The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
November 20 to December 1, 1945

Seventh Day: Wednesday, 28th November, 1945
(Part 1 of 6)

[Page 211]

THE PRESIDENT: I call upon Counsel for the United States.

MR. ALDERMAN: May it please the Tribunal, at this point we distribute document book lettered "N," which will cover the next phase of the case as it will be presented. Of the five large phases of aggressive warfare, which I undertake to present to the Tribunal, I have now completed the presentation of the documents on the first phase, the phase lasting from 1933 to 1936, consisting of the preparation for aggression.

The second large phase of the programme of the conspirators for aggression lasted from approximately 1936 to March, 1939, when they had completed the absorption of Austria and the occupation of all of Czechoslovakia. I again invite the Court's attention to the chart on the wall, at which you may be interested in glancing from time to time as the presentation progresses.

The relevant portions of the Indictment to the present subject are set forth in Sub-section 3, under Section IV (F), appearing at Pages 7 and 8 of the printed English text. This portion of the Indictment is divided into three parts: First, the 1936 to 1938 phase of the plan, planning for the assault on Austria and Czechoslovakia; second, the execution of the plan to invade Austria, November 1937 to March 1938; third, the execution of the plan to invade Czechoslovakia, April 1938 to March 1939.

As I previously indicated to the Tribunal, the portion of the Indictment headed "(a) Planning for the assault on Austria and Czechoslovakia," is proved for the most part by document 386-PS, which I introduced on Monday as exhibit USA 25. That was one of the handful of documents with which I began my presentation of this part of the case. The minutes taken by Colonel Hoszbach of the meeting in the Reich Chancellery on 5th November, 1937, when Hitler developed his political last will and testament, reviewed the desire of Nazi Germany for more room in Central Europe, and made preparations for the conquest of Austria and Czechoslovakia as a means of strengthening Germany for the general pattern of the Nazi conspiracy for aggression.

I shall present the materials on this second, or Austrian phase of aggression, in two separate parts. I shall first present the materials and documents relating to the aggression against Austria. They have been gathered together in the document book, which has just been distributed. Later I shall present the materials relating to the aggression against Czechoslovakia. They will be gathered in a separate document book.

First, the events leading up to the autumn of 1937, and the strategic position of the National Socialists in Austria. I suggest at this point, if the Tribunal please, that in this phase we see the first full flowering of what has come to be known as "fifth column" infiltration techniques in another country; and first under that, the National Socialist aim of absorption of Austria.

In order to understand more clearly how the Nazi conspirators proceeded after the meeting of 5th November, 1937, covered by the Hoszbach minutes, it is advisable to review the steps which had already been taken in Austria by the Nazi Socialists of both Germany and Austria. The position which the Nazis had reached by the fall of 1937 made it possible for them to complete their absorption of Austria much sooner, and with much less cost than had been contemplated at the time of the meeting covered by the Hoszbach minutes.

[Page 212]

The acquisition of Austria had long been a central aim of the German National Socialists. On the first page of "Mein Kampf," Hitler said, "German Austria must return to the Great German Motherland," and he continued by stating that this purpose of having common blood in a common Reich could not be satisfied by a mere economic union. Moreover, this aim of absorption of Austria was an aim from 1933 on, and was regarded as a serious programme, which the Nazis were determined to carry out.

At this point, I should like to offer in evidence our document 1760-PS, which, if admitted, would be exhibit USA 57. This document is an affidavit executed in Mexico City on 28th August of this year by George S. Messersmith, United States Ambassador, now in Mexico City. Before I quote from a part of Mr. Messersmith's affidavit, I should like to point out briefly that Mr. Messersmith was Consul-General of the United States of America in Berlin from 1930 to the late spring of 1934. He was then made American Minister in Vienna, where he stayed until 1937.

In this affidavit he states that the nature of his work brought him into frequent contact with German Government officials, and he reports it that the Nazi Government officials, with whom he had contact, were on most occasions amazingly frank in their conversation and made no concealment of their aims.

If the Court please, this affidavit, which is quite long, presents a somewhat novel problem of treatment in the presentation of this case. In lieu of reading the entire affidavit into the record, I should like, if it might be done in that way, to offer in evidence, not merely the English original, but also a translation into German, which has been mimeographed.

THE PRESIDENT: Mr. Alderman, some of the Tribunal's documents are not marked with the 'PS " number, which makes it very difficult to find.

MR. ALDERMAN: They are marked in pencil at the foot.

THE PRESIDENT: Well, some of them are not.


THE PRESIDENT: I wonder if you have a copy of the book, which is numbered.

MR. ALDERMAN: If we could borrow the set that is not numbered, we could number it.

This translation of the affidavit into German has been distributed to counsel for the defendants.

