Archive/File: imt/tgmwc/tgmwc-09/tgmwc-09-88.02
Last-Modified: 1999/12/7

SIR DAVID MAXWELL FYFE: I did not catch that. I am sorry, my
Lord, I should have spoken earlier. I gather that these
questions are directed to the Hermann Goering Division. The
defendant never dealt with that point when he was being
examined in chief; and, therefore, I never dealt with it in
cross-examination, because the point had not been raised. It
is, therefore, my submission that it is quite inadmissible
for the matter to be raised in re-examination.

THE PRESIDENT: You must remember, Sir David, that the
practice in foreign countries is not the same as the
practice in the United States and in England; and although
it is perfectly true that Dr. Stahmer, according to the
rules of England at any rate, would not be able to raise
this point in re-examination, we are directed by the Charter
not to deal technically with any question of evidence. It
may be you will have to ask him some questions thereafter in
cross-examination, although I hope that will not be
necessary, in view of the evidence of the witness
Kesselring.

SIR DAVID MAXWELL FYFE: I considered that point, but I only
wanted to make it clear that the prosecution has not dealt
with this point at all, because it had not been raised
previously.

                                                  [Page 337]

THE PRESIDENT: No: neither in the examination nor in the
cross-examination.

SIR DAVID MAXWELL FYFE: Nor in the cross-examination.THE
PRESIDENT: Sir David, I had already noticed the point that
the question had not been raised in the evidence of Hermann
Goering.DR. STAHMER: May I, in explanation, assert that I
received the document only yesterday and consequently could
not take any attitude earlier toward this question, which
has been dealt with already by the prosecution.

THE PRESIDENT: But, if my recollection is correct, the
witness Field-Marshal Kesselring raised this very point
himself, and therefore the point was obvious and could have
been raised in examination in chief, in which case it could
have been dealt with by the defendant Goering. It does not
depend upon any particular document; it depends upon the
evidence of the Field-Marshal Kesselring, who said that he
was by-passed - I think the word as it was translated was
that he was by-passed - between the Division Hermann Goering
and the defendant Goering, although the Division Hermann
Goering was under his command. So it has nothing to do with
any document.

DR. STAHMER: May the witness continue, Mr. President?

THE PRESIDENT: Yes.

THE WITNESS: The division was under my command only as far
as personnel, commissioning of officers, and equipment was
concerned but not as to its employment. I did not receive
reports daily, but at intervals, regarding events, losses,
replacements. That, on the whole, was all the connection I
had with that division. I could not give any orders for its
employment, since it was under the command of parts of the
Army.

Q. Did you receive a report regarding the events at
Civitella?

A. No, I did not receive that report. I have learned of it
for the first time here from the affidavit of an Army
General who was in command of that division, and who was
also responsible for these matters, and who apparently is
trying now to shift that responsibility to the division and,
because of the name of the division, to me.

Q. Your relationship to Hitler and your influence upon him
has again been touched upon during cross-examination. Will
you please summarise the facts briefly by particular
periods, which are necessary to form an opinion on that
relationship?

A. I have already pointed out during the cross-examination
that a very long period is involved here. In 1923, when I
was an S.A. leader, my relationship was normal. Then there
is a long interval to 1931.

MR. JUSTICE JACKSON: May it please the Tribunal: It seems to
me, in the interests of time, highly objectionable to allow
the witness now to summarise. He was given the advantage of
answering any questions he wanted to as he went along. It
seems to me that when he has covered a subject at least once
- and as a matter of fact he covered this one four or five
times in an address at nearly every question that would
permit - that that at least should bring us to the end of
that subject. It was exhausted.

The matter of time here is a grave matter. By our
calculation - a careful calculation - of the witnesses which
have been allowed, this trial will now project into August.
It does not seem right that we should allow him to play this
game both ways, to make his speeches during the cross-
examination and then to sum them up again afterwards.

THE PRESIDENT: Dr. Stahmer, the Tribunal has allowed you to
ask questions which, strictly speaking, are not admissible
in re-examination and I want to make it clear to you what
questions are admissible in re-examination-only those which
arise out of the cross-examination. As to this particular
question, the defendant Goering was allowed to make what
were really speeches in his examination in chief without any
interruption whatever and he went over the whole history of
the Nazi regime from its inception until the end of the war,

                                                  [Page 338]

and the Tribunal does not consider that he ought to be at
liberty to go over the same ground again in re-examination.

DR. STAHMER: Mr. President, I had merely put that question
because up to now it had not been dealt with comprehensively
and I think it necessary, in order to form an opinion of the
defendant and his attitude during that time, to have a
comprehensive and coherent account of this matter which in
my opinion is so important for the decision to be made in
this trial. If, however, the Tribunal objects to this
question, I must submit to that decision and withdraw the
question.

BY DR. STAHMER:

Q. I have another question. During your examination, you
stated, regarding certain accusations, that you want to
assume responsibility for them. How is that to be
understood?

