dtufail/nuremberg-trials-corpus huggingface dataset:
KEMPKA: No, I did not speak about it any more to Reichsleiter Bormann at that time. We had marching orders only to the effect that if we were successful we should report at Fehrbellin where there was a combat group which we were to join.
MR. DODD: You are the only man who has been able to testify that Hitler is dead and the only one who has been able to testify that Bormann is dead, is that so, so far as you know?
KEMPKA: I can state that Hitler is dead and that he died on 30 April in the afternoon between 2 and 3 o'clock.
MR. DODD: I know, but you did not see him die either, did you?
KEMPKA: No, I did not see him die.
MR. DODD: And you told the interrogators that you believe you carried his body out of the bunker and set it on fire. Are you not the man who has said that?
KEMPKA: I carried out Adolf Hitler's wife, and I saw Adolf Hitler himself wrapped in a blanket.
MR. DODD: Did you actually see Hitler?
KEMPKA: I did not see all of him. The blanket in which he was wrapped was rather short, and I only saw his legs hanging out.
MR. DODD: I do not think I will inquire any further, Mr. President.
DR. BERGOLD: I have no further questions either.
THE PRESIDENT: The witness can retire.
DR. BERGOLD: Gentlemen of the Tribunal, the witness Walkenhorst is also still present here. It appears to me that there is a misunderstanding between the High Tribunal and myself. I stated Saturday that I did not wish to call any more witnesses besides the witness Kempka, and I expressly waive the witness Walkenhorst.
THE PRESIDENT: What was he? What did you ask for him to prove in the first instance?
DR. BERGOLD: I had originally called him as a substitute...
THE PRESIDENT: We have got your application.
DR. BERGOLD: But after talking to witness Klopfer, whom I have also waived, I am also waiving the witness Walkenhorst because he does not appear to me to be competent enough to testify on what I wanted him to testify about. My entire presentation of evidence, therefore) is now completed, except for the two documents which the Tribunal have already granted me, namely, the decree about stopping the measures against the churches and Bormann's decree from the year 1944, with which he forbade members of the Chancellery to be members of the SD. Those two documents I have not yet received. When I have received them I shall submit them.
THE PRESIDENT: Very well. Dr. Servatius, you have some question or affidavit you wanted to get from this witness Walkenhorst, did you not?
DR. SERVATIUS: I have an affidavit from this witness Walkenhorst which deals briefly with the question of the telephone conversation which Sauckel had at that time about the evacuation of the Buchenwald Camp. He has been accused of having ordered the evacuation of the camp when the American army approached. Now this witness Walkenhorst has accidently been found and it turns out that oddly enough he was the man with whom Sauckel spoke. He has confirmed to me in an affidavit that Sauckel demanded that the camp should be surrendered in an orderly way. That is all I wanted to ask this witness. I can submit it here in the form of an affidavit.
THE PRESIDENT: Do the Prosecution want the man called or will the affidavit do?
DR. SERVATIUS: I am satisfied with handing over the affidavit.
COL. PHILLIMORE: My Lord, as far as the Prosecution are concerned, an affidavit would suffice.
THE PRESIDENT: Very well.
DR. SERVATIUS: Then I shall submit the affidavit and I will give the exhibit number together with my list.
THE PRESIDENT: Yes, there is one other matter to which I wish to draw the attention of defendants' counsel. The Tribunal have been informed as to the length of the speeches of certain of the defendants' counsel which have been placed before the Translation Division for translation, and in the case of the Defendant Keitel and in the case of the Defendant Jodl the speeches which have been put into the Translation Division seem to be very much longer than the Tribunal had anticipated and quite impossible to be spoken in 1 day. Would counsel for the Defendant Keitel explain to the Tribunal why that is and what steps he has taken to shorten his speech?