DR. KUBUSCHOK (Counsel for defendant von Papen): An affidavit has just been turned over to the Court, an affidavit of a witness who is obtainable. The contents of the affidavit contains so many subjective opinions of the witness that it seems preferable to hear the witness personally in this matter.

I should like to take this occasion to ask for a decision, as a matter of principle, as to whether that which a witness can present in person may instead be presented in the form of an affidavit; in other words, a witness who can be reached should be brought in instead of an affidavit.

MR. ALDERMAN: If the Tribunal please, I should like to be heard briefly on the matter. May I be heard?

THE PRESIDENT: You have finished what you had to say, I understand.


THE PRESIDENT: Very well, we will hear Mr. Alderman.

MR ALDERMAN: May it please the Tribunal, I recognise, of course, the inherent weakness of an affidavit as evidence where the witness is not present, not subject to cross- examination. Mr. Messersmith is an elderly gentleman. He is not in good health. It was entirely impracticable to try to bring him here; otherwise we should have done so.

[Page 213]

I remind the Court of Article 19 of the Charter:
"The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply, to the greatest possible extent, expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value."
Of course, the Court would not treat anything in an affidavit such as this as having probative value unless the Court deemed it to have probative value; and if the defendants have countering evidence, which is strong enough to overcome whatever is probative in this affidavit, the Court will treat the probative value of all the evidence in accordance with this provision of the Charter.

By and large, this affidavit and another affidavit by Mr. Messersmith, which we shall undertake to present, covers background material, which is a matter of historical knowledge, of which the Court could take judicial knowledge. Where he does quote these amazingly frank expressions by Nazi leaders, it is entirely open to any of them, who may be quoted, to challenge what is said, or to tell your Honours what they conceive to be what they said. In any event, it seems to me that the Court can accept an affidavit of this character, made by a well-known American diplomat, and give it whatever probative value it seems to have to the Court.

On the question of reading the whole thing, the whole affidavit, I understand the ruling of the Court, that only those parts of documents which are quoted into the record, will be considered in the record, to have been based upon the necessity of giving the German Counsel knowledge of what was being used. As to these affidavits, we have furnished them with complete German translations, so that it seems to us that a different rule might obtain where that has been done.

THE PRESIDENT: Mr. Alderman, have you finished with what you have to say?


DR. KUBUSCHOK: The representative of the prosecution takes the point of view that the age and state of health of the witness makes it impossible to summon him as a witness. I do not know the witness personally, and consequently am not in a position to state to what extent he is actually incapacitated. Nevertheless, I have profound doubts regarding the presentation of such evidence of such an old and incapacitated person. I am speaking now not about Mr. Messersmith, but I should like to open the question to what extent the state of health of a witness determines whether or not a person can be heard by this Court.

It is important to know what questions, in toto, were put to the witness, since an affidavit only reiterates the answers to the questions which were put to the person. Very often conclusions can be drawn from questions, which were not in fact put to the witness. It is here a question of evidence on the basis of an affidavit, and for that reason we are not in a position to assume, with absolute certainty, that the evidence of the witness is complete.

I am not of the opinion of the prosecution that in this case there are being introduced two pieces of evidence of different value: namely, on the one hand the evidence of a witness, and on the other hand the evidence as laid down in an affidavit. The situation is rather this: That either the evidence is sufficient, or it is not. I think the Tribunal should confine itself to complete evidence.

MR. ALDERMAN: May it please the Tribunal, I want -

THE PRESIDENT: Yes Mr. Alderman, did you wish to add anything?

MR. ALDERMAN: I wish to make this correction, perhaps, of what I had said.

I did not mean to leave the implication that Mr. Messersmith is in any way incapacitated. He is an elderly man, about 70 years old. He is on active duty in Mexico City, and the main difficulty is that we didn't feel that we could take him away from his duties in that post and make him undergo a long trip at his age.

THE PRESIDENT: That's all, is it?


THE PRESIDENT: The Tribunal has considered the objection which has been raised and, in view of the powers which the Tribunal has under Article19 of the Charter,

[Page 214]

which provides that the Tribunal shall not be bound by technical rules of evidence, but shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value - in view of those provisions - the Tribunal holds that affidavits can be presented, and that in the present case it is a proper course. The question of the probative value of an affidavit as compared with a witness who has been cross-examined would, of course, be considered by the Tribunal and if, at a later stage, the Tribunal thinks the presence of a witness is of extreme importance, the matter can be reconsidered. And the Tribunal would add this: That if the defence wish to put interrogatories to the witness, they will be at liberty to do so.

