Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-75.06
Last-Modified: 1999/11/25

                                                  [Page 197]

DR  SERVATIUS: I agree with the prosecutor and need only one
of the three witnesses. Should none of the witnesses be
found, I have in the document book an affidavit of one of
Sauckel's sons who was also present at the conference.

Witness 34, Skorzeny, will testify to the general connection
between the Gauleitung and the concentration camps; in other
words, to what extent the Gauleitung, by virtue of its
official position, had knowledge of what went on in the
concentration camps.

Witness 35, Reich Treasurer of the NSDAP, Schwarz. This
question has been settled. I have received my interrogatory
with the answers.

Witness 36, Frau Sauckel, was previously approved by the
Tribunal. I can see that certain objections might be raised
but the essential point is this: Among other things, the
witness repeatedly heard that the defendant Sauckel was
criticized for treating foreign workers too well and for
manifesting an international rather than a nationalistic
attitude. That is one point. The other point is that which
concerns the conspiracy, viz., that Sauckel kept aloof and
had very little intercourse with other members of the Party.
He worked consequently on his own and knew very little about
major developments in policy.

That concludes my remarks on the list of witnesses.

THE PRESIDENT: Dr. Servatius, you probably realize that you
have asked for a very much larger number of witnesses than
other counsel and I have, therefore, to ask you whom you
regard as the most important witnesses. It may be that it
will be necessary to limit the number as you are aware that
we are directed to hold an expeditious trial, and so would
you kindly give me the list of those witnesses whom you
regard as the most essential.

DR. SERVATIUS: If I have time till tomorrow to think it
over, I shall try to reduce the number. It is difficult
because the field is so large. Also I did not receive a
trial brief for Sauckel defining charges in detail, so that
I must be prepared for all eventualities. I must define my
position with regard to many points - food, wages, leave,
workers, transport, illness.

THE PRESIDENT: You will not forget that many of the
defendants are concerned in various aspects and they have
neither asked for nor been allowed this very large number of
witnesses.

DR. SERVATIUS: May I turn to the documents now?

THE PRESIDENT: Well, I rather thought that perhaps Sir David
was going to get in touch with you after the adjournment
and, perhaps, you could then deal with the documents more
successfully.

SIR DAVID MAXWELL FYFE: I think that would be time usefully
spent, my Lord, if the Tribunal would allow it.

THE PRESIDENT: Yes.

I call on Dr. Exner on behalf of the defendant Jodl.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, Dr.
Exner and Professor Jahreiss were good enough to approach
the prosecution on this matter and put forward certain
considerations, including the names of the witnesses to whom
they attached the greatest importance, and over a
considerable part of the field there is no difference
between us. On certain matters there is a difference of
principle, which I shall point out to the Tribunal in a
moment, but the effect is, if I might run through the
application, that the prosecution will not offer any
objections to General Winter, who speaks as to the
organization of the OKW and the respective duties of the
defendants Keitel and Jodl. They will not offer objections
to Major Professor Schramm, although the need for his
evidence is perhaps not so obvious. On the other hand, with
regard to No. 3, the evidence of Major Kipp, that the
fettering or chaining of prisoners took place at Dieppe,

                                                  [Page 198]

and as to the cause of the "shooting of Commandos" order,
the prosecution submit that these matters are irrelevant.
With regard to Major Buechs, Dr. Exner tells me that he will
be satisfied with interrogatories. The prosecution does not
object.

With regard to No. 5, General von Buttler, Dr. Exner
suggests that he should be a witness, and the prosecution
does not object.

With regard to No. 6, the prosecution is content that there
should be interrogatories.

With regard to Vice-Admiral Burkner, the prosecution is
prepared to take no objection.

Then with regard to No. 8, General Buhle, a questionnaire
has been sent off.

With regard to No. 9, it is suggested that there should be
interrogatories.

No. 10, interrogatories.

With reference to No. 21, the Tribunal has allowed an
interrogation in each case, and in many cases a
questionnaire has been sent off, and therefore the
prosecution could not object at this stage when action has
been taken on the Tribunal's suggestion. That would mean
that the defendant Jodl would have four oral witnesses,
apart from the interrogatories which have already been
largely approved by the Tribunal. The objection of the
prosecution to No 3 is maintained.

DR. EXNER: I should like, first of all, to mention No. 3,
Kipp. The prosecution has its objections to this witness. We
need him to give information as to how the Hitler order of
18th October, 1942, that is, the Hitler order regarding
Commandos, originated. This order has been made the basis of
a higher incriminating charge against Jodl and it is of
great importance to hear how this order came to be given. It
concerns the killing of Commandos dropped by planes or
landed from boats. As I understand it, the objection to this
witness and this subject generally is that it appears to
concern, for the most part, the events of Dieppe, in
consequence of which this order was admittedly issued. But
we are not concerned with an exact portrayal of what
actually happened at Dieppe. The witness Kipp is, in any
case, unable to do so, since he was in the OKW and was not a
witness of those events. We are concerned with something
else, namely, the fact that certain reports were presented
to the OKW which caused this order to be made. We are
furthermore concerned with the following facts to which Kipp
is in a position to testify.

