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 May to 6th June, 1946

One Hundred and Fortieth Day: Tuesday, 28th May, 1946
(Part 1 of 10)

[Page 49]

THE MARSHAL: May it please the Tribunal, the report is made that defendant Goering is absent.

THE PRESIDENT: We were going to deal with defendant Bormann's documents, were we not?

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

DR. SERVATIUS (Counsel for the defendant Sauckel): Mr. President, two witnesses only have arrived so far for the defendant Sauckel. Three essential witnesses are still missing. Perhaps the Tribunal can help to bring these witnesses quickly so that the case will not suffer. They are the witnesses Stothfang, Dr. Jager and Hildebrandt. I have repeatedly asked the prosecution to get them but they are not here yet. I have not yet spoken to the witnesses.

THE PRESIDENT: Have they been located?

DR. SERVATIUS: Yes. One is in a camp in Kassel, which is only a few hours from here, and the other is in Neumunster. That is a little farther, perhaps six or seven hours from here. Dr. Jager is free.

THE PRESIDENT: That is not in accordance with the information which the Tribunal has. The Tribunal has the information that they cannot be found.

DR. SERVATIUS: I received the information that their whereabouts has been ascertained.

THE PRESIDENT: From whom did you receive that information?

DR. SERVATIUS: Officially, from the General Secretary.

THE PRESIDENT: Well, we will make inquiries into it.

SIR .DAVID MAXWELL FYFE: My Lord, first, with regard to the witnesses applied for for the defendant Bormann. They are, as I understand it, Fraulein Kruger, to whom we have no objection. The witness Muller is no longer applied for?

DR. BERGOLD: Yes, I have dispensed with that witness.

SIR DAVID MAXWELL FYFE: Then, Klopper, and lastly, Friedrich. These are with regard to Bormann's law-making activities, and the prosecution have no objections.

DR. BERGOLD: Your Lordship, in place of the witness Muller, whom I have withdrawn, I have an additional request for the witness Gerta Christian on the same subject for which I had requested the witness Muller.

THE PRESIDENT: The first witness, Fraulein Kruger, is going to speak to exactly the same facts, is she not, to the death of Bormann?

DR. BERGOLD: Yes, your Lordship. The circumstances concerning Bormann's death are not very clear. It is very necessary to hear all the available witnesses on this subject because only in this way can one be convinced of the fact, which I am trying to establish, that the witness Bormann is already dead.

[Page 50]

THE PRESIDENT: It does not seem to be a very relevant fact. It is very remotely relevant whether he is dead or whether he is alive. The question is whether he is guilty or innocent.

DR. BERGOLD: Your Lordship, my point of view is that sentence cannot be passed upon a dead man. That is not provided for in the Charter. According to the Charter, the Tribunal can only condemn an absent person, but a dead person cannot be included under the term "absent." If the defendant is dead, the Charter does not provide the possibility of continuing proceedings against him.

THE PRESIDENT: Sir David, have you any objection to that other witness?

SIR DAVID MAXWELL FYFE: No, my Lord, the prosecution does not make any objections.


SIR DAVID MAXWELL FYFE: Now, my Lord, with regard to the documents, the first batch of documents are a series of treaties and diplomatic pronouncements and documents to counter the statement of Sir Hartley Shawcross as to the position of the international law before the Charter, the statement that the law of nations had constituted aggressive war an international crime before this Tribunal was established and this Charter became part of the lave of the world. The position of the prosecution is that evidence on that point is really irrelevant because after all, the Tribunal is covered by the Charter, and it seems unnecessary to translate and publish, by way of document books, all these matters which the learned Counsel has set out in his application. That is, shortly, the position of the prosecution with regard to that first batch of documents. Especially, I do not want to discuss the problem for the reason that I have given.

THE PRESIDENT: Yes. What are the numbers of them?

SIR DAVID MAXWELL FYFE: They are one to eleven - no, one to seven in the application.

THE PRESIDENT: Yes. Are they long documents.

DR. BERGOLD: Your Lordship, I have not seen them yet. I applied for these documents three months ago, in order to look them over, but unfortunately I have not received them yet and therefore I cannot give the Tribunal any information as to whether they are long or not and what parts of them I will need for my defence.

THE PRESIDENT: No. 2 looks like a long document.


