Chapter XI: Front Matter (11)

DR. HORN: Mr. President, in my presentation of defense against the charges lodged by Sir David Maxwell-Fyfe in his special plea for the Prosecution, I have offered rebutting evidence in answer to these charges. I have, however, not only to confine myself to refuting those charges just mentioned, but I have—and thus I have to repeat what I just said—to consider all these charges under the point of view of conspiracy, as according to the submission of the Prosecution, the Defendant Ribbentrop is party to this conspiracy; and the question cannot be avoided: When did the conspiracy start? Taking the supposition that my client took part in a conspiracy, this participation did not start in 1930, as submitted by the Prosecution—I shall be able to refute this—but only in 1932; but I should like to prove through witnesses and otherwise that then and later he did not join in any conspiracy.

THE PRESIDENT: Well now, perhaps you will get on with the documents which you want.

SIR DAVID MAXWELL-FYFE: My Lord, with regard to the documents, I have had the opportunity of discussing it informally with Dr. Horn; and I understand that with regard to Documents 1 to 14, Dr. Horn really wants these books as working books which he can read and use and, if necessary, take extracts from to illustrate his argument and point at that time. Now, that is a matter of course to which we make no objection at all. I have consistently taken the view that there should be no objection to any book for working purposes for the Defense.

What I do want to ask is this, that if Dr. Horn or any other Defense Counsel wishes to use an extract from a book when it comes to presenting his case, he will let us know what the extract is and, if necessary, for what purpose he is going to use it. I say “if necessary” because in many cases it will be quite apparent for what purpose, but in some cases it may have special significance; and if they let us know, then any question of relevance can be argued when the matter is produced in court.

THE PRESIDENT: But that seems to me to be necessary in order that the documents should be translated.

SIR DAVID MAXWELL-FYFE: Quite; yes.

THE PRESIDENT: I mean that the part of the book or part of the document which Dr. Horn wants to use should be translated.

SIR DAVID MAXWELL-FYFE: But as far as providing the Defense with working copies, any co-operation that the Prosecution can do in that way they will gladly do. That is a matter on which we should be anxious to help.

The last five documents named fall into rather a different category. I haven’t discussed these with Dr. Horn; but I respectfully submit—and it is the united view of the Prosecution—that complete files of newspapers will be difficult to justify as evidence before the Tribunal, but again, if Dr. Horn wants them for matter of reference, then it just becomes a question of possibility.

I am not sure with regard to these whether it is desired to use them or whether it is merely desired to have them to refer to. I don’t know anything about Number 19, the withdrawn number of the _Daily Telegraph_, but I suppose the Secretariat can make inquiries about that from the proprietors.

DR. HORN: The last item I should like to take up: Now that the Trial has already progressed so far that I now require these documents in order to be able to make use of them for rebutting evidence, may I ask that copies of those newspapers—it is a matter of three or four newspapers, which are bound in 1-month volumes—be made available to me as soon as possible with the help of the Tribunal.

THE PRESIDENT: What do you say about the withdrawn number of the _Daily Telegraph_? You haven’t yet indicated why it would be relevant.

DR. HORN: On the 30 or 31 of August 1939, an edition of the _Daily Telegraph_ was withdrawn because it contained extensive details of the contents of the memorandum which the then Reich Foreign Minister, Von Ribbentrop, had read to the British Ambassador, Henderson, in Berlin. It is asserted—also by the Prosecution—that Ribbentrop read this note to Henderson so rapidly that the latter was unable to understand the essential points. From the issue of the _Daily Telegraph_ of 31 August 1939, it will thus appear to what extent Ambassador Henderson was in a position to understand Ribbentrop’s statements or the oral presentation of that memorandum as Von Ribbentrop read it. I therefore ask that this number of the _Daily Telegraph_ be procured, and I am convinced that the Prosecution is able to obtain this issue by the means at their disposal but not available to us.

SIR DAVID MAXWELL-FYFE: My Lord, this is the first time that I have heard of this withdrawn copy apart. . .

THE PRESIDENT: The first time you have heard there was any copy withdrawn?

SIR DAVID MAXWELL-FYFE: I have never heard it except from Dr. Horn that there was a copy withdrawn, and I shall probably have to investigate the matter.

I only want to say one thing, that of course Dr. Horn has just made one point about the question between this defendant and Sir Nevile Henderson. It is the case for the Defendant Göring, as expressed in Dr. Stahmer’s interrogatories, that the Defendant Göring had caused the contents of this memorandum to be given unofficially to Mr. Dahlerus behind the Defendant Ribbentrop’s back. That is the case which he is making in the interrogatories, so that it by no means follows that Sir Nevile Henderson’s account of the interview was wrong, even if an account of the document had come out.

I don’t want to make a point of the memory of Sir Nevile, but shall investigate this matter, which I have just heard now for the first time.

DR. HORN: May I add for the fuller information of the Tribunal that the Defendant Göring made the memorandum available to Ambassador Henderson only at a considerably later date. It is, therefore, of decisive importance when and whether Henderson acquired knowledge of this memorandum and whether it happened in good time so that he could still communicate it to the Polish Government within the proper time.

May I ask therefore for the procurement of this most important edition of the _Daily Telegraph_.

THE PRESIDENT: Thank you, Dr. Horn.

We will continue with the evidence against the Defendant Keitel.

