Chapter XXIV: Section C: of my Appendix A, that the crimes of the SS were committed, (6)

More cannot be read either into the Charter or into Law Number 10. Yesterday Sir David defined his attitude to the five points which were submitted by me for consideration as to relevancy of evidence. In regard to the two last points he raised the objection that they were to be dealt with in the subsequent trials envisaged by Law Number 10. It was a question of the grounds for exonerating persons—for instance, coercion, deception, _et cetera_. I want to avoid repetition and point out only the following: It is quite correct that the question of coercion and deception and other reasons for the exoneration of persons be discussed in subsequent trials. In connection with this, Sir David also called the attention of the Court to a really noteworthy problem—that is, the problem of a deception by the state, that is, a problem of mass suggestion. This is really a very important problem. It affects many members, as far as their joining is concerned. But it leads to the broadest deduction as to the guilt of the entire membership and the character of the total organization.

We have therefore to pay particular attention as to how the problem of deception on the part of the state affected the member and thereby was characteristic of the organization. All grounds for the exoneration of persons are therefore also to be examined by the Tribunal in judging the question of the character of the organization. Furthermore, evidence must be taken on the broadest basis.

If the Tribunal were to make any limitation now, there would be the possibility that later, at the end of the Trial, in contrast to its present opinion, it might consider as relevant material now excluded.

In yesterday’s debate the importance of the question was discussed, in regard to the proposed declaration of criminality, as to what should be considered as constituting knowledge on the part of the single member. Sir David here applied the standard of a person of average intelligence and wants to consider as guilty anybody who was above that standard.

I have already recently explained that in regard to laws threatening such a severe punishment as in this case, all systems of penal law require that willful intent on the part of the perpetrator be proved. Offenses of negligence are punishable only in exceptional cases, and then only with minor penalties. At any rate in a case of an offense by negligence it must be clear to the offender that he is under an obligation to examine his action from the point of view of penal law. Law Number 10—and now in connection with it the proposed verdict of this Court—represents an ex post facto law.

In the case of the main defendants the Prosecution have justified the deviation from the generally recognized principle _nulla poena sine lege_ on the ground that they themselves did not act in accordance with this principle and cannot, therefore, base themselves on it now. This, however, does not in any way apply to the organizations, quite apart from the question whether this argument can be accepted at all.

At any rate, however, in considering the element of negligence one should also not overlook the fact that the obligation to exercise attention differs in the case of _ex post facto_ laws from what it would be in the case of existing laws.

In this connection I should like to refer to the fact that the question of whether the statutes of the Party organizations were illegal or not has often been examined already, even earlier, at the time of the Weimar Republic. Political considerations definitely favored such a declaration. Apparently, legal considerations at that time did not let the carrying out of such a procedure seem practical. What measure should we then apply to the individual member’s ability to judge such matters, if the legal problem is so difficult and lends itself so very much to discussion?

The Prosecution has restricted the motion so as to exclude the auxiliary workers in the case of the Gestapo. The reason for this can only have been that in the case of these members knowledge cannot be assumed to be self-evident. I ask that the conclusions drawn in this individual case be applied to the members of other organizations. Should not the individual member of an organization comprising millions who had far less contact with the executive organ than did an auxiliary worker of the Gestapo—should not this member be judged much more favorably, as far as knowledge is concerned, than this group which has been excepted?

Are we not in particular obliged to use the best methods possible to inform ourselves as to the knowledge or lack of knowledge of the individual member? Sir David, in discussing the problem of negligence, suddenly spoke of an ostrich policy. But here we have to consider that the person who sticks his head into the sand in order not to see has actually seen something and therefore does not want to see any more. It is quite different in the case of this member who from the sources at his disposal can gain no knowledge of individual actions; who, in particular, has no knowledge of whether possibly only. . .

THE PRESIDENT: Forgive my interrupting you, but the Tribunal have already heard and listened with attention to your interesting argument, and the argument that they now are prepared to listen to is only a very short argument in rebuttal. As I have already pointed out, it seems to me that the greater part of what you are now saying is what you have already said. We cannot go on hearing these arguments at great length.

DR. KUBUSCHOK: Since I have arrived at the end of my remarks, I should like in conclusion just to introduce one point of view which concerns the defense of the Reich Cabinet. The number of members of the Reich Cabinet is very limited. One half are in the defendants’ dock. Is it really necessary to consider the other half cumulatively as an organization, since the small number of those concerned makes possible an individual trial, with all the legal guarantees given therein? To this extent I should like to refer to the remarks made by my colleague, Dr. Laternser, who mentioned the provision of the Charter that the Tribunal is not compelled to reach a decision but that for reasons of expediency it can refrain from doing so.

THE PRESIDENT: Mr. Biddle wants to ask you some questions.

THE TRIBUNAL (Mr. Biddle): I have just one question. Will you listen to this very carefully?

If the Tribunal find that an organization was being used for a criminal purpose, and certainly, with respect to some organizations, there is ample evidence that might justify such a finding, why, then, would the Tribunal not be justified in holding that organization as a criminal organization insofar as it was composed of persons who had knowledge that it was being so used and voluntarily remained members of the organization? In other words, the definition would state that it consisted of members who had actual knowledge that the organization was engaged in the commission of crime.

DR. KUBUSCHOK: The organization cannot be separated from the total number of its members. The declaration of criminality in connection with Law Number 10 is to affect each individual member. The task of the Tribunal would not be fulfilled if it limited that task and excluded from the organization unspecified individuals. In the task which I have mentioned we cannot overlook the practical purpose, and that will not be guaranteed if such a limitation is made.

