Archive/File: imt/tgmwc/tgmwc-05/tgmwc-05-43.01
Last-Modified: 1999/10/05

                                                  [Page 151]

FORTY-THIRD DAY

FRIDAY, 25TH JANUARY, 1946

COURT OFFICER: Your Honours, Defendants Kaltenbrunner and
Streicher will be absent from this morning's session.

M. DUBOST: Yesterday I was reading from an official French
document, which appears in your document book. - permit me
to remind you of it - under the title "Report of the
Ministry of Prisoners of War and Deportees.". It concerned
the seizure by the Germans of Jewish children in France, who
were taken from private houses or public institutions where
they had been placed.

With your permission I will come back to a statement which I
had previously made, concerning the execution of orders
given by the German General Staff with the approval of the
Reich Minister for Foreign Affairs, to arrest all French
generals and, in reprisal, to arrest as well all the
families of these generals who might be dissentients, in
other words who were on the side of our Allies.

In accordance with Article 21 of the Charter, the Tribunal
will not require facts of public knowledge to be proved. In
the enormous amount of facts which we submit to you there
are many which are known but not of public knowledge. They
are few, but there are certain facts, nevertheless, which
are both known and also of public knowledge in all
countries. There is the famous case of the deportation of
the family of General Giraud, and I shall allow myself to
recall to the Tribunal the six principal points concerning
this deportation. First: we all remember having learned
through the Allied radio that Madame Giraud, wife of General
Giraud ...

THE PRESIDENT: What is it that you are going to ask us to
take judicial notice of with reference to the deportation of
General Giraud's family?.

M. DUBOST: I have to ask the Tribunal, Mr. President, to
apply as far as these facts are concerned, to Article 21 of
the Charter, namely, the provision specifying that the
Tribunal will not require facts to be proved which are of
public knowledge.

Second: I request the Tribunal to hear my statement of these
facts which we consider to be of public knowledge, for they
are known not only in France but in America, as the American
Army learned something of these events.

THE PRESIDENT: The words of Article 21 are not "of public
knowledge" but "of common knowledge". It is not quite the
same thing.

M. DUBOST: I have before me the French translation of the
Charter. I am interpreting according to the French
translation: "The Tribunal will not require that facts of
public knowledge ("notoriete publique") be proved."

We interpret these words thus: it is not necessary to bring
documentary or testifying proof of facts universally known.

THE PRESIDENT: You say "universally known," but supposing,
for instance, the members of the Tribunal did not know the
facts? How could it then be taken that they were of common
knowledge? The members of the Tribunal may be ignorant of
the facts. It is difficult for them to take cognisance of
the facts if they do not know them.

M. DUBOST: It is a question of fact which will be decided by
the Tribunal. The Tribunal will say whether it does or does
not know that these six points which I shall recall to it
are correct.

THE PRESIDENT: The Tribunal will retire.

(A recess was taken)

                                                  [Page 152]

THE PRESIDENT : The Tribunal is of the opinion that the
facts with reference to General Giraud's deportation and the
deportation of his family, although they are very probably
matters of common knowledge or of public knowledge within
France, cannot be said to be of common knowledge or of
public knowledge within the meaning of Article 21, which
applies generally to the world.

Of course, if the French Prosecution have governmental
documents or reports from France which state the facts with
reference to the deportation of General Giraud, the matter
assumes a different aspect, and if there are such documents
the Tribunal will, of course, consider them.

M. DUBOST: I must bring proof that the crimes committed
individually by the leaders of the German police in each
city and in each region of the occupied authorities, the
will of the German Government, a fact which permits us to
charge all the defendants one by one. I shall not be able to
prove this by submitting documents alone. That you may
consider it a fact, it is necessary that you accept as valid
the evidence which I am about to read. This evidence was
collected by the American and French Armies, and the French
Service for Investigation of War Crimes. The Tribunal will
excuse me if I am obliged to read numerous documents.This
systematic will can only be proved by showing that
everywhere and in every case the German police used the same
methods concerning patriots whom they interned
or detained.

Internment or imprisonment in France was in civilian prisons
which the Germans had seized, or in certain sections of
French prisons which the Germans had requisitioned, which
they occupied, and which all French officials were forbidden
to enter. The prisoners in all these penitentiaries were
subject to the same regime. We shall prove this by reading
to you depositions of prisoners from each of these German
penal institutions in France or the Western occupied
countries. This regime was absolutely inhuman. It allowed
the prisoners to survive only under the most precarious
conditions.

In Lyons, at Fort Montluc, the women received as their only
food a cup of herb tea at 7 o'clock in the morning and a
spoonful of soup with a small piece of bread at 5 o'clock in
the evening. This is established by Document 555-F, which
you will find the eleventh in your document book, which we
submit as Exhibit RF 302.