DR. NELTE: Mr. President, may I be allowed to make a remark preliminary to the discussion about the evidence submitted for Defendant Keitel. I hope the discussions about the various applications for evidence will thereby be considerably shortened. From my written application you will see that in respect to the majority of the witnesses one main subject of evidence recurs again and again, namely, the position of Defendant Keitel as Chief of the OKW and in his other official functions, his personality, particularly, also his relations to Hitler, and the clarification of the chain of command within the Armed Forces.

I shall present evidence that the idea of the public and the Prosecution regarding the personality of the Defendant Keitel, his scope, and his activities is incorrect. No name has been so frequently mentioned in the course of this proceeding as that of the Defendant Keitel. Every document which dealt in any way with military matters was identified with the OKW, and the OKW, in turn with Keitel. The defendant believes, and I think with some justification. . .

THE PRESIDENT: The Tribunal appreciates the general points which you will probably want to argue on behalf of the Defendant Keitel when you come to make your final speech, but it does not appear to the Tribunal to be necessary that you should do so now.

DR. NELTE: I mention it only to make possible a comprehensive appraisal of all witnesses offered for the presentation of evidence. I think Sir David shares this opinion with me—he already discussed it with me on Saturday—and it was my intention to expound in a preliminary way the subject of evidence which otherwise had to be presented in five or six different cases.

THE PRESIDENT: Do you mean, Dr. Nelte, that you will be able to deal with all your witnesses in one series of observations?

Could you help us, Sir David?

SIR DAVID MAXWELL-FYFE: I think I can help.

Apart from the witnesses who are codefendants that are mentioned by Dr. Nelte, whom of course the Tribunal has already provided, Dr. Nelte asks for Field Marshal Von Blomberg, General Halder, General Warlimont, and the Chief Staff Judge of the OKW, Dr. Lehmann. The Prosecution have no objection to these witnesses, because they are called to deal with the position of the Defendant Keitel as head of the OKW.

With regard to the witness Erbe, who is, I think, a civil servant called on a specific point as to his position in the Committee for Reich Defense. . .

THE PRESIDENT: Have the interrogatories already been granted?

SIR DAVID MAXWELL-FYFE: Yes; we have always said that interrogatories would be sufficient and he should not be called as an oral witness.

Then with regard to the next witness, Roemer, whom Dr. Nelte wishes to call to say that the decree for the branding of Soviet Russian prisoners of war was announced by mistake and retracted at once on the order of Keitel, that is obviously relevant to one matter in the case, and we don’t object to that.

We don’t object to General Reinecke, who is called on various matters relating to prisoners of war.

With regard to Mr. Romilly, so long as it is confined to interrogatories which have been allowed, and he is not called orally, we have no objection.

My friend, M. Champetier de Ribes, will have a word to say about Ambassador Scapini. I have asked him to deal with that matter in French.

Then we come to two witnesses, Dr. Junod and Mr. Petersen. At the moment the Prosecution cannot see how these witnesses are needed in addition to General Reinecke. And of course they would object if the purpose of the testimony is to show that the Soviet Union did not treat its prisoners of war properly. If that is the purpose, they would object.

Then the calling of Dr. Lammers has been granted by the Tribunal.

Then finally, there are three witnesses who are all called in order to show that at discussions between Hitler and the Defendant Keitel, two stenographers had to be present. The Prosecution do not regard that as a very vital part of the case, and if Dr. Nelte will produce an affidavit from one of these gentlemen, then the Prosecution are not in a position—and do not desire—to dispute the point. Frankly, if I may say so, and with the greatest respect, we are not at all interested in that point, and therefore will be content with an affidavit if produced.

If I might summarize—and I hope I am merely trying to help Dr. Nelte—the only matters which, as far as the Prosecution are concerned, require further discussion is the matter of what the French Delegation will have to say about Ambassador Scapini, and my objection to Dr. Junod and Mr. Petersen, and my suggestion as to an affidavit for the last three witnesses. There is very little between us, if I may say so, with respect to Dr. Nelte’s witnesses; on the whole they seem to the Prosecution to be obviously relevant and in that case we make no objection.

There is one rather sad fact with regard to the witness Blomberg, of which I think Dr. Nelte has been informed. I understand that Field Marshal Von Blomberg is very ill at the moment and cannot be brought into court, so that I am sure, Dr. Nelte, the Defendant Keitel will be the first to accept some method of getting his evidence which will not necessitate that fact.

DR. NELTE: I thank Sir David for his kindness, by which my task has been made easier.

I should like to state in addition that in respect to the witness, Dr. Erbe, I shall put written questions. To the witness Petersen I have already submitted written questions, and on the answers received depends whether I shall call him in person. As to witness Junod, I believe I may say that his examination is relevant because the Soviet Prosecution has submitted that an offer to apply the Geneva Convention had been rejected by Keitel. Dr. Junod is to be examined as a witness that, by order of the OKW Department of Prisoners of War, he contacted the Soviet Union in order to secure the application of the Geneva Convention but that this could not be brought about. I believe that if only General Reinecke is to be examined as a witness on this question, it could perhaps be objected that he, as chief of the Department of Prisoners of War, cannot give sufficient testimony. Neither can General Reinecke testify to what Dr. Junod actually did. Consequently I ask that this witness be approved. As far as the stenographers are concerned, I ask approval to submit an affidavit.