DR. BERGOLD: But I will not use all these documents if I receive them. I shall probably take some of them, your Lordship, I shall only -

THE PRESIDENT: When you say you applied for them three months ago, you do not mean you applied to the Tribunal, do you?

DR. BERGOLD: I applied to the General Secretary, but perhaps it was put aside when your Lordship decided that my case should be postponed to the end. Perhaps it was forgotten.

THE PRESIDENT: Was there any order on your application?


THE PRESIDENT: You applied, I think, for an adjournment, did you not, in order that the matter might be brought up later?

DR. BERGOLD: Yes, your Lordship, I am in an especially difficult situation. I have questioned many witnesses and have tried very hard, but I can find nothing exonerating. All the witnesses are filled with great hatred towards the defendant Bormann, and they want to incriminate him in order to exonerate themselves. That makes my case especially difficult. The man himself is probably dead and

[Page 51]

can give me no information. Any day I might get new information. For example, a few days ago one of Bormann's co-workers, a Dr. von Hummeln, was arrested in Salzburg. I will go to see him and perhaps get new information - perhaps not. I must also assume -

THE PRESIDENT: We need not bother about that now. We are only inquiring about your application with reference to the documents.

Sir David, have you anything further you want to say about the documents?

SIR DAVID MAXWELL FYFE: No. I do not want to discuss the merits of my points because that is the issue that I am saying is irrelevant.

THE PRESIDENT: What about No. 11?

SIR DAVID MAXWELL FYFE: I am not disposed to object to any of the other documents, my Lord.

THE PRESIDENT: Are there any others besides -

SIR DAVID MAXWELL FYFE: No. 11; I can see a possible argument on that, my Lord, therefore I am not going to object to it. The other documents, certainly we have no objection to the ordinances of the Fuehrer's Deputy and -

THE PRESIDENT: All under "B"

SIR DAVID MAXWELL FYFE: Yes. The prosecution makes no objection to these.


Now, what do you say to Sir David's objection to these documents, one to seven?

DR. BERGOLD: Well, your Lordship, I have already made my point of view clear in my application. In order to save the time of the Tribunal, I will merely refer to this written application. I will not say any more at the moment on the subject, but if your Lordship wants me to explain it now I am ready to do so.

THE PRESIDENT: The Tribunal will consider the matter.

SIR DAVID MAXWELL FYFE: Did your Lordship wish to deal with the other outstanding applications or would your Lordship prefer to deal with that later on at the end of the case of von Schirach?

THE PRESIDENT: I do not think we have the papers here. We were only going to deal with Bormann this morning.

SIR DAVID MAXWELL FYFE: If your Lordship pleases.

(Mr. Dodd of the American Prosecution came to the lectern.)

THE PRESIDENT: Mr. Dodd, we have a document here, D-880, said to be extracts from testimony of Admiral Raeder, taken at Nuremberg on 10th November, 1945, by Major John Monigan. Have you offered that document in evidence or not?

MR. DODD: May I have just a minute to check it? I am not certain.

THE PRESIDENT: Yes, we will give you the document.

MR. DODD: I believe not, Mr. President, I do not believe it has been offered in evidence.

THE PRESIDENT: It seems to have been handed up yesterday or the day before -

MR. DODD: I think through a mistake.

THE PRESIDENT: - or last week. Yes. But you will find out about that and let us know.

MR. DODD: Very well, sir. Would you like to have this copy back?

(Paper handed up to the Bench.)

THE PRESIDENT: Dr. Sauter, you were still examining Gustav Hopken, were you not?

[Page 52]

DR. SAUTER: Mr. President, I shall continue my examination of the witness Hopken.

(GUSTAV HOPKEN, a witness, resumed the stand and testified as follows):



Herr Hopken, we stopped yesterday when discussing the question whether the defendant von Schirach during his time in Vienna was opposed to the church or was tolerant in this connection. The last answer you gave me yesterday referred to the relations of the defendant von Schirach to the Viennese Cardinal, Innitzer. Is it correct, witness, that at the suggestion and with the knowledge of the defendant von Schirach during his time in Vienna you periodically had talks with a Catholic priest there, a Dean, Professor Ens, for the purpose of discussing church questions with him and removing any differences which might arise?