When these reports about the events at Dieppe arrived, the
Fuehrer was enraged, and ordered strict measures to be taken
against these Commandos. Jodl refused to issue or draft the
order as demanded by the Fuehrer. When pressed, he said he
did not know what reason he could give for that order.

Jodl then passed the matter to Major Kipp for investigation,
as it was peculiarly complicated from a legal point of view
and Kipp, being a professor of law, should know something
about legal matters.

Moreover, from the Wehrmacht Operations Staff of Jodl, a
draft of a proposed order was issued regarding this matter
and a poll was taken of opinions held on the question by
members of the Staff and of other officers. Varying opinions
were received from the Auslands Abwehr, the legal
department, etc. As in the meantime ten days had passed,
Hitler lost patience and sat down and drew up the entire
order himself, as well as a further decree, establishing the
reasons for the order. Jodl, therefore, was not the author
of this order. All that he did was to express his doubts
regarding it. The story of the origin of the order of 28th
October, 1942, which, as I have said, has been made the
basis of a. grave accusation against Jodl, is of the utmost
importance. Kipp will testify to it. Further, it has already
been said that there is no objection to witness No. 5,
Buttler.

As to No. 4, I am satisfied with an affidavit or an
interrogatory, but I must reserve the right to call him as a
witness, should the interrogatory be inadequate or not
clear. I hope, however, that this can be avoided.

                                                  [Page 198]

Regarding witness No. 7, Vice-Admiral Gottlieb Burkner, I
should like to point out that he is the same Admiral Burkner
who was the subject of discussion this morning in connection
with the witnesses for the defendant Raeder. Perhaps that
will clear up the difficulty about Raeder.

Regarding No. 8, the interrogatory has already been sent
out. We have, however, distinctly reserved the right to
resort to oral testimony, should the interrogatory again
prove unsatisfactory. Otherwise, I have nothing further to
say on the subject, and the prosecution has no grounds for
protest.

I have just received a note, apparently from Goering's
counsel, saying: "I had relied on the fact that Buechs would
come as a witness." I had intended to call Buechs as a
witness and I only agreed to forgo his personal appearance
in the course of the discussion.

THE PRESIDENT: Which witness were you talking about?

DR. EXNER: Witness No. 4.

THE PRESIDENT: Do you say you are asking for him as an oral
witness?

DR. EXNER: Goering has also asked for him as a witness.

THE PRESIDENT: Has he been allowed to the defendant Goering?

DR. EXNER: He had counted on my calling him as a witness,
and on my being able to question him. He is here in
Nuremberg.

May I now turn to the documents?

THE PRESIDENT: Yes.

DR. EXNER: Points 1 and 4. The prosecution has no
objections. I submit the entire document to the Tribunal
without a translation of anything except the part which I am
going to read, and which deals with an important point which
must be clarified. If I am dealing with a large document and
I only need to quote one paragraph, it is sufficient if I
submit the original document to the Tribunal in its entirety
and include in my document book only the particular
paragraph in question and its translation.

THE PRESIDENT: That is right.

DR. EXNER: Regarding Points 5 and 6, the prosecution objects
and I withdraw these two documents.

Point 7 is a curious one. That is Document 532, submitted by
the prosecution and to which I made objection at the time.
The document was removed from the protocol, and now I myself
apply for this document to be submitted again. This is for
the following reason: The document is an order that was
submitted to Jodl in draft form. Jodl did not approve it,
crossed it out, and sent it back without signing it. This
draft was submitted by the prosecution and I objected to its
being presented as if it were actually an order signed by
Jodl. I want to submit it now in order to prove that Jodl,
by making it impossible for this order to be carried out,
deprived an illegal order of its effectiveness.

Regarding Points 8 to 15, the prosecution also has no
objection.

Regarding Points 16 and 17 . . .

SIR DAVID MAXWELL FYFE: Points 16 and 17 are the subjects of
objections from the prosecution. Point 16 relates to the
English Close Combat Regulations of the year 1942, and 17 is
the English order for the operation Dieppe of the same year.
With regard to the Close Combat Regulations, the only
relevance they could seem to have would be in relation to an
objection to this form of training, and in the submission of
the prosecution it would be irrelevant on the question of
the Commando order.

                                                  [Page 200]

With regard to the question of shackling, I think the
simplest way of dealing with it is to point out that the
prosecution, as my friend Mr. Dodd pointed out, have not
introduced that matter into their case, and therefore it
would appear that the English order in question was not
relevant.

Apart from the two general objections, neither of these
matters seem connected with points in the case.

I might just indicate No. 20, which is another objection.
That is on the same basis as the old document, which I think
the Tribunal has had before, the implication of the German
Foreign Office in breaches of International Law, and it is
sought for, as the Tribunal will see, as evidence of the
reports that were made to the High Command of the Wehrmacht,
and that gave occasion to take reprisal measures.