As to Ambassador Scapini, I should merely like to point out that he was the permanent representative of the French Vichy Government and that he was particularly concerned with the question of caring for prisoners of war in Germany. I believe that this is adequate reason for considering him relevant. To be sure, I did not know his address, and hope that the French Prosecution can help me in that regard.

M. AUGUSTE CHAMPETIER DE RIBES (Chief Prosecutor for the French Republic): We see no objection to hearing the former Ambassador Scapini, if his testimony can in our opinion have the slightest bearing on the search for truth; but the very reasons which Dr. Nelte gives for the calling of this witness seem to me to prove the complete absence of relevance of this testimony. The former Ambassador Scapini, says the honorable representative of the Defense, could point out and say that he freely exercised his control in the prisoner-of-war camps and moreover that these prisoners of war had a representative, but this we are quite willing to grant to the Defense. It is perfectly true that Germany had consented to allow the former Ambassador Scapini—who we know was wounded in the war of 1914 and blinded—to visit the camps of prisoners and hear the French prisoners of war though he could not see them.

But the question is not to find out whether the Germans had been willing to allow a blind inspector to visit the camps. The only question presented by the Indictment is whether, in spite of the visits of this inspector and in spite of the presence of a special representative in the camps, there did not occur in these camps acts contrary to the laws of war.

On this point the former Ambassador Scapini could surely give no answer, for obviously nothing happened in his presence. This is why the French Prosecution considers that the testimony of the former Ambassador Scapini would shed no light in this search for truth.

DR. NELTE: It was not known to me that Ambassador Scapini was blind. Not he himself, but rather the delegation of which he was head, made regular inspections of the prisoner-of-war camps for French soldiers. It is certain that in prisoner-of-war camps things happened which violated the Geneva Convention, but the question at issue here is that the Defendant Keitel and the OKW, as the supreme authority, did—or at any rate, tried to do—all that they, as highest authority, had to do.

The OKW had no command jurisdiction in the individual camps. It had only to issue instructions as to how prisoners of war were to be treated and had to permit the protecting powers to visit the camps.

THE PRESIDENT: Would interrogatories be satisfactory, supposing we thought it proper to administer them to Mr. Scapini?

DR. NELTE: An interrogation in Nuremberg? Could Ambassador Scapini be heard in Nuremberg?

THE PRESIDENT: I was asking whether interrogatories would be satisfactory. I imagine Mr. Scapini is not in Nuremberg. Written interrogatories, I mean, of course, where I have mentioned them.

DR. NELTE: I ask for a ruling on whether the written questions which I first should like to put will be sufficient or whether another ruling will be necessary. So I assume that first I shall interrogate Ambassador Scapini in writing and on his answer it will depend whether. . .

THE PRESIDENT: Yes, in writing. Will that be satisfactory to you, M. Champetier de Ribes?

M. CHAMPETIER DE RIBES: Yes, that will be quite satisfactory.

THE PRESIDENT: I think perhaps we might adjourn now, Dr. Nelte, until a quarter past 2.

[_The Tribunal recessed until 1415 hours._]

_Afternoon Session_

THE PRESIDENT: I think, Dr. Nelte, you had really finished with your witnesses, had you not?

DR. NELTE: Yes, I think so. I must only reserve the right on what I may have to state, after the Soviet Prosecution have finished presenting their case—whether I still may wish to call this or that witness. As to the documents I should like to put a few questions which are of particular interest for me—rather for the Defendant Keitel.

THE PRESIDENT: Certainly.

DR. NELTE: The Tribunal knows my main subject of evidence. In order to prove that in many cases the Prosecution is wrong in assuming the OKW and the Defendant Keitel to be responsible, I can refer to a great many documents which have been presented by the Prosecution.

I take it that these documents are not to be submitted by me as evidential material, as they have already been put in. I ask the Tribunal for examination of these documents and for a ruling that in my pleadings on behalf of the defendant I may refer to such documents without having to submit or quote them.

I should like to add that the Tribunal, having been informed about the structure of the Armed Forces or parts of them and about the competencies of the various commands, will itself be able to judge which of the documents submitted are not suitable for supporting the allegations of the Prosecution regarding the responsibility of the Defendant Keitel.

I am also convinced that the Tribunal, in its findings, will examine carefully any document relevant to the question of guilt, even if the Defense does not submit such documents, and even if the Defense cannot submit a comprehensive presentation in view of the extremely large number of documents—there are thousands relating to the Defendant Keitel—and even if the Defense cannot deal with all these documents in the final speeches.

Furthermore, I should like to submit to the Tribunal another question which is important for the presentation of evidence on behalf of the Defendant Keitel and which is of great importance.

During the session of 1 February 1946, the French Prosecutor made the following statement, and I quote:

“Chapter 4 and the last will bear the heading, ‘The
Administrative Organization of Criminal Action’. . . . for the
fourth chapter I might point out that the French Delegation
examined more than 2,000 documents, counting only the original
German documents of which I have kept only about 50.”

According to the opening address of the United States Chief Prosecutor, there can be no doubt that these 50 documents were selected merely from the point of view of incriminating the defendant. On 11 February, if I remember correctly, I addressed myself to the French Prosecution with a request to place at my disposal for examination the remaining 1,950 documents, which the French Prosecution did not use.