A. Yes, that is true. The Dean, Professor Ens, was not, as you assume, Catholic, but Protestant. He was Dean of the Faculty of Theology of the University of Vienna. When he visited me, he submitted many church and religious questions to me. I, discussed them with him. He then asked me to report on them to Herr von Schirach so that, if it were in his power, he could make redress. This was done as far as possible.

Q. Do you know, witness, that the defendant von Schirach, for example, ordered that at the Party Christmas celebrations, new national-socialist Christmas songs were not to be sung, but the old Christian Christmas hymns?

A. Yes, I know that at the Christmas celebrations of the Party and of the Hitler Youth, and the Christmas celebration for wounded soldiers, the old Christian Christmas carols, such as "Es Ist Ein Ros Entsprungen," and "Silent Night, Holy Night" -

THE PRESIDENT: This is surely not a matter which is worthy to be given in evidence.

Q. Witness, do you know that the defendant von Schirach, in the official magazine of the Hitler Youth had a special number published, which was in favour of a humane treatment of the people of the Eastern territories, and when was that?

A. I know that it was the quarterly number, April-June of 1943.

Q. Do you know that in the same official magazine of the Hitler Youth, at the request of the defendant Bormann, a special anti-Semitic number was to appear, but that von Schirach refused it?

A. I know that it was requested at that time by the Propaganda Ministry and also by the Party Chancellery. Von Schirach refused each time.

Q. Witness, do you know that von Schirach once inspected a concentration camp?

A. Yes, I know that.

Q. Which one?

A. The concentration camp Mauthausen.

Q. In regard to this point, which has already been more or less cleared up by the testimony of other witnesses, I am interested only in one question. When was this visit to Mauthausen?

A. I cannot say exactly. I can say with certainty, however, that it was not after April, 1943.

Q. Why can you say that?

A. In April 1943 I was released from hospital, and began my service in Vienna. From that day on, until April, 1945, I knew every day where von Schirach was. Moreover, immediately after my arrival in Vienna, in April 1943, when I asked him, as I was rather run down physically because of my wound and I was also a sports teacher, whether I might take part in some sport between seven and eight in the morning

[Page 53]

THE PRESIDENT: Dr. Sauter, we do not want to know about the witness's health, do we?


Q. Witness, you heard what the President just said. I have already told you I am interested in when this visit to Mauthausen took place. You said if I understood you correctly -

THE PRESIDENT: He said he could not say when it was but it was not after April, 1943.

DR. SAUTER: Mr. President, I believe you misunderstood the witness. Witness, please pay attention, as to whether this is correct. I understood the witness to say that it was before April, 1943. The visit must have been before April, 1943. It could not have been later.

THE PRESIDENT: Dr. Sauter, he also said, according to the conversation I heard and took down that he could not say when the particular time was.

DR. SAUTER: Yes, but through the testimony of the witness I should like to settle the fact that it was not later than April, 1943.

THE PRESIDENT: He has said that already. He said it. He said, "I can't say when it was, but it was not after April, 1943." He said: "In April, 1943, I was released from hospital and began my service in Vienna. I knew every day where Schirach was." I have that all written down.

DR. SAUTER: Very well.


Q. Witness, in this conversation about his visit to Mauthausen did the defendant von Schirach tell you anything to the effect that on this visit he got to hear of any atrocities, ill-treatment, and such things?

A. No, he said nothing about that.

Q. Witness, I now turn to the question of the deportation of Jews from Vienna. As far as I know you were present during a conversation between the Reich Fuehrer SS Himmler and the defendant Schirach. Will you tell us what was said in this conversation on the question of deportation of Jews?

A. I believe it was in November 1941, Himmler and Schirach were driving through East Prussia from Himmler's quarters to his special train. In the car Himmler asked von Schirach: "Tell me, von Schirach, how many Jews are there still in Vienna?" Von Schirach answered, "I cannot say exactly. I estimate forty to fifty thousand." And Himmler said, "I must evacuate these Jews as quickly as possible from Vienna." And Schirach said, "The Jews do not give me any trouble, especially as they are now wearing the yellow star." And Himmler said, "The Fuehrer is already angry that Vienna in this connection, as in many others, is made an exception, and I will have to instruct my SS agencies to carry this out as speedily as possible." That is what I remember of this conversation.

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