponding to Hitler's orders regarding terrorist aviators. Finally he can give evidence in regard to the following: An officer of the Luftwaffe in May 1944 in Munich protected an airman, who had bailed out, from the lynching which the crowd wanted to carry out. Hitler, who had knowledge of this incident, demanded of Goering the name of this officer, and that he be punished. In spite of repeated inquiries on Hitler's part, Goering did not give the name of this officer, although he knew it, and in this way protected him.

This is the Application regarding the witness Buetz.

Another supplementary request is concerned with the following: In the session of February 1946, the Soviet prosecution submitted that a German military formation, "Stab 537" Pioneer Battalion, carried out mass shootings of Polish prisoners of war in the forests near Katyn. As the responsible leaders of this formation, Colonel Arenz, 1st Lieutenant Rex, and 2nd Lieutenant Hott [NB. These are the equivalent American military ranks.] were mentioned. As proof the prosecution referred to Exhibit USSR 64. It is an official report of the Extraordinary State Commission which was ordered to investigate the facts of the well-known Katyn case. The document I have not yet received. As a result of the publication of this speech by the prosecution, in the Press, members of the Staff of the Army Group Centre to which Staff 537 was directly subordinate, and which was stationed four to five kilometres from Staff 5 3 7, came forward. These people stated that the evidence upon which the prosecution has based the statement submitted was not correct.

[Page 227]

The following witnesses are mentioned in this connection.

Colonel Arenz, at that time Commander of 537, later Chief of Army Armament and Leader of the Auxiliary Army; 1st Lieutenant Rex, probably taken as a prisoner of war at Stalingrad; Lieutenant Hott, probably taken prisoner by the Russians in or near Koenigsberg; Major General of Intelligence Troops Eugen Oberhauser, probably taken prisoner of war by the Americans; 1st Lieutenant Graf Berg, later Ordnance Officer with Field-Marshal Kluge, a prisoner of war in British hands in Canada. Other members of the units which are accused are still to be mentioned.

I name these witnesses to prove that the conclusion as to the complicity of Goering drawn by the prosecution in the above-mentioned statement is not justified according to the Indictment.

This morning I received another communication bearing on the same question, which calls for the following request for evidence. Professor Nahwiel, professor of forensic medicine at the University of Geneva, carried out investigations of the bodies at that time when with an international commission at Smolensk. He established from the state of preservation of these corpses, from the notes and other means of evidence found in the pockets, that these measures had already been performed in the year 1940.

Those are my requests for evidence.

THE PRESIDENT: If you will put in those requests in writing, the Tribunal will consider them.

DR. STAHMER: And now I come to the . . .

THE PRESIDENT: Just one minute. Dr. Stahmer, if you would communicate your written application to the prosecution, they would then be able to make a written statement if they have any objection to it. You will do that as soon as possible. Let us have both your written application and the prosecution's answer to it.

DR. STAHMER: The tribunal has ordered in its decision of 11th December, 1945, that the defence is entitled to only one speech. This shall take place only after the conclusion of the hearing of the evidence. The Tribunal decided some time later that explanatory statements may be permitted at the present stage of the proceedings in connection with the presentation of documents by the defence. The witnesses have already been named by me. A decision has been made concerning their admission, except for today's request and with the Court's permission, I shall call a witness shortly. Before I do that, I wish to make the following comments on the documents to which I shall refer during my final speech:

The prosecution has charged the defendant repeatedly with the violation of the Treaty of Versailles. In the opinion of the defence, this charge is not justified. Detailed statements on this question belong to the concluding speech of the defence and will therefore be dealt with there.

The present part of the proceedings deals only with the production of documents which will be used to support the contention that the Treaty was not violated by Germany but that the German Reich was no longer bound by it.

I submit that the fourteen points of the American President Wilson, which were the basis of that Treaty, are commonly known, and therefore do not need further proof, according to Paragraph 21 of the Charter.

The Treaty of Versailles has already been submitted to the Tribunal. It was published in the Reichsgesetzblatt 1919, Page 687. Out of this Treaty of Versailles, Article 8 and Part 5 of this Treaty are important for its interpretation. These provisions insofar as they are of interest here, read as follows. I quote the first four paragraphs of Article 8:-

"The members of the League recognize that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations.

[Page 228]

The Council, taking account of the geographical situation, and circumstances of each State, shall formulate plans for such reduction for the consideration and action of the several Governments.

Such plans shall be subject to reconsideration and revision at least every ten years.

After these plans shall have been adopted by the several Governments, the limits of armaments therein fixed shall not be exceeded without the concurrence of the Council."

These were the first four paragraphs of Article 8.
"In order to render possible the initiation of a general limitation of the armaments of all nations, Germany undertakes strictly to observe the military, naval and air clauses which follow."
These regulations infer that not only Germany had to disarm, but also the signatories of the pact were bound to disarm likewise. Germany, however, was committed to start disarmament first. Germany completely fulfilled this commitment.

On the 17th of February, 1927, Marshal Foch stated: "I can assure you that Germany has actually disarmed."

Therefore, the signatories of the pact had to fulfil their commitment to disarm. As they did not disarm, Germany was no longer bound by the pact according to general principles of law, and she was justified in renouncing her obligations.

This interpretation agrees with the point of view which has been expressed by French as well as by English statesmen. Therefore, I should like to refer to the speech made by Paul Boncour on 8th April, 1927, in which Boncour stated as follows: I quote from Document Book 1, Page 28.

"It is correct that the introduction to Part V of the Treaty of Versailles concerns the limitation of armaments, which was imposed on Germany as a prerequisite and as the forerunner of a general limitation of armaments. This brings out very clearly the difference between the armament restrictions of Germany and other similar armament restrictions, which in the course of history have been imposed after the conclusion of wars. This time these regulations - and in this lies their entire value - have been imposed not only on one of the signatories to the Treaty, but they are rather a duty, a moral and legal responsibility for the other signatories to proceed with a general limitation of armaments."
Further, I should like to refer to the speech by David Lloyd George on 7th November, 1927, in which he particularly describes the memorandum to the skeleton note of 16th June, 1919, as - and I quote from the Document Book 1, Page 26:-
"A document which we handed Germany as a solemn pledge on the part of Britain, France, Italy, Belgium and twenty other nations to follow Germany's example after she was disarmed."
The Treaty of Versailles was not only felt by the German people to be a bitter injustice. There were numerous voices even in foreign countries that called the Treaty exceedingly unfair for Germany. I am quoting the following from Rothermere's "Warnings and Prophecies," Document Book 1, Page 30:-
"Germany was justified in feeling that she had been betrayed in Versailles. Under the pretext ..."
MR. JUSTICE JACKSON (interposing): I call the Tribunal's attention to the fact that the documents which are now being read into the record are documents which, as I understand it, were excluded as irrelevant by the Tribunal when that matter was previously before it. They are matters of a good deal of public notoriety and would not be secret if they were not in evidence; but I think the reading of them into the record is in violation of the Tribunal's own determination.

THE PRESIDENT: Dr. Stahmer, the Tribunal had suspected that these documents had been excluded, and they have sent for the original record of their orders.

[Page 229]

But I must say now that the Tribunal expects the defendants' counsel to conform to their orders and not to read documents which they have been ordered not to read.

(At this point the defendant Hess was led out of the courtroom.)

DR. STAHMER: Shall I continue?


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