To date I have received no answer. The Tribunal will appreciate the difficulties of my position. I know there are documents there which I am sure contain also exonerating facts. Yet I am not able to specify these documents. I beg the Tribunal, therefore, for a ruling in this matter—that the Prosecution should place at my disposal those documents for my perusal.

THE PRESIDENT: With reference to these particular documents that you are asking for, are you going to say anything about them?

DR. NELTE: I do not know the contents of these documents. I know only that the French Prosecution have these 2,000 documents. . .

THE PRESIDENT: Well, if you wish to deal with that now, I will ask the French Prosecutor to answer what you have said.

DR. NELTE: If Your Honor pleases, I leave it to the Tribunal whether they wish to examine this question or whether it can be dealt with now.

THE PRESIDENT: Well, I think we had better hear from the French Prosecutor now.

M. CHARLES DUBOST (Deputy Chief Prosecutor for the French Republic): A certain number of documents of doubtful origin were in our hands at the time that we were beginning to prepare our prosecution. We have eliminated all documents which could not bear serious critical examination. We undertook a critical task and rejected all those that were considered to be insufficient proof. At the end of this task about fifty documents remained which have been referred to by my colleagues and which appeared relevant. These 50 documents have, moreover, not all been accepted by the Tribunal, which has rejected some, and if I remember rightly, 3 or 4 of whose origin we were not quite sure. In these conditions, it is absolutely incorrect to say that we have kept 1,950 documents from the Defense.

We handed over to the Court, and therefore to the Defense, the 50 documents which in themselves seemed to us to have sufficient probative value.

If I understand this request of the Defense they wish the Court to ask to have handed to them documents of which some have been rejected by the Court itself as not having sufficient probative value or as not being sufficiently authenticated. The Tribunal will decide whether this request should be granted. As far as I am concerned, I must oppose this application with all my might because it would mean taking into account documents which did not offer a sufficiently authentic character for the examination we made, and which the Tribunal itself also made when we submitted to it some of these documents.

THE PRESIDENT: Yes, but M. Dubost, the position is this: There were a large number of documents which the Counsel for the French Prosecution said that they had examined; and the French Prosecution, in the exercise of their discretion, thought it unnecessary to refer to more than a certain number of them; but it is only the French Prosecution which has exercised their discretion about those documents, and what Dr. Nelte is asking is to see them for the purpose of seeing whether there is anything in the documents which assists his case. Would the French Prosecution have any objection to that? I mean—it may be that some of the documents are no longer in the possession of the French Prosecution, but those that are in their possession, would the French Prosecution object to Dr. Nelte’s seeing those?

M. DUBOST: May I remind the Tribunal that the documents which we rejected were not rejected as useless in the beginning, but as not presenting sufficient guarantee as to their origin, as to the conditions under which we obtained them and as to their probative value.

The Tribunal will no doubt remember that a certain number of these documents were rejected by the Court itself. Those which we did not consider are of the same character as those documents which were rejected. We did not submit them because we could not tell you where, when, and how they had been discovered. For the most part, they are documents that fell into the hands of combat troops in battle, and under the terms of jurisprudence do not offer sufficient guarantee to be retained.

Insofar as they are still in my possession I am ready to communicate them to Defense Counsel, it being clearly understood that they will not attach to them any higher merit, any higher value than I did.

THE PRESIDENT: That may very well be. I think that all Dr. Nelte wants is to see any documents which you have brought to see whether he can find anything in them that he thinks may help the case of the defendant for whom he appears, and I understand you would not have any objection to his doing that.

M. DUBOST: I would only answer the Defense Counsel that some of those documents were rejected by your Tribunal when I presented them.

THE PRESIDENT: Well, of course, it would not apply to documents which have been rejected by the Court. Very well. We will not decide the matter now. We will consider it.

DR. NELTE: Would the Tribunal announce its decision regarding the first question which I brought up, namely, whether it is sufficient that I refer to documents which have been presented by the Prosecution without submitting them myself.

THE PRESIDENT: Yes, Sir David?

SIR DAVID MAXWELL-FYFE: On that point I would like to support Dr. Nelte’s suggestion. If a document has already been put in, I should have thought it was right and convenient that Counsel for the Defense could comment on it without putting it in again, and should have full right of comment.

THE PRESIDENT: I think that I have said on a variety of occasions that any document which has been put in evidence, or a part of which has been put in evidence, can, of course, be used by the Defense in order to explain or criticize the part that has been put in. It may be that as a matter of informing the Tribunal as to the document, it may be necessary to have part of the document, which has not been put in evidence, put in now in order that it may be translated.

SIR DAVID MAXWELL-FYFE: I do not know whether it would be convenient if I indicated to Dr. Nelte the views of the Prosecution on his list of documents, or whether he would like to develop it himself. I can quite shortly do that if it would be convenient.

THE PRESIDENT: I think it would shorten things if you would.

SIR DAVID MAXWELL-FYFE: A considerable number of the documents in the list fall into that category which has just been mentioned. Documents 3 to 9, 17 and 29, 30 and 31 all appear to be in, and therefore Dr. Nelte may comment in accordance with your ruling.

Then there are a number of documents which are affidavits, either of defendants or intended witnesses: Documents 12, 13, 22, 23, 24, 25, and 28.

