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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
4th April to 15th April, 1946

One Hundred and Third Day: Tuesday, 9th April, 1946
(Part 2 of 12)

[Page 143]

DR. THOMA: I am very much disconcerted by the accusation that I haven't followed the rulings of the Tribunal. During discussions regarding which documents were admissible, I explained in detail just which philosophical works I wanted to quote from and why. It has been stated during the case for the prosecution that Rosenberg invented his philosophy for the purpose of aggressive war and for the committing of war crimes. I considered it my duty to prove that this so- called national ...

THE PRESIDENT: Will you tell the Tribunal where the prosecution states that he invented his philosophy, whether in the Indictment or in the presentation?

DR. THOMA: I can prove it. It appears in the Churchill speech, and also in the speech by Justice Jackson there are similar expressions that Rosenberg's philosophy had led to that.

[Page 144]

THE PRESIDENT: You say it appears in Churchill's speech?


THE PRESIDENT: What have we got to do with that? I asked you whether the prosecution alleged it in the Indictment or alleged it in the course of the presentation of the prosecution, and you answer me that Mr. Churchill ...

DR. THOMA: No, it is not Churchill, but rather Mr. Justice Jackson. In his presentation he said things, the sense of which was about the same. Consequently I felt that it was my duty to present to the Tribunal that philosophy which, before Rosenberg, raised similar arguments and which is indeed the philosophy of the entire world.

Regarding the presentation of the document book, the following happened: The translating department asked me to submit my document book without delay, as they had time at the moment to deal with it before it was handed to the Tribunal. So the translating department actually received this document earlier than the Tribunal. But the Tribunal in its ruling of 8th March, 1946, had expressly given me permission to use quotations from these philosophical works; it refused me only the anti-Semitic works of Goldstein, Elbogen, and Heman-Harling. Consequently I informed the Tribunal immediately that documents were contained in my document book which had not been granted me by the Tribunal.

And now, your Honours, something of decisive importance: I have just ascertained that the quotation which Mr. Justice Jackson has just read comes from a French research scholar, M. Larouche.

Secondly, I have marked with red pencil those passages in my document book which were to be translated. The passage quoted by Mr. Justice Jackson was not marked in red and was not meant to be included in the document book. This is a regrettable error.

Thirdly, I should like to refer to the fact - my attention has just been called to this - that the passage reads word for word: "Rosenberg developed the philosophical technique of the conspiracy and thus created an educational system for an aggressive war." [NB. This passage epitomises view expressed by Mr. Walter W. Brudno (not Mr. Justice Robert H. Jackson) in his presentation of the case against Alfred Rosenberg: vide Part 4, p. 118.] That was the expression of Mr. Justice Jackson's presentation. I therefore felt justified in pointing out that this entire philosophy was already in the air and was a philosophical necessity which had to make its appearance. I therefore believe that I have cleared myself of the accusation of not having obeyed the ruling of the Tribunal.

THE PRESIDENT: Well, Dr. Thoma, were these documents sent to the press-room or were they sent to the translating department?

DR. THOMA: In my opinion, they were sent to the translating department, since this department had told me that they had time at the moment but expected a lot of work soon. I had my document ready and I gave it to the translating department.

THE PRESIDENT: Mr. Justice Jackson stated apparently that they had been sent to the press-room and were being disseminated to the public in that way, but on the outside of each document book there is this notice: That they are not to be publicised until they are presented before the Tribunal in open court and then only that portion actually submitted as evidence. Therefore, any documents which are sent to the translating room are not disseminated, or ought not to be disseminated to the Press and ought not to be publicised until they are presented before this Tribunal.

There seems to be a number of misunderstandings about this which seems to have arisen principally from the fact that you submitted your documents to the translating department before they had been submitted to the Tribunal, and therefore some of them got translated which were subsequently denied by the Tribunal. Is that right?

DR. THOMA: No, your Honours, that is not right. This happened rather, first

[Page 145]

of all, in the various offices of the translating department. I gave the translating department this document book because they asked me to do so, and then ...

THE PRESIDENT: I did not say who had asked whom. I said that the translating department got the documents for translation - they received them before they were submitted to the Tribunal, and, in consequence, they translated certain documents which were subsequently denied by the Tribunal.

DR. THOMA: The only rejected works were, as is known, the three anti-Semitic works. That these documents reached the Press I naturally did not know. I was merely trying to relieve the work of the translating department. I subsequently informed the General Secretary that I had submitted the document book and I referred him to it. The quotations from my philosophical works, however, were granted to me later. I want to point out again that I was always of the opinion that this was an entirely internal matter and that these documents could by no means reach the Press. I was not informed about that. I am very well aware that quotations not read in court are not supposed to reach the Press. I have adhered to that rule, that nothing should reach the Press which has not been stated in court.