THE TRIBUNAL (Mr. Biddle): I will ask just one more question. I do not think you have answered my question. I will put it very simply again.

How would that definition be unfair to any individual?

DR. KUBUSCHOK: If only a limited circle of persons in connection with the organization is branded as criminal, this necessarily results in an injustice to the other members of the organization. The declaration naturally affects the name of the entire organization, and, therefore, the declaration of criminality affects each individual member, even if one tries to limit the definition.

THE TRIBUNAL (Mr. Biddle): Thank you.

THE PRESIDENT: I think in view of the time we had better adjourn for 10 minutes.

[_A recess was taken._]

DR. LATERNSER: Mr. President, it was not my intention to make statements today about the concept of the criminal organizations, because I believe that my statements of yesterday on this point were comprehensive. I should merely like to state briefly my attitude to the second question put by Mr. Biddle to my colleague, Kubuschok.

The second question, if I understood it correctly, was as follows: Why is it unfair to the individuals who were members of an organization, or why can it be unfair to them, if this organization is declared criminal? This declaration of the criminality of an organization is certainly unfair to all those members who had no knowledge of any supposedly criminal purpose and aims. For in this question one has to. . .

THE TRIBUNAL (Mr. Biddle): You misunderstood the question, I think; so, to save time—the question was a very simple one. I do not want to go into it unless you want to. I will repeat it again. I said this: If an organization was being used for criminal purposes—and I added that there was very great evidence that such was the case in certain instances—why would it not be proper to hold it a criminal organization insofar as it was composed of persons who had knowledge that it was being so used and voluntarily remained members? Of course, that would exclude from the organization everybody who did not have knowledge that it was engaged in criminal purposes.

DR. LATERNSER: Then I did not understand the question quite correctly, and further statements in regard to these questions, which have now been settled, are unnecessary.

DR. LÖFFLER: I should like first of all to correct a misunderstanding. Sir David stated yesterday in his reply that I had admitted that the SA had participated in the 10th and 11th of November 1938. I emphasize expressly that I stated that only 2 percent of the SA at the most were involved in individual actions, and that obviously applies to this event as well. This example occasions me to underscore what my colleague, Servatius, has previously stated about taking into consideration the so-called mistake of an organization, in a case where an organization deviates from its path and commits an error—which should be avoided. The 98 percent who did not participate, as well as the 2 percent who did participate there, with few exceptions, all regarded this action with aversion and disgust and were not inwardly in agreement with it.

It is therefore an error on the part of the Indictment if on the basis of this single event, on the basis of this exceptional case, general conclusions are drawn as to the general character of the organization. For it is rightfully protested that the very rejection of this action is a proof that this is an exception to the general tendency of the organization.

If, then, it is asserted as a second point that the SA was also concerned with concentration camps, that is also a further typical proof of the false conclusion to which one can come in the case of judgment against the organizations. Of 4 millions there were 1,000 men at the most, that is, only 0.5 percent. The remaining 3,999,000 had no knowledge of this, and this can be proved. No one will wish to claim that the fact that 0.5 percent were involved in something about which the others knew nothing at all allows a conclusion to be drawn as to the question of criminal character. But this small percentage, as such, is not an answer to the question which is being raised at this point. Rather we are, as before, of the opinion that the explanation which was made by attorney Kubuschok absolutely covers the criminal character as formulated by the Defense, if the basic conditions are met, as set down by attorney Kubuschok in agreement with all defense counsel for the organizations. On the basis of this formulation, that question which Justice Biddle previously put to counsel for the various organizations can readily be answered.

I should like to emphasize that yesterday Mr. Justice Jackson made the suggestion that, instead of having countless witnesses, experts be heard on the subject of what willful intent can be assumed in the case of the single organizations. I should like to oppose this emphatically. One cannot hear any witness or any expert who can tell the Court what, so to speak, that “common sense” was on the basis of which the question is to be judged—what knowledge the single members had.

The members, as far as intelligence is concerned, vary greatly. There are those of average intelligence and there are less intelligent members of the organizations. If a judgment is to be passed here which also affects less intelligent members of the organizations and condemns them, then it is a basic principle of law that this should not be done on the basis of what the intelligent members of the organizations might and could have known; that would be an injustice to the average persons and the less intelligent. Not even the average persons can be taken as a basis, since this would be an injustice to the still less intelligent, who would be included in and affected by this judgment.

In conclusion I should like to point out that yesterday’s debate on the question of the effect of the judgment which this Court is to pass confirmed in full measure the fears of the Defense Counsel. Mr. Justice Jackson declared that this judgment would have the character of a declaration. This is not compatible with the statement which Lieutenant General Clay, the Deputy Military Governor of the American occupied zone, made yesterday in an interview for the _Neue Zeitung_, the American paper for the German population. I should like to quote a sentence from the latest issue which refutes Justice Jackson’s opinion. Lieutenant General Clay declares in regard to the question of the fate of these interned in the United States zone of occupation:

“The decision of the Nuremberg Tribunal will decide what will
happen to them. Their number is at present 280,000 to 300,000.
Should the International Tribunal at Nuremberg, however,
consider all the members of the indicted National Socialist
organizations war criminals, then the number will be increased
to 500,000 or 600,000.”

The declaration made by Justice Jackson yesterday that no mass retribution is intended could be made only in reference to the present standpoint of his Government. But there is no guarantee that other governments will not take another stand or that his Government, which is not bound to Justice Jackson’s opinion, will not alter its stand.