The Tribunal may remember that in the case of the witness, Dr. Blaha, my friend, Mr. Dodd, adopted the practice of asking the witness, “Is your affidavit true?” and then reading the affidavit to save time. The Prosecution have no objection to Dr. Nelte’s pursuing that course, should he so desire; but, of course, where a witness is going to be called as a witness, he will have to verify his affidavit on oath, in the submission of the Prosecution.

THE PRESIDENT: One moment. You mean that, if the witness is here, you have no objection to Dr. Nelte’s reading the affidavit and the witness being then liable to cross-examination?

SIR DAVID MAXWELL-FYFE: The witness will say, “I agree; I verify the facts that are in my affidavit.”

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: It might save considerable time in the examination-in-chief, and we should all be prepared to co-operate in that.

THE PRESIDENT: Then, is Dr. Nelte agreeable to that course? Is that what he means?

DR. NELTE: Entirely.

THE PRESIDENT: Possibly, Sir David, if the affidavit were presented to the Prosecution, they might be able to say that they did not wish to cross-examine. That would save the witnesses being here or being brought here.

SIR DAVID MAXWELL-FYFE: It might be in the case of Dr. Lehmann. I think all the other cases are either defendants or witnesses with regard to whom there are certain points which the Prosecution would like to ask.

Then there are three documents to which there are no objections to their being used: 18, 26, and 27.

That leaves a number of documents as to whose use I am not quite sure at the moment, but it may be that Dr. Nelte will explain how he wishes to use them, and that may remove the difficulty of the Prosecution. If the Tribunal will be good enough to look at 1 and 2, 1 is an expert’s opinion on state laws concerning the Führer state, and the importance of the Führer order, and Document 2 is an order of the Führer, Number 1.

If it is desired to use these so as to controvert Article 8 of the Charter, the Prosecution will object. That is a question of superior orders.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: If they are only used to explain the backgrounds as a matter of history, that may be a different matter. Now, the next one is Document 10—a need for a ministry of rearmament, taken from. . .

THE PRESIDENT: Even so, Sir David, in your submission, ought we to accept the opinion of an expert on such a point?

SIR DAVID MAXWELL-FYFE: No, Your Honor. We do not at all. I am afraid that my second remark really applied to the order of the Führer. That might be used as a background or it might be used for purposes of mitigation or explanation of how a thing took place, but I respectfully agree that the expert’s opinion on state laws cannot be used with regard to the jurisdiction of the Tribunal. Of course, the law of any other state may be a question of fact as far as the Tribunal is concerned just as it would be a question of fact in an English court: “What is the law of another state?” As I say, I want to reserve emphatically the position of Article 8 with regard to these two documents.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: Now, Documents 10 and 11 deal with rearmament in other countries. I do not want to prevent the Defense using illustrations, but again I reserve the position most emphatically that rearmament in other countries cannot be an excuse for aggressive war and would be irrelevant on that point.

Now, 15 and 16 refer to books by Major General Fuller and Major General Temperley, who are both ex-officers, who were journalists during this period. As far as any question of fact that is stated in these books, if Dr. Nelte will let us know what the passage is, we shall see whether we could admit it, but the general views of Major General Fuller and Major General Temperley we would submit to be irrelevant.

Then, 19, 20, and 21 are books about Austria. Again the Prosecution reserves the position that the earlier state of opinion in Austria with regard to an Anschluss is irrelevant when considering the question of the aggressive action in breach of the Treaty of 1936 which took place in 1938.

I think, My Lord, that I have now dealt with all the documents and, as I say, they fall into these four groups; with regard to three of which there is nothing really between us in principle, and with regard to the fourth, the Prosecution wants to reserve these various points which I have mentioned. Again I want to make clear that the Prosecution does not object to Dr. Nelte’s obtaining any of these books for the purpose of preparing his case, but we want them to make clear at the earliest opportunity what their position is with regard to their use.

DR. NELTE: With respect to the first three categories, the Prosecution agrees with me that I can confine myself to the last category which begins with Documents 1 and 2. One of the fundamental questions of this Trial, which at first glance appears a purely legal problem, is the question of the so-called Führer state (Führerstaat) and Führer order (Führerbefehl). This question has, however, important actual significance here at this Trial, also of a factual importance. For instance, the Defendant Keitel, as a result of his particular position, was to the utmost degree affected by this Führer state principle and acted accordingly as he was continuously in personal contact with the incarnation of this principle, namely, Hitler. It is not as if Article 8 of the Charter remained unaffected by it. It will, however, so I assume, be possible to prove that Article 8 of the Charter is not applicable here.

As to the Führer Order Number 1, Document Number 2, the Tribunal itself will, upon hearing the order, be able to judge whether it bears any relevance. This order, Führer Order Number 1, from Keitel Document Book Number 1, reads:

“a) No one is to have any knowledge of secret matters which do
not fall within his sphere.

“b) No one is to obtain more information than he needs for the
fulfillment of the task set him.

“c) No one is to receive information earlier than is necessary
for the duties assigned to him.

“d) No one is to pass on to subordinates more secret orders or
at an earlier date than is indispensable for the attainment of
the purpose.”