THE PRESIDENT: As you no doubt know, the first granting of documents when they are applied for is expressly provisional, and afterwards you have to submit your documents in open court, as Dr. Horn did, and then the Tribunal rules upon their admissibility; and this other rule was introduced for the purpose of preventing undue translation. It was decided then that after the Tribunal had given its provisional ruling as to what was provisionally relevant, you should then submit the passages you wanted to quote to the prosecution counsel to give them an opportunity to object, so that the translating department should not be unduly burdened. That, as you have explained and as Sir David Maxwell Fyfe has said, was not carried out in your case, partly, possibly, because as you say the translating division was prepared to undertake certain work. Therefore, documents were submitted to it which the Tribunal subsequently ruled to be inadmissible.

MR. JUSTICE JACKSON: May I correct something which has led to misunderstanding? I did not mean to say that counsel had sent the documents to the Press in the sense of a newspaper Press. They were sent to the press, the printing press. They were, of course, printed. The 260 copies we were ordered to print contained the usual release notice that they were not to be released until used. They have not reached the Press, and I did not mean to say that they had been sent to the newspaper Press, they were sent to our printing press.


DR. DIX (counsel for defendant Schacht): Your Honours, before a ruling is made as to the matter under discussion, I should like to make just a few remarks, not referring to the case of Rosenberg but to the defence in general. Very serious accusations against the entire defence have been made. The expression was used that the prosecution was not the Press agent of the defence. The accusation was raised that the defence was trying to make propaganda, and then these accusations reached their peak in the most serious charge which one can possibly make in reference to a participant in a trial, that of contempt of court.

In the name of all defence counsel I refute these heavy accusations with the best and strongest argument possible, that of an absolutely clean and pure conscience in this respect. Anyone who has listened to the debate of the last 30 minutes must have recognised that the differences of opinion, which have cropped up here and on which the Tribunal will now have to announce a decision, are in turn due again to misunderstandings which have occurred in this court-room.

Mr. Justice Jackson has generously made it clear that he was not talking about the newspaper Press, when he said "press," but about the printing press. My colleague Dr. Thoma has stated that the only reason why these documents went to the translating department was the fact that the translating department, very understandably and reasonably from its point of view, had said, "We do not have

[Page 146]

very much work at the moment. Please let us have it, and we can start to translate it." I believe that we could avoid all these difficulties if we mutually agree that both parties, the prosecution and the defence, are working with the best will and much loyalty' and that the thought of deliberately disregarding the rulings of the Tribunal does not exist. Errors and mistakes can always happen. May I just remind you that this leakage of news to the Press - that some announcements were released to the Press before they were actually the subject of proceedings here in court, that that was something that happened quite frequently at the beginning of the trial. I do not want to mention examples since the Tribunal knows that it wasn't the defence - I don't know who it was, at any rate it was not the defence. But I make no charges. Things like that do happen, and such an apparatus as this trial must have a running-in period. Bad intentions did not exist at that time either. But I remind you that it was we, the defence - I was the spokesman - who quite definitely supported the ruling that only such matters should reach the Press as had been introduced into the record here in the public sessions, and that it was after that that the Tribunal passed its ruling. Previously it had been different.

I never considered that an insult, but rather merely the God- given dependence of human beings. For instance, it was impossible for me to get the Charter, the basis of our trial at the beginning of the trial, but eventually it was graciously placed at my disposal by the Press.

Thus whenever so complicated an apparatus is set in motion, there are naturally many errors and mistakes. But we have now already begun with Sir David to deal with questions of documents in the most practical manner possible. As long as we had only the German text, we conferred with the prosecution in order to find out what passages the prosecution believed they could object to. There were technical difficulties, linguistic difficulties, as long as we had only the German text and the prosecutors only spoke other languages. I spoke to the prosecution, and we realised the problem confronting the prosecutors. But that too one could solve with a good will; when necessary we used an interpreter. Thus it was an excellent and a practical system, first, for saving the translating department unnecessary work and secondly, for saving the Tribunal unnecessary decisions. And it was working beautifully. I want to claim for the defence - and I am sure that Sir David will not contradict me - that this was really our idea as well, that we co-operated in coming to an unofficial agreement beforehand by conferring with the prosecution.