A. As to responsibility, one must differentiate between
formal and actual responsibility. Formally, I bear
responsibility for that which was done by those departments
and offices which were under my command. Although I could
not possibly have seen or known beforehand everything that
was issued or discussed by them, I must nevertheless assume
formal responsibility, particularly where we are concerned
with the carrying out of general directives given by me.
Actual responsibility I see in those cases in which I
personally issued orders or directives, including in
particular all acts and facts which I signed personally or
issued authentically, but I mean these facts only and not so
much general words and statements which were made during
those twenty-five years here and there in small circles. In
particular, I want to say the following very clearly about
responsibility: the Fuehrer, Adolf Hitler, is dead. I was
regarded as his successor in leading the German Reich.
Consequently I must declare, with reference to my
responsibility, that it was my aim -

THE PRESIDENT: The Tribunal would wish that you should not
make speeches. The Tribunal is perfectly well able to
understand the difference between formal responsibility and
actual responsibility for orders given by you.

THE WITNESS: I acknowledge my responsibility for having done
everything to carry out the preparations for the seizure of
power, and to have made the power firm in order to make
Germany free and great. I did everything to avoid this war.
But after it had started, it was my duty to do everything to
win it.

THE PRESIDENT: We have already heard you say that more than
once and we do not wish to hear it again.

THE WITNESS: On the question of labour: During the war, the
inhabitants of the occupied territories were brought in to
work in Germany and their countries were exploited
economically.

THE PRESIDENT: Dr. Stahmer, you are supposed to be asking
questions of the witness. Now, what question is that in
answer to?

DR. STAHMER: I had asked him about his responsibility -

THE PRESIDENT: You can ask him questions but you cannot ask
him general questions which invite speeches. If you have any
particular questions to ask him which arise out of the cross-
examination, now is the time to ask them.

DR. STAHMER: I put this question: To what extent does he
consider himself responsible for the points mentioned here
in the cross-examination regarding the deportation of
workers -

MR. JUSTICE JACKSON: I object to this question being put.

THE PRESIDENT: He has already told us about that. He
answered that question more than once.

DR. STAHMER: In that case, I have no further questions to
ask.

THE PRESIDENT: Very well. Then the defendant can retire.

(The witness retired.)

THE PRESIDENT: Yes. Dr. Stahmer.

                                                  [Page 339]

DR. STAHMER: May I first of all give a short review of the
present stage of the trial so that the Tribunal can see what
the list of witnesses still granted to me is like now. I was
going to forgo Dr. Lohse.

THE PRESIDENT: Dr. Lohse, did you say?

DR. STAHMER: Yes. I abstain from calling Dr. Lohse because
the defendant has in my opinion already made sufficient
statements on that subject. Furthermore, I had been granted
the Ambassador, Dr. Paul Schmidt, as a witness. That
witness, of whom I want to ask a few questions only, I
should like to, hear only later, subsequent to his
examination for the defendant Ribbentrop, because he will
have to answer a wide range of questions, during that
examination, and it appears to me appropriate if I call him
subsequent to that - which is also in accord with the wish
of Dr. Horn, if the Tribunal will agree to that procedure.

ME PRESIDENT: Certainly.

DR. STAHMER: The witness Koller, as it has now been
ascertained, is in Belgium, and not in Germany. His hearing
was provided in case he was in Germany. Consequently, I
shall have to submit an interrogatory to that witness. That
has been done, but the interrogatory has not yet been
returned.

THE PRESIDENT: Yes.

DR. STAHMER: Furthermore, I have received permission to
submit interrogations to the witnesses Ondarza, Freiherr von
Hammerstein, Kammhuber, Student and Bunjes. The
interrogatories have been submitted but have not yet been
returned. The situation is that the addresses of Ondarza and
Kammhuber have since been ascertained; as to the other three
witnesses, inquiries are still being made, so that also here
I cannot yet submit anything. Then there are interrogatories
of Uiberreither, Lord Halifax and Sir George Forbes; from
Halifax and Forbes the interrogatories have been received,
and I am going to read them; from Uiberreither there is a
written statement as well.

THE PRESIDENT: What do you mean by "a written statement as
well"? You said there are the interrogatories from Lord
Halifax and Sir George Ogilvie Forbes.

DR. STAHMER: Interrogatories have been received from Lord
Halifax and Sir George Forbes. There is a written affidavit
from Uiberreither and I assume that that may take the place
of an interrogatory.

THE PRESIDENT: Yes, I understand.

DR. STAHMER: Furthermore, there is the Katyn case, Mr.
President. Five witnesses are involved. I am still making
inquiries regarding their addresses. I am therefore not in a
position to have these witnesses called before the Tribunal.

THE PRESIDENT: Yes, Dr. Stahmer. Was that all that you
wished to say at this stage ?