Document Number 1, that is, the expert opinion on the Führer state and Führer order, in connection with this Führer Order Number 1, is to serve as proof for the fact that there can be no question of conspiracy in the sense of the Indictment. Therefore, I request the Tribunal to admit those two documents as relevant. Documents Number 10 and Number 11, and also to a certain degree, Number 16, are submitted as proof that the principles which the Defendant Keitel, as a soldier and a German, considered to be important, namely, rearmament up to a point of securing a respectable position for Germany among the council of nations, were not only postulated by the German people, but also appreciated and approved by important persons abroad. This subject is to be proved by submission of articles by a British, a French, and an American author, military men, all of whom hold a high reputation for their writings on military matters. Among these is the article “Total War,” by Major General Fuller, my Document 15, as well as the book by the British Major General Temperley, _The Whispering Gallery of Europe_. Mr. Fuller, for instance, writes in his article, that:

“It is nonsense to state that he”—Hitler—“wanted war. War
could not bring him the rebirth of his nation. What he needed
was an honorable, secure peace.”

The point to be proved here is that any aggressive intentions would of themselves be incompatible with the pronouncements of Hitler and the leading Nazis, if one believes in their sincerity. The defendant believed in the sincerity of these pronouncements and to this end he referred to the opinion of important persons abroad.

I think those are the documents to which the Prosecution raised certain objections.

THE PRESIDENT: You have not mentioned 19 to 21, which documents are said to reveal a certain state of opinion in Austria.

DR. NELTE: Yes. Those documents—Number 19, “The Cultural and Political Importance of the Anschluss,” and Document 20, “The Way Toward the Anschluss,” and the third, “The Anschluss in the International Press,” dated 1931—are to prove the defendant could assume, and was justified in so doing, that the overwhelming majority of Austrian people welcomed the Anschluss with Germany. These are articles and memoranda of the Austro-German Peoples Union, the chairman of which was the Social Democrat Reichstag President Loebe.

THE PRESIDENT: That concludes the documents, does it not?

DR. NELTE: I should like to make only one additional application to the Tribunal, which refers to documents which I have been unable to mention earlier since they were not submitted until the sitting of 22 February. I shall now submit this application. It refers to 11 documents, all of which were presented during the Friday sitting in order to prove the complicity of Keitel in the destruction during the retreat and in regard to forced labor of prisoners of war and civilian population. From the contents of these documents submitted by the Prosecution, it becomes apparent that, according to evidence I have already offered, a large number of the accusations of the Prosecution are to be attributed to the fact that every document which dealt in any way with military matters was simply charged to the OKW and Keitel.

THE PRESIDENT: Dr. Nelte, as I understand it, all these documents have already been put in evidence.

DR. NELTE: Yes.

THE PRESIDENT: Well, then they fall into the category to which Sir David agreed. They could be touched on by you.

DR. NELTE: That is correct.

THE PRESIDENT: There is no need to make any fresh application in connection with them.

DR. NELTE: When I made this additional application I had not yet received Sir David’s consent. Besides this seems to be a particularly singular and convincing case because, on one day, 11 documents were submitted, all of which were used as accusations against Keitel, but which all showed by their contents that they do not apply to him or the OKW.

THE PRESIDENT: One moment. There is only one other thing that I wanted to ask you. You asked at an earlier stage for the evidence from Ambassador Messersmith and Otto Wettberg and in both, cases the Tribunal granted you interrogatories. I do not know whether you are withdrawing your application in respect to those cases or whether you have seen the answers to the interrogatories.

DR. NELTE: I have, in accordance with the suggestion, sent those interrogatories to Ambassador Messersmith as well as to Otto Wettberg. Depending on the reply I shall receive from those two witnesses, I shall or shall not submit them.

THE PRESIDENT: You have submitted the one for Otto Wettberg, have you?

DR. NELTE: Yes, but I have not received it back.

THE PRESIDENT: Very well. The Exhibit Number 1, would you explain a little bit more what Number 1 is going to be? It appears to be the opinion of an expert witness on the meaning of the Führer precept. Is that what you intend?

DR. NELTE: Yes. It is an article in the field of constitutional law on the structure and significance of what is known as the Leader State (Führerstaat).

THE PRESIDENT: Very well. Yes, Colonel Smirnov.

CHIEF COUNSELLOR OF JUSTICE L. N. SMIRNOV (Assistant Prosecutor for the U.S.S.R.): May it please Your Honors, it is my duty to submit to the Tribunal evidence on the last count of the Indictment. “Crimes against Humanity” are dealt with in Count Four of the Indictment, and by Article 6, and particularly Subparagraph C of Article 6, of the Charter.

I shall submit evidence of crimes which the Hitlerites committed on the territories of the temporarily occupied areas of the Soviet Union, Poland, Yugoslavia, Czechoslovakia, and Greece.

The Crimes against Humanity—just as the other crimes of the German fascists for which evidence has been submitted to the Tribunal by my colleagues—originated in the criminal nature of fascism, in its endeavors to dominate the world by predatory seizure of whole states in the East and in the West, and by enslavement and mass extermination of people. These crimes were put into effect by adoption of the cannibalistic theories of German fascism.

Elements forming the concept of Crimes against Humanity are to be found in nearly all the criminal acts of the Hitlerites. For instance, a considerable amount of probative facts in corroboration of the gravity of the crimes committed by the German fascists has already been submitted to the Tribunal during the presentation of the Count concerning War Crimes against the civilian population.