The defence in this trial is in a very difficult position. I think every one of you will admit that human ability and an almost excessive degree of political tact is required in order to defend in this trial without ever making some small mistake. At any rate, 1, for myself, do not claim that I am absolutely sure of myself in this respect or that I won't perhaps commit some small faux pas. We find ourselves in a very difficult situation, difficult as far as the world is concerned, difficult as far as the Tribunal is concerned, and difficult as far as the German public is concerned.

May I urge Mr. Justice Jackson to appreciate our difficult task and not to raise such accusations as those which, unfortunately, we often have to read in the German Press. We can't always, when we are attacked in newspaper articles in which unjust accusations are raised against us, run to the Tribunal and say, "Please help us." The Tribunal has more important tasks than that of continuously protecting the defence.

However, as to the particular accusation that National Socialist propaganda is being made here or that anti-Semitic propaganda is being made here, about that I think I can say with a clear conscience that none of the defence counsel, no matter what his own philosophy or what his political views in the past may have been, has ever dreamt of trying to use this court-room to make ideological propaganda for the dead - I emphasise the word '"dead" - world of the Third Reich.

[Page 147]

That would not only be wrong, it would be worse than wrong; I might say, using Talleyrand's words, that it would be an unbearable stupidity to do a thing like that.

But, just because we are being attacked and because we cannot defend ourselves, and because we can't decently ask the Tribunal to protect us against every accusation, I am asking Mr. Justice Jackson to clear the atmosphere somewhat and to state to us that these serious accusations - contempt of court, anti-Semitic propaganda, or National Socialist propaganda, and so forth - weren't really meant to be raised seriously.

I think that the comradely co-operation which has existed between us and the prosecution so far, should continue; and I must openly confess that I look back to this co-operation with gratitude and wholeheartedly acknowledge the help and comradeship which these gentlemen have shown me.

Where would it lead us, if we were to oppose each other here like fighting cocks? We are all pursuing the same aim.

Not only do I ask him to do this, but knowing him as I do, I know that, even without my request, he will make a statement in order to clear the atmosphere in regard to this accusation, which is extremely painful, not only for the defence; but also for the entire Court.

May I thank you, your Honours, for being good enough to listen to me for so long; but I believe that the matter was sufficiently significant to call for further co-operation, without friction and in the interest of the cause, between the prosecution and the defence.

DR. THOMA: Your Honours, I ask to be permitted a few words in order to make a factual correction.

I should like to quote exactly in which passage it becomes apparent that Rosenberg is being held solely responsible for the mistaken ideology. It says in the presentation of the case for the American prosecution, on Page 2254 of the German transcript that Rosenberg reorganised the German educational system in order to expose the German people to the will of the conspirators and to prepare the German nation psychologically for a war of aggression. That is a quotation which is here at my disposal.

Secondly - one word more - I am forced to reply in person to the accusation raised by Mr. Justice Jackson. I must state something which I should normally not have said in this court-room, namely, that I have told Herr Rosenberg repeatedly, "Herr Rosenberg, I cannot defend your anti- Semitism; that you have to do yourself." For that reason I have limited my documents considerably, but have considered it my duty to place at Rosenberg's disposal every means necessary for him to defend himself on this point.

I should like to draw your attention once more to the fact that this passage which has been quoted by Mr. Justice Jackson was not marked in red in the document book and has been included by error.

MR. JUSTICE JACKSON: I certainly don't want to be unfair to our adversaries; I know they have a very difficult job. However, I hope the Tribunal has before it - and I shall withdraw all characterisations and let what I have to say stand on the facts - the order of 8th March, 1946, paragraph 3 thereof. I call the attention of the Tribunal to the fact that that reads: "The following documents are denied as irrelevant. - Rosenberg" - and then follows a list of documents - "Kunstwart; History of the Jews in Germany; History of the Jewish People." Those are the only three to which I shall take time to call your attention.

Two days after that order Rosenberg's counsel filed with this Tribunal, on 10th March, 1946, a rather lengthy memorandum in which he renewed his request for quotations from the books listed. On 23rd March, 1946, this Tribunal again denied that request as irrelevant.

I will now hand to you the stencils which we were ordered, by the order of 8th April, 1946, to print. They are a little difficult to read. The first is a quotation from the "History of the Jewish People," one of the prohibited books. The next

[Page 148]

is a quotation from "Kunstwart," -another of the prohibited documents. And the third is from the "History of the Jews in Germany," the third of the books that I have mentioned.

We have not had time to examine all of these stencils, but a hurried examination of them indicates that they are very largely, if not entirely, quotations from the prohibited documents. I will make no characterisation of it; I simply rest on those facts.

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