Archive/File: imt/tgmwc/tgmwc-07/tgmwc-07-68.06
Last-Modified: 1999/11/20

DR. NELTE (Counsel for the defendant Keitel): The Tribunal
will recall that the question of hearing the witness Major-
General Westhoff has already been under discussion here once
before. The prosecution at the time - I have not the
document here now - submitted a report regarding the
interrogation of Major-General Westhoff, but the Tribunal,
on my objection, refused to have this document read in
Court.

I do not know whether, as the prosecutor is now speaking of
the testimony of Major-General Westhoff, it concerns the
same document which the Tribunal previously refused to admit
or whether it concerns a new document which I do not know
as yet. I draw your attention to the fact that General
Westhoff is here in prison; and could be called as a witness
on this question.

COLONEL SMIRNOV: Permit me to say, Mr. President . . . .

THE PRESIDENT: Colonel Smirnov, you have heard what Dr.
Nelte said. As I understood it - I am not sure if I got the
name right - but he referred to General Westhoff's evidence
which had been tendered and which had been rejected because
the Tribunal thought that if that evidence was to be given,
General Westhoff ought to be called. Is it correct to say
that the document you are putting in has got nothing to do
with General Westhoff at all?

                                                  [Page 328]

COLONEL SMIRNOV: Westhoff is only mentioned in one part of
the official British report.

THE PRESIDENT: But it is not a report made by General
Westhoff, is it?

COLONEL SMIRNOV: That is perfectly correct. I am now
submitting an official British report to the Tribunal. Only
one passage in the text of the official British report
mentions Major-General Westhoff, and has nothing to do with
the interrogation of Major-General Westhoff which will be
brought up later on.

MR. G. D. ROBERTS: My Lord, perhaps I might assist in this
matter - because I am partly responsible for that report -
with the kind indulgence of my learned friend, my Russian
colleague.

My Lord, the document which is now about to be read is a
British official government report under Article 21 of the
Charter and the original is properly so certified. It is
quite true that General Westhoff's name is mentioned in the
report, but it is quite a different document to the one
which my French colleagues tendered and which the Tribunal
rejected in evidence. It is an official government report.

COLONEL SMIRNOV: That is just what I have been saying, your
Honour. This is an official report of the British
Government.

THE PRESIDENT: One moment, Colonel Smirnov. Mr. Roberts - I
just wish to speak to Mr. Roberts, Dr. Nelte. - Why do you
say that it is an official Government report under Article
21 of the Charter?

MR. ROBERTS: Because the original has been handed in and it
has been certified by Brigadier-General Chapcott of the
Military Department of the Judge Advocate General's Office.
I think you have the original.

THE PRESIDENT: Yes, I have the original. Mr. Roberts, to
whom was it made, this report?

MR. ROBERTS: My Lord, it was made in connection with the
collection of evidence for this Tribunal. As your Lordship
sees, it is headed "German War Crimes.  Report on the
Responsibility for the Killing of 50 RAF Officers", and then
it states the sources on which the material has been based.
Your Lordship will see on the last page of the report the
appendix: "Material upon which the foregoing Report is
based:

  1. Proceedings of Court of Inquiry held at Sagan. . . .
  
  2. Statements of the following witnesses . . . .
  
  3. Statements from the following Germans . . . .
  
  4. A photostat copy of the official list of dead
  transmitted by the German Foreign Office to the Swiss
  Legation. . . .
  
  S. Report of the Representative of the Protecting Power
  on his visit to Stalag Luft III on 5 June, 1944."

The Tribunal (MR. BIDDLE): Mr. Roberts, was this made for
the Tribunal or for the War Crimes Commission?

MR. ROBERTS: It was made for this trial.

MR. BIDDLE: Made for this trial?

MR. ROBERTS: For this trial.

MR. BIDDLE: By a general in the army?

MR. ROBERTS: Yes, my Lord.

MR. BIDDLE: And he reported to whom?

MR. ROBERTS: My Lord, it was then submitted to the British
Delegation for this trial.

MR. BIDDLE: You mean the prosecution?

MR. ROBERTS: Yes, my Lord.

MR. BIDDLE: So this is the report of a British general made
to the British prosecution?

                                                  [Page 329]

MR. ROBERTS: My Lord, with respect, I would not accept the
phrase "report of a British general." I would say "a report
of a Government department ". It is signed and certified by
a British general.

MR. BIDDLE: Yes.

MR. ROBERTS: My Lord, I submit most respectfully that my
Lords may exactly read in Article 21 : "The Tribunal shall
take judicial notice of official governmental documents and
reports of the United Nations".