The criminal violation by the Hitlerites of the laws and customs of war, as well as the mass extermination of prisoners of war, are some of the gravest Crimes against Humanity. At the same time, the concept Crimes against Humanity is considerably broader in scope than any definition of German fascist crimes, of which proofs have been hitherto submitted to the Tribunal.

Together with the arrival of German forces and the appearance of the swastika on official buildings, life of the inhabitants of the temporarily occupied eastern European countries seemed to stop. The merciless fascist machine tried to force them to be deprived of all that which, as a result of centuries of human development, had become an integral part of humanity.

Thus, death hung over them constantly, but on their way to death they were forced to pass through numerous and agonizing phases, insulting to human dignity, which constitute, in their entirety, the charge entitled in the Indictment “Crimes against Humanity.”

Attempts were made to force them to forget their own names by hanging a number around their necks or by sewing a classification mark on their sleeves. They were deprived of the right to speak or to read in their mother tongue. They were deprived of their homes, their families, their native country, forcibly deported hundreds and thousands of kilometers away. They were deprived of the right to procreate. They were daily scoffed at and insulted. Their feelings and beliefs were jeered at and ridiculed. And, finally, they were deprived of their last right—to live.

The numerous investigations noted not only the state of extreme physical exhaustion of the victims of German fascist atrocities; they also usually mentioned the state of deep moral depression of those who, by the hazards of fate, escaped the fascist hell.

A long period of time was necessary for these victims of German fascism to return once again to a world of normal conceptions and activities and to man’s conventions for human society. All this is very hard to express in legal formula, but, in my opinion, it is very important in the Indictment of the major war criminals.

I ask the Tribunal to refer to the report of the Polish Government which has already been submitted to the Tribunal as Exhibit Number USSR-93 (Document Number USSR-93). The quotation which I should like now to read is on Page 10 of the document book. On Page 70 of the Russian text of this report, there is a quotation from the statement of Jacob Vernik, a carpenter from Warsaw, who spent a year in the extermination camp of Treblinka 2. Sometimes the official German documents refer to “Treblinka 2” as “Treblinka B,” but it is one and the same. This was one of the most terrible centers for mass extermination of people, created by German fascists. In my statement, I shall submit to Your Honors evidence connected with the existence of this camp.

This is what Vernik said in presenting a report on Treblinka to the Polish Government; a report which, as he stressed in his foreword, was his only reason “to continue his pitiful life”:

“Awake or asleep I see terrible visions of thousands of people
calling for help, begging for life and mercy.

“I have lost my family, I have myself led them to death; I have
myself built the death chambers in which they were murdered.

“I am afraid of everything, I fear that everything I have seen
is written on my face. An old and broken life is a heavy burden,
but I must carry on and live to tell the world what German
crimes and barbarism I saw.”

The persons who came to Treblinka entered, as I said, the ante-chamber of death. But were they the only victims of this fate? An analysis of probative facts connected with the crimes of the German fascists irrefutably testifies to the fact that the same fate was shared not only by those who were sent to special extermination camps, but also all those who became the victims of these criminals in the temporarily occupied countries of Eastern Europe.

I ask the Tribunal’s permission to bring in evidence a short quotation from a document already submitted to the Tribunal as Document Number USSR-46—the report of the Extraordinary State Commission of the Soviet Union on the crimes committed in the city and region of Orel. In the text of this document there is a special communication of a famed Russian scientist, a doctor, the President of the Academy of Medical Science and member of the Extraordinary State Commission of the Soviet Union, Academician Burdenko. The Tribunal will find this communication on Page 14 of the document book, Paragraph 6:

“The scenes I had to witness”—says Burdenko—“surpassed the
wildest imagination. Our joy at the sight of the delivered
people was dimmed by the expression of stupor on their faces.

“This led one to reflect—what was the matter? Evidently the
sufferings they had undergone had stamped upon them equality of
life and death. I observed these people during 3 days. I
bandaged them, I evacuated them, but their physical stupor did
not change. Something similar could be noticed during the first
days on the faces of the doctors.”

I shall not, Your Honors, waste time in drawing attention to the long and well-known extracts from _Mein Kampf_ or the _Myth of the Twentieth Century_. We are interested, in the first place, in the criminal practices of the German fascist fiends.

I have already said above, that death constantly hung over the people who became the victims of fascism. Death could come unexpectedly, together with the appearance in one or another place of a Sonderkommando; but at the same time, a death sentence would be pronounced for any act in these special decisions so mockingly called German fascist “laws.”

I and other members of the Soviet Prosecution already have given numerous examples of these terroristic laws, directives, and decrees of the German fascist authorities. I do not wish to repeat myself, but I beg the Tribunal’s permission to quote one of these documents as it concerns all the temporarily seized eastern territories.