MR. ALDERMAN: I offer then our document 1760-PS as exhibit USA 57, affidavit by George S. Messersmith; and rather than read the entire affidavit by George S. Messersmith, unless the Court wish me to do so, I had intended to paraphrase the substance of what it covers at various parts of the affidavit.

THE PRESIDENT: The Tribunal thinks it would be better, and that you must adhere to the rule which we have laid down, that only what is read in the Court will form part of the record.

MR. ALDERMAN: I shall read then, if this Tribunal please, on the third page of the English mimeograph; to identify it, it is the fourth paragraph, following a list of names headed by President Miklas of Austria and Chancellor Dollfuss:

"From the very beginnings of the Nazi Government, I was told by both high and secondary Government officials in Germany -"
THE PRESIDENT: Will you tell us again which page you are on?

MR. ALDERMAN: Page 3 of the English version, the fourth paragraph below the list of names. There are two Messersmith affidavits and counsel is confused between the two, I think.

"From the very beginnings of the Nazi Government, I was told by both high and secondary Government officials in Germany that incorporation of Austria into Germany was a political and economic necessity, and that this incorporation was going to be accomplished 'by whatever means were necessary.' Although I cannot assign definite times and places, I am sure that at various times and places, every one of the German officials whom I have listed earlier in this statement told me this, with the exception of Schacht, von Krosigk and Krupp von Bohlen. I can assert that it was fully understood, by everyone in Germany who had any knowledge whatever of what was going on, that Hitler and the Nazi Government were irrevocably committed to this end, and the only doubt which ever existed in conversations or statements to me was how and when."
And in connection with that paragraph, I invite your attention to the list of German officials to whom he refers on page 2 of the affidavit; and they are listed as Hermann Goering, General Milch, Hjalmar Schacht, Hans Frank, Wilhelm Frick, Count Schwerin von Krosigk, Joseph Goebbels, Richard Walter Darre, Robert Ley, Hans Heinrich Lammers, Otto Meissner, Franz von Papen, Walther Funk, General Wilhelm Keitel, Admiral Erich von Raeder, Admiral Karl Donitz, Dr. Bohle, Dr. Stuckert, Dr. Krupp von Bohlen and Dr. Davidson. Now, what the affidavit states is that he was sure that at various times and places, everyone of those listed German officials had made these statements to him, with the exception of Schacht, von Krosigk and Krupp von Bohlen. Continuing with the next paragraph :
"At the beginnings of the Nazi regime in 1933, Germany was, of course, far too weak to permit any open threats of force against any country, such as the threats which the Nazis made in 1938- Instead it was the avowed and declared policy of the Nazi Government to accomplish the same results which they later accomplished, through force, by the methods which had proved so successful for them in Germany: Obtain a foothold in the Cabinet, particularly in the Ministry of the Interior, which controlled the police, and then quickly eliminate the opposition elements. During my stay in Austria, I was told on any number of occasions by

[Page 215]

Chancellor Dollfuss, Chancellor Schuschnigg, President Miklas, and other high officials of the Austrian Government, that the German Government kept up constant and unceasing pressure upon the Austrian Government to agree to the inclusion of a number of ministers with Nazi orientation. The English and French ministers in Vienna, with whom I was in constant and close contact, confirmed this information through statements which they made to me of conversations which they had with high Austrian officials."
I shall read other portions of the affidavit as the presentation proceeds. On this question of pressure used against Austria, including terror and intimidation, culminating in the unsuccessful "putsch" of 25th July, 1934, to achieve their ends the Nazis used various kinds of pressure. In the first place, they used economic pressure. A law Of 24th March, 1933, German law, imposed a prohibitive 1,000 Reichsmark penalty on trips to Austria, and brought great hardship to that country, which relied very heavily on its tourist trade. For that I cite the Reichsgesetzblatt, 1933, Roman I, page 311, and ask the court to take judicial notice of that German law.

The Nazis used propaganda and they used terroristic acts, primarily bombings. Mr. Messersmith's affidavit, document 176o-PS, from which I have already read, goes into some detail with respect to these outrages. I read again from page 4 of the affidavit, the English version, the second paragraph on the page :

"The outrages were an almost constant occurrence, but there were three distinct periods during which they rose to a peak.

During the first two of these periods, in mid-1933, and in early 1934, I was still in Berlin. However, during that period I was told by high Nazi officials in conversation with them that these waves of terror were being instigated and directed by them. I found no concealment in my conversations with high Nazi officials of the fact that they were responsible for these activities in Austria. These admissions were entirely consistent with the Nazi thesis that terror is necessary, and must be used to impose the will of the Party not only in Germany but in other countries. I recall specifically that General Milch was one of those who said frankly that these outrages in Austria were being directed by the Nazi Party, and expressed his concern with respect thereto and his disagreement with this definite policy of the Party."

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