I should like to conclude with this remark: Justice Jackson mentioned the shock which the combination of the Charter and decision desired by the Prosecution—in connection with Law Number 10—has been to the Defense. I believe that the effect of this shock is not confined to the Defense alone but affects all people who are interested in justice, for if the combination of these various laws gives the national courts the opportunity to call millions of members of organizations to account—among whom, as Justice Jackson also could not deny yesterday, there are innocent people—and if punishments for mere membership ranging from a fine to the death sentence are provided, then it is the duty of the Defense to point out that the procedure here obviously threatens to deviate from the basis of law and will necessarily lead to arbitrary action.

If Justice Jackson then in answer to this refers to the effect of shock in connection with the death of many Jews, one can say that those things happened outside the law and in the name of force. This Charter and this Tribunal, however, want to do away with force and put justice in its place. But justice must be clear and it must be sure.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Tribunal said earlier that certain questions had been asked of me. I am perfectly prepared to answer the three questions if the Tribunal desire their time to be occupied by my so doing.

THE PRESIDENT: I don’t think the Tribunal wish to hear any further arguments unless you particularly want to answer anything.

SIR DAVID MAXWELL-FYFE: I did not intend to argue at all. It was only that Dr. Dix put two questions to me on which he asked my view, and Dr. Servatius one, but I am in the hands of the Tribunal. I do not want it to be thought that the Prosecution are not prepared to answer the questions.

THE PRESIDENT: If you can answer them shortly, we should be quite glad to hear them.

SIR DAVID MAXWELL-FYFE: The first question that Dr. Dix asked me was to clarify what I had said about the Führerprinzip in relation to the Reichsregierung. I can answer that in two sentences. I said that, in addition to the ordinary support which members of the Reichsregierung in 1933 gave to Hitler under the Führerprinzip, they entrusted their consciences and wills to him and adopted completely his points of view.

In order that Dr. Dix may be under no misapprehension with regard to his client, the case for the Prosecution may be put in the words of Dr. Goebbels, one of the conspirators, on the 21st of November 1934, in conversation with Dr. Schacht:

“I assured myself that he absolutely represents our point of
view. He is one of the few who accepts the Führer’s position
entirely.”

The second point was on the question of the Party program in relation to the Treaty of Versailles and the Anschluss. Dr. Dix asked me to deal with those who desired to effect the aims of the Party program in a peaceful way. The Prosecution say that does not arise, that the Party program must be considered in the background of Hitler and other publications as to the use of force and also as to the existing state of things in the relationship of Germany with the Western Powers and also of treaty obligation to Austria and Czechoslovakia.

The third question that was put to me was by Dr. Servatius, about the Leadership Corps. You will remember, My Lord, that in the statement of the Tribunal the Prosecution were asked, if they were making any limitation, to make it now. That is contained in the statement of the Tribunal. The limitation which we have made—that is, only including the staff in the case of the Reichsleitung, Gauleitung, and Kreisleitung, and excluding the staff in the case of the Ortsgruppenleiter, Zellenleiter, and Blockleiter—is the view to which the Prosecution adhere and which has been agreed upon by the different delegations. I wanted Dr. Servatius to know that that was the position. I don’t intend to repeat the reasons for it which were given by my friend, Mr. Justice Jackson.

THE PRESIDENT: There is only one thing I should like to say. I think it might be useful to the Tribunal, if you have them, to let us have copies of the British statutes to which Mr. Justice Jackson referred and also of certain judgments of the German courts—if you have copies available.

SIR DAVID MAXWELL-FYFE: They will be found for the Tribunal and the Tribunal will receive them within the shortest possible time.

THE PRESIDENT: Mr. Dodd, I understand that you have an affidavit which you wish to put in with reference to the High Command?

MR. DODD: Yes, we do have it. We located this affidavit on Thursday; the Tribunal had inquired about it on the afternoon of the day before—on Wednesday, I believe it was. We have prepared for the Tribunal a list of the offices comprising the German General Staff and High Command as defined by the Indictment in Appendix B. The list was compiled from official sources in the Admiralty Office of Great Britain, the War Office of Great Britain, and the Air Ministry of Great Britain, and supplemental information was obtained from senior German officers, now prisoners of war in England and in Germany. The list is attached to this affidavit, as we intended to submit it this morning to the Tribunal; and the affidavit describes the source from which this information was obtained and it points out that the list does not purport to be exhaustive or necessarily correct in every detail. It is, however, substantially a complete list of the members of the General Staff and of the High Command and of the High Command group, and on the basis of this compilation there appear to have been a total of 131 members, of whom 114 are thought to be living at the present time. I wish to offer the list formally, together with this affidavit, as Exhibit Number USA-778 (Document Number 3739-PS), I ask that it be accepted without reading. However, of course, if the Tribunal would like it read over the public address system, I should be glad to do so.

THE PRESIDENT: No, I do not think you need read it over. Copies have been given to the Defense?

MR. DODD: Yes, they have, Your Honor. They have been given to the Defense.

THE PRESIDENT: Very well. Thank you.

MR. DODD: Colonel Smirnov, if Your Honor pleases, is prepared to read the document with reference to Stalag Luft III. If the Tribunal would like, we will have him do so.

THE PRESIDENT: I think that might perhaps be done on Monday morning.

MR. DODD: Very well.

THE PRESIDENT: The Tribunal will now adjourn.

[_The Tribunal adjourned until 4 March 1946 at 1000 hours._]

SEVENTY-THIRD DAY
Monday, 4 March 1946

_Morning Session_

MR. COUNSELLOR SMIRNOV: Sir, a few days ago the Tribunal issued instructions concerning the expedience of reading into the record the official British report on the responsibility for the slaying of 50 officers of the Royal Air Force coincidentally, as far as possible, with the proposed interrogatory of General Westhoff and the senior criminal counsel, Wielen. May I read into the record some of the more essential passages from this report of the British Government? I shall read into the record those parts of the document which, on the one hand, testify to the general character of this criminal act and, on the other hand, establish the responsibility for the crime.

THE PRESIDENT: Colonel Smirnov, you are offering the document, are you, as evidence? You are seeking to put the document in evidence?

MR. COUNSELLOR SMIRNOV: This document has already been presented in evidence and has already been accepted by the Tribunal. I wished only to read into the record certain extracts from this document. It has been submitted as Exhibit Number USSR-413 (Document Number UK-48).

THE PRESIDENT: Very well.

MR. COUNSELLOR SMIRNOV: I am quoting Paragraph 1 of the official British report:

“1. On the night of 24-25 March 1944, 76 R.A.F. officers escaped
from Stalag Luft III at Sagan in Silesia, where they had been
confined as prisoners of war. Of these, 15 were recaptured and
returned to the camp, 3 escaped altogether, 8 were detained by
the Gestapo after recapture. Of the fate of the remaining 50
officers the following information was given by the German
authorities:

“(a) On 6th April 1944, at Sagan, the acting commandant of
Stalag Luft III (Oberstleutnant Cordes) read to the senior
British officer (Group Captain Massey) an official communication
of the German High Command that 41 officers (unnamed) had been
shot, ‘some of them having offered resistance on being arrested,
others having tried to escape on the transport back to their
camp.’

“(b) On 15th April 1944, at Sagan, a member of the German camp
staff (Hauptmann Pieber) produced to the new senior British
officer (Group Captain Wilson) a list of 47 names of the
officers who had been shot.

“(c) On 18th May 1944, at Sagan, the senior British officer was
given three additional names, making a total of 50.

“(d) On or about 12th June 1944, the Swiss Minister in Berlin
received from the German Foreign Office, in reply to his enquiry
into the affair, a note to the effect that 37 prisoners of
British nationality and 13 prisoners of non-British nationality
were shot when offering resistance when found or attempting to
re-escape after capture. This note also referred to the return
of urns containing the ashes of the dead to Sagan for burial.”

The official German version—the official version of the German authorities—indicated that these officers were shot allegedly while attempting to escape. As a matter of fact, as definitely proved by the documentation of the investigation carried out by the British authorities, the officers were murdered—and murdered by members of the Gestapo on direct orders from Keitel and with the full knowledge of Göring.

I shall, with your permission, read into the record in confirmation of this fact two paragraphs—or rather two points—from the official British report, that is, Point 7 and Point 8:

“7. General Major Westhoff at the time of the escape was in
charge of the general department relating to prisoners of war,
and on 15th June 1945 he made a statement in the course of which
he said that he and General Von Graevenitz, the inspector of the
German POW organization, were summoned to Berlin a few days
after the escape and there interviewed by Keitel. The latter
told them that he had been blamed by Göring in the presence of
Himmler for having let the prisoners of war escape.

“Keitel said, ‘Gentlemen, these escapes must stop. We must set
an example. We shall take very severe measures. I can only tell
you that the officers who have escaped will be shot; probably
the majority of them are dead already.’ When Von Graevenitz
objected, Keitel said, ‘I do not care a damn; we discussed it in
the Führer’s presence and it cannot be altered.’”

Point 8: I begin the quotation of the official British report:

“Max Ernst Gustav Friedrich Wielen was then the officer in
charge of the Criminal Police (Kripo) at Breslau, and he also
made a statement, dated 26th August 1945, in the course of which
he said that as soon as practically all the escaped R.A.F.
officers had been recaptured he was summoned to Berlin where he
saw Arthur Nebe, the Chief of the Kripo head office, who showed
him a teleprint order signed by Kaltenbrunner, which was to the
effect that on the express order of the Führer over half of the
officers who had escaped from Sagan were to be shot after their
recapture. It was stated that Müller had received corresponding
orders and would give instructions to the Gestapo. According to
Wielen the Kripo, who were responsible for collecting and
holding all the recaptured prisoners, handed over to the Gestapo
the prisoners who were to be shot, having previously provided
the Gestapo with a list of the prisoners regarded by the camp
authorities as ‘troublesome.’”

I would also ask the Tribunal’s permission to read into the record that part of the text of the official report of the British Government which deals with the methods of investigation in regard to individual officers. This documentation has been systematized and divided into three parts. I take the liberty of reading into the record the data of the findings referring to the three separate parts. I quote Page 3 of the Russian text, beginning from Paragraph 2:

“Flight Lieutenants Wernham, Kiewnarski, Pawluk, and Skanziklas.

“On or about 26th March 1944 . . .

THE PRESIDENT: Colonel Smirnov, are you going to read now some of the evidence upon which the report is based?

MR. COUNSELLOR SMIRNOV: Mr. President, I should like to read out only from the text proper and particularly those parts of the report which testify to the methods of investigation applied in the case of individual officers. I should like to begin reading from the paragraph dealing with the three groups of officers.

THE PRESIDENT: Paragraph 4?

MR. COUNSELLOR SMIRNOV: Yes.

THE PRESIDENT: Very well.

MR. COUNSELLOR SMIRNOV: “On or about the 26th of March 1944
these officers were interrogated at the police station in
Hirschberg and were then moved to the civil gaol in that town.
On the morning of 29th March Pawluk and Kiewnarski were taken
away and later in the day Skanziklas and Wernham left. Both
parties were escorted, but their destination was unknown. They
have not been seen since and the urns later received at the
Stalag showing their names bear the date 30th March 1944.”

And now the next group of British officers:

“Squadron Leader Cross, Flight Lieutenants Casey, Wiley, and
Leigh, and Flight Officers Pohe and Hake.

“Between 26th and 30th March 1944 these officers were
interrogated at the Kripo headquarters in Görlitz and then
returned to the gaol there. During the interrogation Casey was
told that ‘he would lose his head,’ Wiley that ‘he would be
shot,’ and Leigh that ‘he would be shot.’ Hake was suffering
from badly frostbitten feet and was incapable of traveling for
any distance on foot. On 30th March the officers left Görlitz in
three motor cars accompanied by 10 German civilians of the
Gestapo type. The urns later received at the Stalag bear their
names and show them to have been cremated at Görlitz on 31st
March 1944.

“Flight Lieutenants Humpreys, McGill, Swain, Hall, Langford, and
Evans; Flight Officers Valenta, Kolanowski, Stewart, and
Birkland.

“These officers were interrogated at the Kripo headquarters in
Görlitz between 26th and 30th March. Swain was told that ‘he
would be shot,’ Valenta was threatened and told that ‘he would
never escape again.’ Kolanowski was very depressed after his
interview. On 31st March these officers were collected by a
party of German civilians, at least one of whom was in the party
which had come on the previous day. The urns later received at
the Stalag bore their names and show them to have been cremated
at Liegnitz on a date unspecified.”

I wish to draw the attention of the Tribunal to the fact that similar data also relate to different groups of British officers slain by the Germans in Stalag Luft III.

The following page of the text includes identical data relating to Flight lieutenants Grisman, Gunn, Williams, and Milford, Flight Officer Street and Lieutenant McGarr. Similar information is given concerning Flight Lieutenant Long, Squadron Leader J. E. Williams, Flight Lieutenants Bull and Mondschein, and Flight Officer Kierath. The same information is given with reference to Flight Officer Stower, Flight Lieutenant Tobolski, Flight Officer Krol, Flight Lieutenants Wallen, Marcinkus, and Brettell, Flight Officer Picard and Lieutenants Gouws and Stevens, Squadron Leader Bushell and Lieutenant Scheidhauer, Flight Officer Cochran, Lieutenants Espelid and Fugelsang, Squadron Leader Kirby-Green and Flight Officer Kidder, Squadron Leader Catanach and Flight Officer Christensen, and Flight Lieutenant Hayter.

I shall, with your permission, read into the record one more paragraph from this official report. I refer to Paragraph 6 of the official British report and also to Paragraph 5, because it is of essential importance.

THE PRESIDENT: I was going to suggest you should read Paragraph 5.

MR. COUNSELLOR SMIRNOV: I am going to read Paragraph 5 of the British text:

“According to the evidence of the survivors there was no
question of any officers having resisted arrest or of the
recaptured officers having attempted a second escape. All were
agreed that the weather conditions were against them and that
such an attempt would be madness. They were anxious to be
returned to the Stalag, take their punishment, and try their
luck at escaping another time.

“6. The Swiss representative (M. Gabriel Naville) pointed out on
9th June 1944 in his report on his visit to Sagan that the
cremation of deceased prisoners of war was most unusual (the
normal custom being to bury them in a coffin with military
honors) and that was the first case known to him where the
bodies of deceased prisoners had been cremated. Further it may
be noted that if, as the Germans alleged, these 50 officers who
were recaptured in widely scattered parts of Germany had
resisted arrest or attempted a second escape, it is probable
that some would have been wounded and most improbable that all
would have been killed. In this connection it is significant
that the German Foreign Office refused to give to the protecting
power the customary details of the circumstances in which each
officer lost his life.”

Those are the parts of the official report of the British Government which I had the honor to communicate to the Court.

THE PRESIDENT: I think it would perhaps be better if you also read the appendix so as to show the summary of the evidence upon which the report proceeded, Paragraph 9.

MR. COUNSELLOR SMIRNOV: I refrained from reading the appendix because it had already been read in due course by Sir David Maxwell-Fyfe. I shall read it once more with pleasure:

“9. The appendix attached hereto gives a list of the material
upon which this report is based. The documents referred to are
annexed to this report.

“Appendix.

“Material upon which the foregoing report is based:

“(1) Proceedings of court of inquiry held at Sagan by order of
the senior British officer in Stalag Luft III and forwarded by
the protecting power.

“(2) Statements of the following Allied witnesses: (a) Wing
Commander Day, (b) Flight Lieutenant Tonder, (c) Flight
Lieutenant Dowse, (d) Flight Lieutenant Van Wymeersch, (e)
Flight Lieutenant Green, (f) Flight Lieutenant Marshall, (g)
Flight Lieutenant Nelson, (h) Flight Lieutenant Churchill, (i)
Lieutenant Neely, (k) P. S. M. Hicks.

“(3) Statements taken from the following Germans: (a) Major
General Westhoff, (b) Oberregierungsrat und Kriminalrat Wielen
(two statements), (c) Oberst Von Lindeiner.

“(4) Photostat copy of the official list of dead transmitted by
the German Foreign Office to the Swiss Legation in Berlin on or
about 15 June 1944.

“(5) Report of the representative of the protecting power on his
visit to Stalag Luft III on 5 June 1944.”

THE PRESIDENT: Then, for the purposes of the record, you had better read in the signature and the department at the bottom.

MR. COUNSELLOR SMIRNOV: The document is signed by H. Shapcott, Brigadier, Military Deputy, and is certified by the Military Department, Judge Advocate General’s Office, London, 25 September 1945.

THE PRESIDENT: Colonel Smirnov, so far as the Russian Chief Prosecutor is concerned, does that conclude the case for the Prosecution?

MR. COUNSELLOR SMIRNOV: Yes.

THE PRESIDENT: Thank you.

DR. NELTE: Mr. President, Paragraph 9 of the report which has just been read by the Prosecution mentions the documents which served as a basis for it and says that they are attached to the report. The individual documents on which the report is based are listed in the appendix. I ask the Tribunal to decide whether Document USSR-413 satisfies the requirements of Article 21 of the Charter, since the material on which it was based, and which is expressly mentioned in the report, has not been produced along with it. I request that the Prosecution be asked to make the appendix available to the Defense as well.

THE PRESIDENT: Dr. Nelte, do you mean that you have only had the report made by the Brigadier and have not seen any part of the other evidence upon which the report proceeds?

DR. NELTE: Mr. President, the Tribunal decided during an earlier phase of this Trial . . .

THE PRESIDENT: [_Interposing._] Yes, but I did not ask you what we had decided. I asked what you had received. Have you received from the Prosecution the whole of this document or only the report made by the Brigadier?

DR. NELTE: Only the report, without the appendix.

THE PRESIDENT: Well, the Tribunal certainly intended that the whole of the document should be furnished to defendant’s counsel, and that must be done so that you may have all the documents before you.

DR. NELTE: But that has obviously not been done. The appendix expressly mentions statements made by Major General Westhoff and by Oberregierungsrat Wielen. I am not acquainted with either of these statements. They were not attached to the report.

THE PRESIDENT: You must have them. The Prosecution must see that the whole of this document is furnished to the Defense Counsel.

SIR DAVID MAXWELL-FYFE: Certainly, My Lord. I do not think the whole of it has been copied, but if Dr. Nelte will let us know if he wants the whole of it, or a part, we will co-operate the best way we can. The last thing we desire is that he should not have it. We want him to have everything he wants.

THE PRESIDENT: Well, Sir David, will you inform the Tribunal whether the Prosecution have now concluded their case.

SIR DAVID MAXWELL-FYFE: Yes, My Lord. That is the conclusion of the case for the Prosecution.

THE PRESIDENT: Very well. Then we will now proceed with the applications for witnesses and documents by the second four of the defendants: Kaltenbrunner, Rosenberg, Frank, and Frick.

DR. KURT KAUFFMANN (Counsel for Defendant Kaltenbrunner): The Defendant Kaltenbrunner wishes to call a number of witnesses whom I will name now. First, Professor Dr. Burckhardt.

SIR DAVID MAXWELL-FYFE: My Lord, if the Tribunal approves, we will adopt the same procedure as was done on the first four defendants.

With regard to the three Swiss witnesses, Burckhardt, Brachmann, and Meyer, the interrogatories were granted on the 15th of December and submitted on the 28th of January. The Prosecution considered that the interrogatories were rather on the vague side and suggested that they might be made more precise. The Prosecution have no objection to interrogatories in principle, and I am sure that there would not be much difference between Dr. Kauffmann and the Prosecution as to the form. That applies to the first three witnesses.

THE PRESIDENT: We are informed that none of these three witnesses has been located yet.

SIR DAVID MAXWELL-FYFE: Well, I respectfully agree, My Lord. That is the position of the Prosecution, that we have no objection in principle to these interrogatories, and if we can help the Court in any way to locate the witnesses, we should be glad to do so.

THE PRESIDENT: When were the interrogatories furnished to the Prosecution?

SIR DAVID MAXWELL-FYFE: The 28th of January, My Lord.

THE PRESIDENT: And were the Prosecution’s objections communicated to the Defense Counsel shortly afterwards, or when?

SIR DAVID MAXWELL-FYFE: I am sorry, I am afraid I have not got that date, My Lord.

THE PRESIDENT: Wouldn’t the most sensible course be for the Prosecution to try to agree upon a suitable form of interrogatory whilst the General Secretary is continuing his inquiries to find the witnesses?

SIR DAVID MAXWELL-FYFE: Yes. Well, if Dr. Kauffmann will communicate with me, I have no doubt that we could agree on a form that would be mutually acceptable.

THE PRESIDENT: Very well.

DR. KAUFFMANN: Mr. President, I think there is no need for me to repeat the individual questions which I have listed in the interrogatory. There are 19 of them. I do not think that I need repeat them now.

THE PRESIDENT: No, certainly not.

DR. KAUFFMANN: The fourth witness is the former German Minister in Belgrade, Neubacher. At present he is in the internment camp Oberursel near Frankfurt, in American custody.

SIR DAVID MAXWELL-FYFE: No objection to this witness.

DR. KAUFFMANN: Does the Tribunal want me to specify the evidence?

THE PRESIDENT: Yes, if you would.

DR. KAUFFMANN: Neubacher will, in the opinion of the Defendant Kaltenbrunner, be able to testify that the order given by Hitler in October 1944 to stop the persecution of the Jews was really given at Kaltenbrunner’s suggestion.

Furthermore, in the opinion of the defendant, he will be able to testify that when Himmler was appointed Chief of the Reichssicherheitshauptamt he put the defendant in charge of Amt III and VI. This seems to me to be important, since so far the Indictment has always been based on the defendant’s definite connection with Amt IV, which is, indeed, borne out to a certain extent by the evidence. Neubacher is expected to be able to testify to this.

THE PRESIDENT: Dr. Kauffmann, if those are the questions which it is desired to interrogate Neubacher on, couldn’t they be dealt with by interrogatories?

DR. KAUFFMANN: According to the information given to me by Kaltenbrunner, Kaltenbrunner attaches importance to the personal appearance of this witness for reasons which are easy to understand. I believe that Kaltenbrunner considers this witness one of the most important witnesses, and he would like to see this witness called.

THE PRESIDENT: Well, the Tribunal will consider that.

DR. KAUFFMANN: The next witness is Number 5, Wanneck, at present in American custody in Heidelberg.

SIR DAVID MAXWELL-FYFE: The Prosecution suggests that the witness Wanneck is cumulative. According to Dr. Kauffmann’s application, he is going to deal with the point that the Defendant Kaltenbrunner was actually occupied mainly with the task of the intelligence service and that he objected to persecution of the Jews. That is already covered by Neubacher, and it is also covered by the cross-examination of the Prosecution’s witness Schellenberg, who was the chief of Amt VI, which Dr. Kauffmann has set out in his note on the witness Neubacher, Number 4, as being one of the Intelligence Ämter.

DR. KAUFFMANN: I leave it to the Tribunal to decide whether this witness could be dealt with by means of an interrogatory. But I do consider the evidence material relevant in the case of Wanneck as well. In a certain sense it is cumulative, but some points in it go further. But I agree to an interrogatory.

The sixth witness is Scheidler.

THE PRESIDENT: Sir David, do you think it would be unreasonable to administer an interrogatory?

SIR DAVID MAXWELL-FYFE: No, My Lord. Generally I make no objection to interrogatories at all.

With regard to Scheidler, he was, as I understand the application, the Defendant Kaltenbrunner’s adjutant, and as such the Prosecution would not make any objection. But I think it would be convenient if I were to draw the attention of the Tribunal to the fact that the next six witnesses, Numbers 6 to 11 inclusive, all deal with concentration camps, and numbers 6, 8, 9, and 11 deal with Mauthausen. I want to give Dr. Kauffmann warning that I shall ask for some selectivity among these six witnesses.

The Prosecution feel that the application for an adjutant is a reasonable one, but it will be reflected in objections to later witnesses.

DR. KAUFFMANN: The defendant naturally considers it important that the adjutant who served him for many years and who accompanied him on every single trip, as Kaltenbrunner told me himself, be called. He knows also, for instance, that the wireless message to Fegelein, which is part of the accusation, did not come from Kaltenbrunner and that his radiogram was never sent. He also knows that Kaltenbrunner had made all preparations for the Theresienstadt camp to be made accessible to the Red Cross. These are things which have not been mentioned by previous witnesses, but which shed some light on the person of the defendant.

THE PRESIDENT: You are speaking now of Scheidler?

DR. KAUFFMANN: Yes.

THE PRESIDENT: Sir David, the Tribunal would like you to deal with the whole of that group together, and then Dr. Kauffmann can answer what you say.

SIR DAVID MAXWELL-FYFE: With pleasure, My Lord.

The next witness is Ohlendorf, who was called as a witness for the Prosecution. The situation as I have found it is that Dr. Kauffmann did cross-examine the witness Ohlendorf on the Defendant Kaltenbrunner’s responsibility on concentration camps on the 3rd of January of this year, at Page 2034 of the transcript (Volume IV, Page 335).

The witness Wisliceny, Number 12, who has not been cross-examined on behalf of Kaltenbrunner by Dr. Kauffmann, would be the natural person to deal with that point. But, of course, if Dr. Kauffmann has any special point for the recalling of Ohlendorf, he will tell the Tribunal.

That is the position.

THE PRESIDENT: Dr. Kauffmann, if you had the opportunity of cross-examining General Ohlendorf and actually availed yourself of the opportunity wasn’t that the appropriate time for you to put any questions which you had on behalf of the Defendant Kaltenbrunner?

DR. KAUFFMANN: I should like to remind you that Kaltenbrunner was ill for more than 12 weeks and that I could get almost no information from him. At the session of 2 January the right of cross-examining the witnesses at a later date was expressly granted me by the Tribunal. I had, as the Court will remember, made a motion to adjourn, and then I was permitted to cross-examine the witnesses at a given time which would suit me.

That appears in the transcript of 2 January 1946.

As these witnesses have all been called in Kaltenbrunner’s absence, I should like to cross-examine now in his presence. I am, however, prepared to forego the cross-examination, if I can talk to the witnesses beforehand. Perhaps it will not be necessary to call one or the other witness.

THE PRESIDENT: What do you mean by one or the other witness? Which is the other? Wisliceny?

DR. KAUFFMANN: Number 7, Ohlendorf, and then Number 11, Höllriegel, and Number 12, Wisliceny, also Number 14, Schellenberg. All these witnesses have been heard here, and Kaltenbrunner was ill at the time.

THE PRESIDENT: What do you say about it, Sir David?

SIR DAVID MAXWELL-FYFE: I should suggest that Dr. Kauffmann cross-examine Number 11, Höllriegel, and Number 12, Wisliceny, whom he has not cross-examined so far. And then, if there is any special point which remains to be dealt with by the witness Ohlendorf, Dr. Kauffmann can make a special application to the Court.

THE PRESIDENT: Yes. Well, the Tribunal would like to know what position you take about the defendants’ counsel seeing these witnesses and discussing with them their evidence before they call them. I mean, there is a distinction between cross-examination when defendants’ counsel cannot see them and calling them as their own witnesses when they can see them.

SIR DAVID MAXWELL-FYFE: Well, the Prosecution feel that they ought simply to cross-examine witnesses that have been called by the Prosecution, unless there are very special circumstances. I think that Dr. Seidl showed special circumstances with regard to the case that he mentioned of one witness in special relation to the Defendant Hess. But as a general rule, the Prosecution submit that witnesses that they have called should be cross-examined without prior consultation.

THE PRESIDENT: Well, Sir David, the Tribunal would like to know your view. Of course, we are not deciding the point now, but we should like to know your view as to whether it would be a proper course to allow the defendants’ counsel to see the particular witness in the presence of a representative of the Prosecution, because it may be that that would lead to a shortening of the proceeding, because the defendants’ counsel might after that not wish to cross-examine the witness any further.

SIR DAVID MAXWELL-FYFE: Well, I am afraid that would require discussions with my colleagues on each particular witness. I am afraid I have not covered that point; witnesses 11 and 12 were called by my American colleagues and although I take the general position which I put before the Tribunal, I have not discussed that point; but I shall be pleased to discuss it with them and perhaps to inform the Tribunal later on in the day.

Of course, you will appreciate the fact that there may be a special point relating to a special witness that may come up in this connection.

DR. KAUFFMANN: Perhaps I can explain this. The witness Ohlendorf was reserved for me for cross-examination. In accordance with an agreement made with the American Prosecution, I dispensed with a cross-examination of Ohlendorf and on this condition was allowed to speak to him. I think it would be quite fair if I could do the same with other witnesses. I forego the cross-examination and can speak to the witnesses beforehand. Perhaps one or the other will turn out to be unnecessary.

THE PRESIDENT: I am not quite sure that you understand the view being put to you, Dr. Kauffmann. The view is that when a witness is called on behalf of the Prosecution the defendants’ counsel certainly have the right to cross-examine the witness, not to see the witness beforehand, but only to cross-examine him. If on the other hand they are entitled to call that witness as their own, then they are entitled to see him beforehand, which is. . .

DR. KAUFFMANN: Yes, that is what I mean. But if I am allowed to speak to the witness beforehand, then the Court will understand that I should like to avoid as far as possible the presence of a representative of the Prosecution, since the reasons which might cause me to forego the calling of a witness would then be known to the Prosecution. I think everyone will understand that, and I also think it is fair.

THE PRESIDENT: I wanted to clarify what the difference in view between you and the Prosecution is. The Prosecution said that when the witness was called for the Prosecution the right of the defendants is only to cross-examine. Can you help us further with respect to this group, Sir David?

SIR DAVID MAXWELL-FYFE: Certainly. With regard to Eigruber, Number 8, he is no longer in Nuremberg, and he is being held as a probable defendant in the case concerning Mauthausen Camp, which will be dealt with by a military court, and therefore the Prosecution suggests that in these circumstances, as he is one of this group dealing with concentration camps in general and Mauthausen in particular, he ought to be dealt with by interrogatories.

Then with regard to Höttl, Number 9, he deals with two aspects of one point, that is, that Kaltenbrunner on his own initiative ordered the surrender of the concentration camp of Mauthausen and that he took steps to induce Himmler to release people from concentration camps. These seem to be general points that again might be conveniently dealt with by interrogatories.

And the same applies to the witness Von Eberstein, who deals with the point that Kaltenbrunner is alleged not to have given an order to destroy the concentration camp at Dachau, and that he did not give an order to evacuate Dachau. The Prosecution suggest that these ought also to be interrogatories.

With regard to the next witness, Höllriegel, the Prosecution make no objection to further cross-examination, and respectfully suggest to the Tribunal that he will be able to deal with the question of Mauthausen, which is one of the main questions that this whole group of witnesses is called to deal with.

DR. KAUFFMANN: [_Interposing._] Maybe I can say something so that. . .

THE PRESIDENT: [_To Sir David Maxwell-Fyfe._] Are you in agreement with Number 12, in the same group?

SIR DAVID MAXWELL-FYFE: Number 12 is not in the same group, because he deals with the question of Kaltenbrunner’s relations with Eichmann and with reports he received regarding the action against the Jews. We have no objection to this witness being called for cross-examination, as Dr. Kauffmann did not cross-examine him.

THE PRESIDENT: Yes, Dr. Kauffmann?

DR. KAUFFMANN: Concerning the witness Eigruber, Number 8, may I point out that this witness is here in Nuremberg. However, I agree that interrogatories be sent. The subject of the evidence itself seems to me decidedly relevant, for what Eigruber is supposed to testify is neither more nor less than the fact that the concentration camp at Mauthausen was directly supervised by Himmler through Pohl and the commander of the camp. Kaltenbrunner denies the possession of exact knowledge regarding Mauthausen. The witness Höttl. . .

THE PRESIDENT: You were in error in saying he was here in town. Sir David said he has been removed from Nuremberg for the purpose of trial by a military court. So perhaps you would not object to interrogatories in that case.

DR. KAUFFMANN: Yes. The witness Höttl is, in my opinion, an important witness. As we know, Kaltenbrunner is also accused of having participated in the conspiracy against the peace. Here I intend to prove that Kaltenbrunner conducted an active peace campaign ever since 1943. An important name in this connection is Mr. Dulles. He is, according to Kaltenbrunner, the late President Roosevelt’s confidential agent. Mr. Dulles was in Switzerland. According to Kaltenbrunner, meetings between them constantly took place with this object. I believe that this subject of evidence is relevant.

THE PRESIDENT: You mean that you want Dr. Höttl in person, not by way of interrogatories?

DR. KAUFFMANN: Yes, if I may ask for that.

THE PRESIDENT: The Tribunal will consider that.

DR. KAUFFMANN: Witness Number 10, General of the Police Von Eberstein, is called to prove that the statement of another witness by the name of Gerdes is untrue. The Tribunal will perhaps remember that the Prosecution submitted an affidavit by a man named Gerdes who was an important figure in Munich. He was the confidential agent of the former Gauleiter of Munich. In his affidavit, Gerdes accuses Kaltenbrunner of ordering the destruction of Dachau through bombing. Kaltenbrunner emphatically denies that.