DR. NELTE: Mr. President, I have sent a letter to the Court today which I believe is not yet in the Tribunal's possession. In it I requested that in the case of the Defendant Keitel I should be permitted to exceed the regular length of, time, which had been limited to 1 day for the big cases. When, at the request of the Tribunal, I stated the time which my final speech would take, I had my manuscript completed. This manuscript would have taken about 7 hours. I gave that manuscript to the Translation Division in that form because it was no longer possible to alter it. I submitted the first part last Wednesday and then the second part on Saturday, morning. If the Tribunal, in accordance with its decision, fixes 1 day, that is, 51/~ hours of actual speech, as the maximum and is unwilling to depart from that ruling in any case, not even in the case of the Defendant Keitel, who has been particularly seriously implicated, then I shall be forced to eliminate certain passages from the manuscript and to submit them only in writing. I hope the Tribunal will also decide whether that is possible.
THE PRESIDENT: Dr. Nelte, the Tribunal takes note of the fact that when you were asked how long your speech would take, you said, I think, 7 hours.
DR. NELTE: Yes.
THE PRESIDENT: 7 hours. Well, according to the estimate which has been given to the Tribunal, the speech which you submitted for translation would take about 13 hours. That is nearly double as long as you yourself said, and it is almost exactly double the length of the speech which has been submitted for the Defendant Ribbentrop, whose case is almost as extensive if not quite as extensive; and it appears to the Tribunal to be out of all reason to put in a speech which will probably take nearly double the time that you yourself stated. The speech you put in is more than double the length of the speech which has been put in on behalf of the Defendant Goering.
DR. NELTE: Naturally, I am unable to know by what points of view the counsel for Reich Marshal Goering or Foreign Minister Von Ribbentrop are guided and governed. I can only be guided by my own views and sense of duty.
THE PRESIDENT: Perhaps that is a matter of comparison, it is true, but you said 7 hours yourself, and you now put in a speech which will probably take 13.
DR. NELTE: I believe, Mr. President, that I shall make that speech in 7 hours, if I have 7 hours speaking time.
THE PRESIDENT: Well, the Tribunal has given this matter a very full consideration, as you are aware; and they have said that every speech must be made in 1 day and that will take up some considerable time for the whole of the defendants to make their speeches.
DR. NELTE: Mr. President, I shall wait for your decision. If I am confined to 1 day, then I shall have to leave out certain parts from my manuscript. But in that case I should have to ask that the remainder be taken cognizance of by the Tribunal, because every thing that I have included in my manuscript is the minimum of what should be delivered on such a comprehensive case.
THE PRESIDENT: Dr. Nelte, we will consider that application for you to be allowed to put in the other passages in your speech; and we will let defendants' counsel know what our decision is upon that. Dr. Siemers, the Tribunal has now received a full report showing the immense trouble taken by the Secretariat to find or to try and find the witness Schulze, Otto Schulze, for you since you first asked for him in February of this year; and the Tribunal would like to know what steps you have taken in the meantime to try and find him.
DR. SIEMERS: I believe, Mr. President, that there was no need to find the witness because, actually, it was known that he was living in Hamburg-Blankenese and because, in my opinion, he is still in Hamburg-Blankenese; and I have given this address to the General Secretariat many times.
THE PRESIDENT: Well, you knew what the General Secretary's office were doing about the matter. You knew that they were unable to find him at the address. You knew that they had sent the interrogatories to Washington because they were told he had been taken over there, and we are told that you have been in Hamburg yourself.
DR. SIEMERS: That the interrogatory was sent to Washington is something which I have known only since last Friday, after my return from Hamburg. I personally did not anticipate that such a mistake or such a misunderstanding could arise. Unfortunately, I also do not know how it did arise. Far be it from me to make any kind of accusation. I have merely requested that if the document were received, then the Tribunal should agree to receive it in evidence later. Unfortunately, I cannot submit it today. I immediately informed the General Secretariat of the address once more; I do not know anything more than this address in Hamburg, either. In my opinion, Admiral Schulze is not in captivity. It is possible that during my absence some misunderstanding occurred, but I myself heard that only last Friday.
THE PRESIDENT: Well, I cannot understand why, during all these months that you have been here and have had full opportunity of seeing the General Secretary and have received all the assistance which you and all the other defendants' counsel have received from the General Secretariat, that you should not have helped the General Secretary better to find this witness. That is all. We will adjourn now. [The Tribunal adjourned until 4 July 1946 at 1000 hours.]
THE PRESIDENT: Dr. Sauter.
DR. SAUTER: If you please, Mr. President.
THE PRESIDENT: The Tribunal has received your letter of the 17th of June of this year, signed by the Defendant Walter Funk.
DR. SAUTER: Yes. ·?
THE PRESIDENT: The Tribunal proposes to take notice of that; and if you will read it, it will then become a part of the record. So if you will read it to us now.
DR. SAUTER: Mr. President, at the moment I do not have the letter with me.
THE PRESIDENT: You may have my copy, but that is in English. The Tribunal would wish you to do it at 2 o'clock, then-to read that letter.
DR. SAUTER: Thank you, Mr. President. ' THE PRESIDENT: The same observation applies to Dr. Exner's letter of the 23d of June 1946 on behalf of the Defendant Jodl; only the Tribunal thinks that that letter also should be signed by the defendant, and read by Dr. Exner at 2 o'clock. I call on Dr. Jahrreiss.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Mr. President and Gentlemen of the Tribunal, the main juridical and fundamental problem of this Trial concerns war as a function forbidden by international law; the breach of peace as treason perpetrated upon the world constitution. This problem dwarfs all other juridical questions. The four chief prosecutors have discussed the problem in their opening speeches, sometimes as the central theme of their presentation, sometimes as a fundamental matter, while indeed differing in their conceptions thereof. It is now up to the Defense to examine it. The body of Defense Counsel have asked me to conduct this examination. It is true that it is for each counsel to decide whether and to what extent he feels in a position to renounce, as a result of my arguments, his own presentation of the question of breach of the peace. However, I have reason to believe that counsel will avail themselves of this opportunity to such an extent that the intention of the Defense to contribute materially toward a technical simplification of the phase of the Trial which is now beginning, will be realized by my speech. I am concerned entirely with the juridical question, not with the appreciation of the evidence submitted during the past months. Also, I am dealing only with the problems of law as it is at present valid, not with the problem of such law as could or should be demanded in the name of ethics or of human progress. My task is purely one of research; research desires nothing but the truth, knowing full well that its goal can never be attained and that its path is therefore without end. I wish to thank the General Secretary of the Tribunal for having placed at my disposal documents of a decisive nature and very important literature. Without this chivalrous assistance it would not have been possible, under the conditions obtaining at present in Germany, to complete my work. The literature accessible to me originated predominantly in the United States.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Familiar as I am with the vast French and English literature on this subject, which I have studied during the last quarter of a century-I am, unfortunately, not conversant with the Russian language-I believe, however, that I can fairly say that no important concept has been overlooked, because in no other country of the world has the disc cession of our problem, which has become the great problem of humanity, been more comprehensive and' more profound than in the United States. This very fact has enabled me to forego the use of legal literature published in the former German sphere of control. In this way even the semblance of a pro dome line of argumentation will be avoided. Owing to the short time at my disposal for the purpose of this speech, and at the same time in view of the abundance and complexity of the problems with which I have to deal, it will not be possible for me to cite all the documents and quotations I am referring to. I shall present only a few sentences. Any other procedure would interrupt the train of argument for the listener. I shall therefore submit to the Tribunal the documents and literary references In the form of appendices to my juridical arguments. What I am saying can thus quickly be verified. The Charter threatens individuals with punishment for breaches of the peace between states. It would appear that the Tribunal is accepting the Charter as the unchallengeable foundation for all juridical considerations. This means that the Tribunal will not examine the question whether the Charter, as a whole or in parts, is open to juridical objections; yet such a question nevertheless continues to exist. If this is so, why, then, have any discussion at all on the main fundamental legal problems? The British chief prosecutor even made it the central theme of his long address to examine the relationship of the Charter, where our problem is concerned, to existing international law.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): He justified the necessity of his arguments by saying that it was the task of this Trial to serve humanity and that this task could be fulfilled by the Trial only if the Charter could hold its own before international law, that is, if punishment of individuals for breach of the peace between states was established in existing international law. It is, indeed, necessary to clarify whether certain stipulations of the Charter may have created new laws, and consequently laws with retroactive force. Such a clarification does not serve the purpose of facilitating the work of the historians. They will examine this, just as all the other findings in this Trial, according to the rules of free research; perhaps through many years of work and certainly without limiting the questions to be put and, if possible, on the basis of an ever greater wealth of documents and evidence. Such a clarification is indispensable, if only for the reason that the decision as to right and wrong depends, or may depend, thereupon, all the more so if the Charter is considered legally unassailable. Let us assume for the sake of argument that the Charter does not formulate criminal law which is already valid but creates new, and therefore retroactive, criminal law. What does this signify for the verdict? Must not this be of importance for the question of guilt? Possibly the retroactive law which, for instance, penalizes aggressive war had not yet become fixed or even conceived in the conscience of humanity at the time when the act was committed. In that case the defendant cannot be guilty, either before himself or before others, in the sense that he was aware of the illegality of his behavior. Possibly, on the other hand, the retroactive law was promulgated at a time when a fresh conscience was just beginning to take shape, although not yet clear or universal. It is then quite possible for the defendant to be not guilty in the sense that he was aware of the wrongfulness of his commissions and omissions.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): From the point of view of the European continental conception of penal law, the fact that a person was not aware of doing wrong is certainly a point which the Tribunal must not overlook. Now the question as to whether the penal law contained in the Charter is ex post facto penal law does not present any difficulty as long as the stipulations of the Charter are unequivocal and the prescriptions of international law as applying to date are uncontested. But what if we have regulations capable of different interpretations before us or if the concepts of international law are the subject of controversy? Let us take the first: A stipulation of the Charter is ambiguous and therefore requires interpretation. According to one justifiable interpretation the stipulation appears to be an en post facto law; according to another, which can be equally well justified, it does not. Let us take the second: The regulation is clear or has been clarified by interpretation of the Court, but experts on international law are of different opinions as to the legal position applying to date; it is not certain whether we are not concerned with an en post facto law. In both cases it is relevant whether the defendant was conscious of the wrongfulness of his behavior. I intend to demonstrate how important these considerations are in this Trial, and shall now begin the examination. The starting points of the British and French chief prosecutors are fundamentally different. The British chief prosecutor argues as follows, if I understood him correctly: First, the unrestricted right of states to wage war was abolished in part by the League of Nations Covenant, later as a general principle by the Kellogg-Briand Pact, which continues to be the nucleus of world peace order to this very day. War, thus prohibited, is a punishable violation of law within and toward the community of nations, and any individual who has acted in a responsible capacity is punishable.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Secondly, the indictment of individuals for breach of the peace, although novel, not only represents a moral necessity, but is in fact long overdue in the evolution of law; it is quite simply the logical result of the new legal position. Only in outward appearance does the Charter create new law. And if I understood the British chief prosecutor correctly, he is asserting that since the conclusion of the Pact of Paris there exists a clear legal order based on the entire world's uniform conviction as to what is right. Since 1927 the United States have negotiated first with France, then with the remaining Great Powers, with the exception of the Soviet Union, and also with some of the smaller powers concerning the conclusion of a treaty intended to abolish vicar. Secretary of State Kellogg stated (in a note to the French Ambassador, 27 February 1928) with memorable impressiveness what the Government in Washington were striving for, namely: The powers should renounce war as an instrument of national politics, waiving all legal definitions and acting from a practical point of view, plainly, simply, and unambiguously, without qualifications or reservations.(1) Otherwise the object desired would not be attained: To abolish war as an institution, that is, as an institution of international law.(2) After the negotiations had been concluded, Aristide Briand, the other of the two statesmen from whose initiative springs that pact which in Germany is often called the "Pact to Outlaw War," declared, when it was signed in Paris: "Formerly deemed a divine right and remaining in international law as a prerogative of sovereignty, such a war has now at last been legally stripped of that which constituted its greatest danger: its legitimacy.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): Branded henceforth as illegal, it is truly outlawed by agreement...." (3) According to the conception of both leading statesmen, the Paris Pact amounted to a change of the world order at its very roots, if only all, or almost all, nations of the world-and particularly all the great powers-signed the pact or adhered to it later on, which did actually happen. The change was to be based on the following conception: Up to the time of the Kellogg-Briand Pact, war had been an institution of international law. After the Kellogg-Briand Pact, war was high treason against the order created by international law. Many politicians and scholars all over the world shared this conception. It is the definite basic conception of that unique commentary on the League of Nations Covenant by which Jean Ray, far beyond the borders of France, stirred the hearts of all practical and' theoretical proponents of the idea of preventing war.(4) It is also the basic conception of the Indictment at Nuremberg. (1) Note of Secretary of State Kellogg to the French ambassador of 27 February 1928. (2) Note of the United States Government to the Governments of Great Britain, Germany, Italy, and Japan of 13 April 1928. (3) "Consideree jadis comma le droit divin et demeuree dans l'ethique internationale comme une prerogative de la souverainete, une pareille guerre est enfin destituee juridiquement de ce qui constituait son plus grave danger: sa legitimite. Frappee desormais d'illegalite, elle est soumise au regime conventionnel d'une veritable mise hors la lot...." The speech by the French Foreign Minister is reproduced in The Department of State; T r e a t y f o r t h e R e n u n e i a t i o n of War. United States Government Printing Office; Page 309. (4) Commentatre'du Paete de la Societe des Nations selon la politique et la jurisprudence des organes de la Societe. Paris 1930.
PROFESSOR DR. HERMANN JAHRREISS (Counsel for Defendant Jodl): (See especially Page 73 et sequentes) Further in the supplements for 1931-35, ler Supplement au Commentaire du Paete (1931) Page 13 et sequentes; 2eme Supplement (1932) Page 17 et sequentes, 3eme Supplement (1933) Pages 18, 39; 4eme Supplement (1935) Pages 19, 99. Diplomacy and the doctrine of international law found their way back into their old tracks after the first World War, after a momentary shock from which they recovered with remarkable rapidity. This fact horrified all those who were anxious to see the conclusions-all the conclusions-drawn from the catastrophe. Mankind had a "grand vision of world peace" then, as Senator Bruce called it when the Pact of Paris was before the Senate for ratification(5) I know how much the personality and the achievements of Woodrow Wilson are a subject of dispute. But the more detachment we achieve, the clearer it becomes that he-by making fortunate use of his own preparatory work and of that of others(6)- finally conceived and presented to the humanity of the time an entirely brilliant train of thought which is as right today as it was then, and which can best be condensed as follows: It is necessary to start afresh. The tragic chain of wars and mere armistices termed peace must be broken. Sometime humanity must have the insight and the will to pass from war to real peace, that is, to peace which is good in its essence, founded on existing legal principles, without regard to victory or defeat; and this peace, which is good in its essence, must be maintained-and maintained in good condition-by an organized union of states. These aims can only be achieved if the most frequent causes of war are eliminated, namely excessive armaments, secret treaties, and the consecration-detrimental to life-of the status quo as a result of lack of insight on the part of the possessor of the moment. Humanity did not follow this path. And it is not to be wondered at that among those who fought against the instruments of Versailles, St.