I submit that this is clearly an official governmental
document, a report made by a department of the Army in
London, a government department, for the purpose of this
trial.

MR. BIDDLE: Then any evidence that was collected and sent in
by the Government will be official evidence.

MR. ROBERTS:  I think that is so under Article 21, that is,
as I read it and as I respectfully submit to your Lordship.

THE PRESIDENT: Do you wish to add anything, Dr. Nelte?

DR. NELTE: Yes, I should like to make a few further remarks.

It is in other words, a report which was drawn up on the
basis of testimony by witnesses, among whom, as I
understand, was also Major-General Westhoff. I do not
challenge the official character of this document, or that
you can and must accept it as evidence under the terms of
the Charter. But it seems to me that another question is
involved here, namely the question of superior evidence. If
a witness who is at the disposal of the Court could be
eliminated by including his testimony in an official report,
then such procedure would not comply with the Tribunal's
desire that only the best method to discover the truth
should be used.

The witness is at your disposal; the report is not a literal
account of what he said, but simply a conclusion in which
the accuracy is subject o doubt, whereas it need not remain
in doubt. But I believe the defence should also have an
opportunity in their turn, to hear and examine a witness, if
it is as easily possible as in this case.

THE PRESIDENT: Dr. Nelte, supposing that one of the
witnesses who had been examined by one of the committees set
up by the Government had made a report not to the Government
at all, but an affidavit or something of that sort, and that
had been offered to the Court and the witness had been
available, the Court might very possibly have refused to
entertain that affidavit or report. If, however, that report
was the foundation for a government report or for a
government official document, then by Article 21, the
Tribunal is directed to entertain such a report.

Therefore, the fact that the Tribunal has already said that
they would not accept some private affidavit or report of
General Westhoff unless General Westhoff were called, is not
relevant at all. It is a question whether they ought to
entertain a report which you admit comes within Article 21.

DR. NELTE: I do not doubt that your Lordship's view is
correct. I should merely like to bring up the question
whether, when one has two different types of evidence,
namely, the report and the possibility of examining a
witness, it would not be preferable to consider questioning
the witness, not in order to correct the official report,
but in order to clarify what the witness actually said,
because from, the report we cannot learn this.

This question is, as you will understand, of tremendous
importance for the defendant Keitel, who allegedly issued an
order to shoot the escaped airmen, and if a witness is
available who could clarify this question, this witness
should be heard instead of an official report which actually
contains an evaluation.

THE PRESIDENT: But in the first place this report does not
proceed only or even substantially upon the evidence of
General Westhoff; there are a number

                                                  [Page 330]

of other origins of the report, and the second thing is that
the whole object of Article 21 was to make government
reports admissible and not to necessitate the calling of the
witnesses upon whose evidence they proceeded.

DR. NELTE: The other witnesses mentioned in the report were
interrogated on other matters in connection with the
executions themselves; but on the question of whether Keitel
actually issued the order for execution General Westhoff is
the only one mentioned in the report who has anything to
say.

THE PRESIDENT: Would you repeat that?

DR. NELTE: I said, in that report the witnesses are also
mentioned but, as far as I know, they did not make a
statement on the question of whether or not Keitel issued an
order to shoot the R.A.F. officers. Westhoff was the only
one among the witnesses listed who could and did make a
statement on that question.

THE PRESIDENT: Do you wish to say anything further in
argument upon the admissibility of the document?

DR. NELTE: No.

THE PRESIDENT: Colonel Smimov.

COLONEL SMIRNOV: It appears to me, Mr. President, that that
part of the document which refers to Major-General Westhoff
consists of merely one paragraph - namely paragraph 7 of the
document in question. This part deals with the initial stage
of the perpetration of the crime, namely with the conception
and planning of the crime. The document also speaks of other
stages in the commission of this crime. Moreover, it is an
official document, presented according to Article 21 of the
Charter. It seems to me that I have thereby said all that is
necessary, Mr. President.

THE PRESIDENT: Do you wish to say anything further, Dr.
Nelte?

DR. NELTE: No, thank you. I merely ask the Court to decide;
I may have to request that General Westhoff be admitted as a
witness to testify that the conclusion drawn in this report
does not correspond with what he said.

DR. KUBOSCHOK (Counsel for the Reich Cabinet): May I make a
few remarks, a few legal remarks regarding Article 21 of the
Charter?

In the criminal procedure of every country we find the
primary principle of oral evidence. Only if this is not
available, is that part of the proceedings transferred
outside the court. In most codes of criminal procedure of
the various countries we have a provision similar to that of
Article 21 of the Charter that previous decisions of a court
should not be re-examined in new proceedings, but that such
decisions should be binding.

In this trial the Charter extends this provision to cases
which obviously, because of their extent, could not be
further discussed here. Therefore the decision that
government reports should be considered as evidence is
clearly laid down in paragraph 21. It is clear to every
jurist that this provision in itself is, in a way, a flaw in
the proceedings because through it certain rights are lost
to the defendants. On the other hand, one cannot, of course,
ignore the argument that there are matters which, because of
their extent, cannot be practically discussed in a trial in
which the time is limited. Article 21 of the Charter,
therefore, gave the Tribunal the possibility of accepting
such reports as valid evidence. But this provision is not
compulsory for the Tribunal. So far as I can see from the
German text before me, it reads that the Tribunal should
accept these reports; but it does not say that the Tribunal
must do so. Therefore it is in every case left to the
discretion of the Tribunal whether the nature of the report
makes it advisable to accept such a report in evidence.

We now have here a rather striking case, which, in my
opinion, clearly shows that the Tribunal can make use of its
discretion and reject this document. The prosecution has
taken the position that this subject of evidence could be
taken

                                                  [Page 331]

care of by a witness. The examination of the witness would
have provided the defence with the right of cross-
examination. Since, for tactical reasons inherent in the
nature of the trial, the witness will not be called, the
subsequent transfer of his evidence into a government report
means curtailing the right of the defendant to cross-
examination, and is thus contrary to the article of the
Charter in question.

DR. STAHMER (Counsel for the defendant Goering): It was not
until to-day that the accusation was made that Goering knew
of or ordered the execution of these officers. I could not
take this fact into consideration when I recently offered my
evidence because I did not know of it, and I must,
therefore, reserve the right to call additional witnesses on
this question.

COLONEL SMIRNOV: May I say a few words, Mr. President?

THE PRESIDENT: On the question of the admissibility?

COLONEL SMIRNOV: Yes, Mr. President.

THE PRESIDENT: Yes.

COLONEL SMIRNOV: I consider the arguments put forward by the
second defence counsel as entirely incomprehensible from a
legal point of view, since he introduces a qualitative
distinction into the legal nature of the evidence. According
to this counsel, Article 21 of the Charter only deals with
evidence of crimes committed on an enormous scale, but does
not apply to lesser ones. To me, viewing the matter from a
legal point of view, this argumentation appears rotten from
the root upwards and I consider that Article 21 of the
Charter applies, in toto, to any crime committed by the
Hitlerites, whether they be committed on a very large or on
a slightly smaller scale. That is all I wish to say, Mr.
Presidents.

THE PRESIDENT: The Tribunal will adjourn.

(A recess was taken.)

THE PRESIDENT: Mr. Roberts, the Tribunal would like to know
where these appendices are which are referred to in
paragraph 9 of the report.

MR. ROBERTS: I think they are with the Tribunal now, in the
charge of the officer of the Court.

THE PRESIDENT: They are in the Court now? You can undertake,
I suppose, to produce them all, if any of them are not
there?

MR. ROBERTS: My Lord, most certainly. I understood that the
whole of the material is not necessary, but I believe it is
all there, in the original, of course.

THE PRESIDENT: Yes, then, the Tribunal decides that the
document will be admitted, and the Tribunal will summon, if
he is available - and we think he is - General Westhoff, and
that will be, in effect, granting the defendants'
application to call General Westhoff, and also to call the
officer mentioned in paragraph 3 (b) of the appendix, whose
surname appears to be Wieland. I do not know whether you can
say where he is.

MR. ROBERTS: I will make inquiries and I will undertake to
the Tribunal that we will do everything in our power to get
the witnesses that are required for the defence, namely,
General Westhoff, who is in Nuremberg, I understand, and
General Wieland. I am not certain where he is, but I will
find out.

THE PRESIDENT: Very well.

DR. KRAUS (Counsel for the defendant Schacht): Mr.
President, you made a remark during the session about which
defendants' counsel are very much concerned. If we have
understood this remark correctly, it was that private
affidavits would not be accepted by the Tribunal.
Considering the fact that we

                                                  [Page 332]
                                                            

must offer our evidence now, this question of affidavits is
very urgent. That is why I am forced to clarify that
question. The defence ....

THE PRESIDENT: Dr. Kraus, I do not think I said that
affidavits could not be admitted. What I said was, it might
be that affidavits would not be admitted if the witness was
available to give direct evidence. That is the rule which we
have enforced throughout the trial.

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