Then a similar ground of objection applies to No. 21, a
history of the White Russian Partisan War, which is sought
for as evidence that the danger of bandit warfare gave cause
for undertaking sweeping counter-measures.

These objections can be all grouped together. They fall
under the general objections to tu quoque evidence which the
prosecution has maintained throughout the trial.

DR. EXNER: May I say something about this? As far as 16 and
17 are concerned , we just want to see these documents. We
wish to see them first in order to judge whether or not we
want to submit them in evidence. I have stated so at the
foot of the page.

As to irrelevance, we do not say that we regard these orders
as illegal. But if for instance, in the Close Combat
Regulations, English soldiers are ordered to perform actions
for, which our soldiers are censured, it would constitute a
discrepancy of some importance. For in that case it would be
obvious, that the British Government regarded such methods
of warfare as legitimate. If, however, such methods are
legitimate for them, they must also be legitimate in our
case, since it is impossible to have two standards in these
matters. In order to establish this, we wanted to see these
Close Combat Regulations. That is No. 18.

No. 19 is a similar case, but I can more readily understand
that that was refused, as it may be a secret order. No. 20,
the White Paper . . .

THE PRESIDENT: Sir David didn't deal with 19, did he? He
only dealt with 16, 17, 20 and 21.

DR. EXNER: Yes. 18 and 19 have not been objected to.

THE PRESIDENT: As I understood it, his objection to 16 and
17 was that there was no complaint against the German
forces, either with reference to close combat or with
reference to shackling, in the Indictment.

DR. EXNER: If these Close Combat Regulations should happen
to include illustrations - there are actually pictures - of
the shackling of prisoners and orders for doing so, one
would be obliged to say that the British Government does not
consider this kind of treatment illegal and that if it
happens on our side we cannot be censured for it. It is
difficult for me to estimate their importance to us, because
I have not had these Close Combat Regulations in my own
hands. If I had them, I could make my application. I should
like to know whether I have to include them in my evidence
or whether there is no need.

No objection has been raised to 18 and 19. As to 20, these
are the White Papers already approved for Goering.
Consequently, I need not ask for them myself.

Regarding Point 21, I am convinced that this cannot be
settled with a charge of tu quoque. It is a Russian book,
describing partisan warfare. The author of this book is a
Russian who, himself, participated in partisan warfare for
several years as chief of a staff, and he writes from
personal experience.

We do not assert that the Russians did the same as we did,
which would be a tu quoque argument: I should like to have
this book for another reason. To

                                                  [Page 201]

understand and appreciate our regulations regarding
partisans, one must know these partisans. One must have
knowledge and experience of their methods, and be able to
appreciate the danger which they represented. This Russian
book describes all that, and is therefore important. The
author himself, as stated, played an active part in the
warfare carried on against the partisans.

In the Indictment it is stated: The war against the
partisans was simply an excuse for the annihilation of Jews,
Slavs and so on. This book shows that the war against the
partisans was a real war and not an excuse on our part.

If the book is unobtainable, I ask permission to read the
short account of the contents recently published in the
"Stars and Stripes". To conclude, it should be emphasized
that the book was written by a Soviet Russian and for this
reason cannot be assumed to have an anti-Russian bias.

Therewith I have concluded my presentation.

THE PRESIDENT: Sir David, the Tribunal would like to know
what your argument is with reference to 21.

SIR DAVID MAXWELL, FYFE: I was opposing it for the reason
that was given. The book is asked for as evidence that the
danger of bandit warfare gave rise for undertaking sweeping
counter-measures.

Now, broadly, the case for the prosecution is that the
counter-measures against partisans constituted atrocities,
and evidence of that kind has been given. It is, in my
submission, no defence to the committing of atrocities
against partisans, of the kind given in evidence, that their
warfare was extensive, or very fiercely or bravely waged.
This is just the tu quoque argument in its nakedness,
because partisans fight you, therefore you can burn their
villages, shoot their women, and kill their children. That
is the argument which we say is irrelevant and is
inadmissible.

My Lord, I should like to say that I have no objection, if
any of these documents can be obtained, to Dr. Exner looking
at the documents: on that point to which the prosecution
attached importance, I thought it right - and I know my
colleagues desired it - that I should make our position
clear.

THE PRESIDENT: That concludes your address, Dr. Exner, does
it?

DR. EXNER: May I add something concerning the last point. I
am, of course, perfectly aware that those atrocities, as
described here, cannot be justified by the activities of the
partisans, but the more violent the actions of the partisans
became, the harsher - of necessity - were the German counter-
measures, so that there is, after all, a connection between
these matters.

THE PRESIDENT: The Tribunal will consider your argument.

The Tribunal will now adjourn.

(The Tribunal adjourned until 7th March, 1946, at 1000 hours.)

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