The only justification for the publication of this document for its author, the Defendant Alfred Rosenberg, is that these temporarily occupied districts were populated by non-Germans. This document is a characteristic evidence of the persecution of people for racial, national, or political motives. I beg the Tribunal to enter in the record, as Exhibit Number USSR-395 (Document Number USSR-395), the photostat of the so-called third decree supplementing the penal directives for the Eastern territories which was issued by Alfred Rosenberg on 17 February 1942. Your Honors will find this document on Pages 19 and 20 of the document book. I shall read in full, beginning with Paragraph 1:

“The death penalty, or, in lesser cases, penal servitude will be
inflicted upon: Those who undertake to use violence against the
German Reich or against the high authority established in the
occupied territories; those who undertake to commit violence
against a Reich citizen or a person of German nationality for
his or her belonging to this German nationality; those who
undertake to use violence against a member of the Wehrmacht or
its followers, the German police including its auxiliary forces,
the Reich Labor Service, a German authority or institution, or
the organizations of the NSDAP; those who appeal or incite to
disobedience of orders or directives issued by the German
authorities; those who with premeditation damage the furniture
of German authorities and institutions or things used by the
latter for their work or in the public interest; those who
undertake to assist anti-German movements or to maintain the
organizational connection of groups prohibited by the German
authorities; those who participate in or incite hostile activity
and thus reveal anti-German mentality or who by their behavior
lower or injure the authority or the welfare of the German State
and people; those who premeditatively commit arson and thereby
damage German interests in general or the property . . .”

THE PRESIDENT: Have you read this before?

MR. COUNSELLOR SMIRNOV: I checked the transcript, and I do not think that this has been read into the record.

THE PRESIDENT: Very well.

MR. COUNSELLOR SMIRNOV: It may be that similar orders were read; maybe those of Frank or some other orders. They are all alike. In any case I could not find any mention of this document in the transcript.

I continue:

“. . . damage German interests in general or the property of a
Reich citizen or persons of German nationality.”

Paragraph 2 is very characteristic:

“Furthermore, the death penalty and, in lesser cases, penal
servitude is to be inflicted upon: Those who agree to commit any
punishable action as foreseen by Paragraph 1; those who enter
into serious negotiations on that subject; those who offer their
services to commit such an action or accept such an offer; or
those who possess credible information on such an action or its
intention at a moment when the danger can still be averted, and
willfully refrain from warning the German authorities or the
menaced person in due time.

“Paragraph 3. An offense not coming under Paragraphs 1 and 2 is
to be punished by death, even if this penalty is not provided
for by the general German criminal laws and by decrees of German
authorities, if the offense is of a particularly base type or
for other reasons is particularly serious. In such cases the
death penalty is also permissible for juvenile hard criminals.

“Paragraph 4. (1) If there is insufficient justification for
turning the case over to competent courts-martial, the special
courts are competent. (2) The special instructions issued for
the Armed Forces are not hereby affected.”

I skip Paragraph 5.

This decree of Rosenberg’s was only one link in the chain of crimes committed by the leaders of the German fascism directed toward exterminating the Slav peoples.

I pass on to the first part of my statement, which is entitled, “Extermination of Slav Peoples.” In this part I shall show how this criminal purpose of the Hitlerites to exterminate the Slav peoples was carried out. I shall quote data from the report of the Yugoslav Government, which is to be found on Page 56 of the Russian text or on Page 76, Paragraph 3, document book:

“Apart from the thousands of Yugoslavs who died in battle, the
occupants exterminated at least one and a half to two million
people, mostly women, children, and aged persons. Of the 15
million prewar Yugoslav population, in the relatively short
period of 4 years, almost 14 percent of the entire population
was exterminated.”

In the report of the Czechoslovak Government, on Pages 36 and 37 of the Russian text, there is proof of a plan conceived by the Hitlerite criminals for the forceful expulsion of all Czechs and the settling of German colonists in Czechoslovakia. The report quotes an excerpt from a statement of Karl Hermann Frank, who admitted the existence of this plan and declared that he, Frank, had compiled a memorandum in which he objected to a similar plan. I quote the excerpt from the statement of Karl Hermann Frank, which the Tribunal can find on Page 37 in the document book, fourth paragraph.

“I considered this plan senseless as, in my opinion, the vacuum
created by these measures would have seriously upset the vital
functioning of Bohemia and Moravia for various reasons of
geopolitical, traffic, industrial, and other character; and the
immediate filling of this vacuum with new German settlers was
impossible.”

In Poland a regime of extermination of the Slav population was put into effect by diverse criminal methods, among which driving people to an extreme state of exhaustion by excessive labor and subsequent death from hunger, was most prevalent. The criminals quite consciously embarked upon the extermination of millions of people by hunger, which is attested by a number of documents already quoted by me and my colleagues in part, namely, the diary of Hans Frank.

I shall quote a few short extracts from this document. Here is an excerpt concerning the minutes of a conference held by the Governor General on 7 December 1942 in Kraków. The Tribunal will find the passage I wish to quote on Page 89 of the document book, in the first column of the text, last paragraph:

“Should the new food supply plan be put into effect, it means
that for the city of Warsaw and its surroundings alone 500,000
people will no longer receive food relief.”

And here is another short excerpt from the minutes of a governmental conference held on 24 August 1942. The Tribunal will find it on Page 90 of the document book, first paragraph of the text. Dr. Frank states:

“With all the difficulties which arise from the illness of
workers, or the breaking down of your co-operatives, you must
always bear in mind that it is much better if a Pole collapses
than if the Germans are defeated. The fact that we shall be
condemning 1,200,000 Jews to death by starvation should be
mentioned incidentally. Of course, if the Jews do not die from
starvation, it is to be hoped that anti-Jewish measures will be
expedited in the future.”

The third short quotation is an excerpt from the minutes of a labor conference held by the political leaders of the Labor Front of the NSDAP in the Government General, on 14 December 1942. The Tribunal will find it on the reverse of Page 89 of the document book, second column, second paragraph: