dtufail/nuremberg-trials-corpus huggingface dataset:
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'....
DR. NELTE: 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 please, 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 cooperate 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 witness' being here or being brought here.
SIR DAVID MAXWELL: 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 Fuehrer state, and the importance of the Fuehrer order, and Document 2 is an order of the Fuehrer, 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 Fuehrer. 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 Fuehrer state (Fuehrerstaat) and Fuehrer order (Fuehrerbefehl). 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 Fuehrer 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 Fuehrer 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, Fuehrer 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 Fuehrer state and Fuehrer order, in connection with this Fuehrer 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.
DR. NELTE: 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. Am; 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 Fuehrer 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 (Fuehrerstaat).
THE PRESIDENT: Very well. Yes, Colonel Smirnov.