DR. STAHMER: Yes, upon the question of these witnesses; in
addition, I must present that which I have in the way of
documents and then I shall have completed my case for the
time being. I have put down in writing that which I have to
say about the documents.

THE PRESIDENT: Just one moment.

DR. STAHMER: Yes, Sir?

THE PRESIDENT: Yes, Dr. Stahmer, the Tribunal approves of
the course which you suggest.

MR. JUSTICE JACKSON: May I, in the interest of time, make a
suggestion, your Honour. These documents which Dr. Stahmer
proposes to offer have, I understand, been translated into
all four languages, so that the reason for reading them in
open court does not hold good. I cannot speak for my
colleagues, since I have not consulted them, but so far as
the United States is concerned we will not raise a question
of relevancy; we spend no time arguing points of relevancy.
I suggest that the reading of a whole document book

                                                  [Page 340]
seems a waste of time of the Tribunal since the documents
are available in all four languages.THE PRESIDENT: Dr.
Stahmer, before we consider that course which has been
suggested by Mr. Justice Jackson, we should like to hear
whether any of the other Chief Prosecutors have anything to
add to it.

SIR DAVID MAXWELL FYFE: I respectfully submit that it is an
excellent suggestion, and I want to make it clear to the
defence counsel that I feel that it will, on the one hand,
avoid arguments of relevancy on comparatively small points
and, on the other hand, the defence counsel will be able to
use any of the excerpts in their final speeches with more
effect and probably with more help to the Tribunal than
merely by reading them at this stage. I respectfully support
it and consider that it will improve the general condition.

THE PRESIDENT: Thank you, Sir David. We will hear you in a
moment, Dr. Stahmer, but I do not want you to go away; I
want you to be able to hear General Rudenko, too.

GENERAL RUDENKO: I am fully in agreement with the suggestion
of Mr. Justice Jackson and that of Sir David Maxwell Fyfe
and I also consider that the Tribunal accept these documents
which have been translated into four languages. This does
not exclude the premise, namely that the defence has no
right to submit documents that have nothing to do with the
present case. In particular I have a definite objection
against submitting as exhibits the extracts from documents
of the so-called "White Book" which are being submitted by
Dr. Stahmer in the document book. These extracts have
nothing to do with the present case and they should not be
submitted.

THE PRESIDENT: Does the French Chief Prosecutor wish to add
anything to what has been said?

M. DE REBES: The French prosecution has laid before the
Tribunal a note requesting rejection of Document 26. It
concerns, indeed, an extract from a note from the German
Government to the French Government regarding the treatment
of German prisoners of war in France. This extract refers to
a secret order from the headquarters of the General
commanding the 9th French Army. This extracts says that the
General commanding the 9th French Army published an order;
this order was not given to us. We are dealing only with an
assertion of the German Government, which is the Government
of the defendant. The extract which is offered to us has,
therefore, no relevancy and we ask the Tribunal to reject
it.

THE PRESIDENT: The Tribunal, at the moment, is not
considering the question of relevancy of particular
documents. They are only considering the general question of
method as to whether all these documents have to be read out
to the Tribunal or whether they can be laid before the
Tribunal for the Tribunal's consideration. If they have got
to be read out in full it will take a very considerable
time, and therefore Mr. Justice Jackson has suggested that
instead of all these documents being read out in full, which
will take a very long time, as they have been translated the
reason for that no longer exists as it did exist in the case
of the documents put in by the prosecution which had not
been translated. But that does not mean that the question of
relevancy of individual documents or particular passages in
the documents is decided by the document book being
presented for the consideration of the Tribunal. Such
questions as that may, in important cases, have to be
considered after argument, but as a general rule and for the
purpose of avoiding delay the suggestion of Mr. Justice
Jackson appears to have a very great deal to recommend it.

M. DE RIBES: The matter which is before us to-day was to
find out whether all of the documents which have been
submitted are relevant, and that is why I asked that the
Tribunal reject one of the documents as irrelevant. If it is
understood that this question may be brought up later when
the document is produced, then I see no objection to
postponing my explanation. I wish only to state,

                                                  [Page 341]
concerning Document 26, that the quotation read by Dr.
Stahmer is mutilated and I shall ask the Tribunal to hear
this document read in full.

THE PRESIDENT: We would like to consider this matter, but
before doing so we would like to know whether you, Dr.
Stahmer, have any objection to the suggestion that has been
made. You understand what Mr. Justice Jackson's suggestion
is?

DR. STAHMER: Yes, Mr. President, I understand; it touches
upon a fundamental question of the defence, and I should
like to discuss this question briefly with the other defence
counsel. I should like to suggest that the Tribunal take a
short recess now so that there will be an opportunity to
discuss the matter. I would then make my statement
afterwards.

I should like to point out now that at the time we were
willing to forgo the reading of the Indictment, and its
being read was not due to our demands. There was probably an
opinion that it had to be read as a matter of principle. I
shall clarify the question and report immediately.

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