THE PRESIDENT: One moment. I have not found the document.

M. DUBOST: The eleventh in the document book, Document 555-
F, first page of the document.

THE PRESIDENT : Yes, M. Dubost, but you see, these document
books are not paged or tabbed in any way. Yes, we have it
now.

M. DUBOST: The first page of this document, second
paragraph, is an analysis of the depositions which were
received. It is sufficient to refer to this analysis. I
shall take some lines from the following deposition. The
witness declares that at their arrival at Fort Montluc,

   "the prisoners who were taken in the round-up by the
   Gestapo on 20 September 1943, were stripped of all their
   property.
   
   They were treated in a brutal fashion. The food rations
   were quite inadequate. The modesty of the women was not
   respected."

The same deposition, dated 9 October 1944, at Saint
Gingolph: This deposition refers to the arrests made at
Saint Gingolph, which were carried out in the month of
September 1943. The witness relates on page 2, fifth
paragraph, at the top of the page:

"After returning from the interrogation the young boys had
their toes burned by means of cotton-wool which had been
dipped in petrol; others had their calves burned by the
flames of a blow-lamp ... others were bitten by police
dogs..."

                                                  [Page 153]

DR. MERKEL (Counsel for the Gestapo): The French Prosecution
submits here documents which do not represent sworn
affidavits, and confirmations which do not show who took
them. As a matter of principle I have to protest against
these mere depositions of persons who did not take an oath,
and which do not represent sworn affidavits, being admitted
as proof at this trial.

THE PRESIDENT: Is that all you have to say?

DR. MERKEL: Yes, Sir.

THE PRESIDENT: We will hear M. Dubost's answer.

M. DUBOST: Mr. President, the Charter, which goes so far as
to admit evidence of public knowledge, has not fixed any
rules as to the manner in which this evidence, which shall
be submitted to you as proof, shall be presented. The
Charter leaves the Tribunal free to decide whether this or
that method of investigation is acceptable, or whether the
way in which these investigations have been carried out is
regular, if it conforms to the customs and usages of my
country. As a matter of fact, it is certain that all
official records of the police and gendarmerie may be
accepted without the witnesses being under oath. Moreover,
according to the provisions of the Charter, all
investigations for the discovery of war crimes should be
deemed to have probative value. Article 21 says:

   "The Tribunal shall not require proof of facts of common
   knowledge but shall take judicial notice thereof. It
   shall also take judicial notice of official governmental
   documents and reports of the United Nations, including
   the acts and documents of the committees set up in the
   various Allied countries for the investigation of war
   crimes, and the records and findings of military or
   other Tribunals of any of the United Nations."

THE PRESIDENT: M. Dubost, is the document that you are
reading to us either an official government document or a
report, or is it an act or document of a committee set up in
France?

M. DUBOST: This report, Mr. President, comes from the Surete
Nationale. You can establish that by examining the second
sheet of the copy which you have in your hand, at the top to
the left: Direction Generale de la Surete Nationale.
Commissariat Special de Saint Gingolph. Record of witnesses'
testimony.

THE PRESIDENT: May we see the original document?

M. DUBOST: Certainly. This document was submitted to the
Secretary of the Tribunal. The Secretary has only to bring
that document to you.

THE PRESIDENT: Very well. Is this a certified copy?

M. DUBOST: It is a copy certified by the Director of the
Cabinet of the Ministry of Justice.

THE PRESIDENT: M. Dubost, I am told that the French
prosecutors have all the original documents and are not
depositing them in the way it is done by the other
prosecutors. Is that so?

M. DUBOST: The French prosecutors submitted the originals of
yesterday's session, and they were handed over this morning
to M. Martin.

THE PRESIDENT: Well, we wish to see the original document.
We understand it is in the hands of the French Secretary. We
should like to see it.

(A document was submitted to the Tribunal)

M. DUBOST: I have sent for it, Mr. President. This document
is a certified copy of the original, which is preserved in
the archives of the Service for Inquiry into Enemy War
Crimes. This certification was made, on the one hand, by the
French Delegate of the Prosecution - you will see the
signature of M. de Menthon on the document you have - on the
other, by the Director of the Cabinet of the Minister of
Justice, M. Zambeaux, with the official seal of the French
Ministry of Justice.

THE PRESIDENT: It does appear to be a governmental document.
It is the

                                                  [Page 154]

document of a committee set up by France for the
investigation of war crimes, is it not?

M. DUBOST: Mr. President, it is a document which comes from
the Office of National Security (Direction Generale de la
Surete Nationale), which was set up in connection with an
investigation of War Crimes, as prescribed by our French
Office for the Investigation of War Crimes.

The original remained in Paris at the War Crimes Office but
the certified copy which you have was signed by the Director
of the Cabinet of the Ministry of Justice in Paris.

THE PRESIDENT: Yes, M. Dubost, I was not asking whether it
was a true copy or not; the question I was asking was
whether or not it was, within Article 21, either a
governmental document or a report of the United Nations, or
an act or a document of a committee set up in France for the
investigation of war crimes and I was asking whether it is,
and it appears to be so. It is, is it not?

M. DUBOST: Yes, Sir.

THE PRESIDENT: Do you wish to add anything to what you have
said?

M. DUBOST: No, I have nothing to add.

THE PRESIDENT: (to Dr. Merkel) Now you may speak, Sir.

DR. MERKEL: I should only like to stress briefly that these
reports which are presented here are not reports of an
official government agency, and cannot be considered as
governmental reports. Rather, they are only minutes which
have been taken in police offices, and thus can in no way be
authentic declarations of a government or of an
investigating committee. I emphasise once more that these
declarations, which have certainly been taken, partially at
least, in petty police offices, have not been made under
oath, and do not represent sworn statements, and I have to
protest firmly against their being considered as evidence
here.

THE PRESIDENT: Do you wish to add anything?

DR. MERKEL: No.

THE PRESIDENT: Who is M. Binaud? J. Binaud?

M. DUBOST: He is the Police Inspector of the Special Police,
who was attached to the Special Commissariat of Saint
Gingolph.

I must correct an error made by the defence counsel, who
said this was a petty police office. This was a frontier
post. The Special Commissariats at the frontier post are all
important offices even though they are located in small
towns. I think it is similar in all countries.

THE PRESIDENT: Well, M. Dubost, you understand what the
problem is? It is a question of the interpretation of
Article 21.

M. DUBOST: I understand.

THE PRESIDENT: The Tribunal requires your assistance upon
that interpretation, as to whether this document does come
under the terms of Article 21. If you have anything to say
upon that subject we will be glad to hear it.

M. DUBOST: Mr. President, it seems to me impossible that the
Tribunal should rule out this and similar documents which I
am going to present, for all these documents bear, for
authentication, not only the signature of the French
representative at this Tribunal, but that of the Delegate of
the Minister of Justice from the War Crimes Commission as
well. Examine the imprint beside, the second signature. It
is the seal.

THE PRESIDENT: Do not go too fast; tell us where the
signatures are.

M. DUBOST: (Indicates on document) Here, your Honours, is a
note of the release of this document to the French
Prosecutor as an element of proof by the Service for
Investigation of War Crimes, and below is the signature of
the Director of the Cabinet of the French Minister of
Justice, the Keeper of the Seals, and, in addition, over
this signature, is the imprint of the Minister of Justice.
You may read: Enemy War Crimes Commission.

                                                  [Page 155]

THE PRESIDENT: Is this the substance of the matter, that
this was an inquiry by the police into these facts, and that
police inquiry was recorded, and then the Minister of
Justice, for the purposes of this trial, adopted that police
report? Is that the substance of it?

M. DUBOST: That is correct, Mr. President. I think that we
agree. The Service for Investigation of War Crimes in France
is directly attached to the Ministry of Justice. It carries
out investigations. These investigations are made by the
police authorities, such as M. Binaud, Inspector of Special
Police, attached to the Special Commissariat of Saint
Gingolph.

THE PRESIDENT: The Tribunal would like to know when the
Service for Investigation of War Crimes was established.

M. DUBOST: I cannot give you the exact date from memory, but
this Service was set up in France the day after the
liberation. It began to function in October 1944.

THE PRESIDENT: Was it established after the police report
was made?

M. DUBOST: In the month of September, about the same time.

THE PRESIDENT: September of what year?

M. DUBOST: In September, 1944, this Service for
Investigation of War Crimes in France was established, and
this Service it was which gave orders.

THE PRESIDENT: Then the police inquiry was held under the
Service? You see, the police report is dated 9 October, and
therefore the police report appears to have been made after
the Service had been set up. Is that right?

M. DUBOST: You have the evidence, Mr. President. If you look
at the top of the second page at the left, it shows the
beginning of the record and you read: "Purpose:
Investigation of atrocities committed by Germans against
civilian population."

These investigations were prescribed by the Service for
Investigation of War Crimes.

THE PRESIDENT: Yes. That would appear to be so if the
Service was established in September, and this police
investigation is dated 9 October.

The Tribunal will adjourn for consideration of this
question.

(A recess was taken)

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