The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
21st January to 1st February, 1946

Forty-Sixth Day: Wednesday, 30th January, 1946
(Part 5 of 7)

[Page 287]

THE PRESIDENT: M. Dubost, had the document on Page 31 been received before? - the one you just read?

M. DUBOST: Document on Page 31, which I have just read, was not read before Mr. President, but it was submitted. I thought you were speaking -

THE PRESIDENT: The next one has been read, has it not, 498?

M. DUBOST: Document 498, which I told the Tribunal I was not going to read, was read by our American colleagues. The Tribunal will find it, nevertheless, in the document book on Pages 32 and 33.

THE PRESIDENT: There are two points to which I wish to draw your attention. In the first place, it is said that you are not offering these documents in evidence, you are simply reading them, and they must be offered in evidence so that the document itself may be put in evidence. You have not offered in evidence any of these documents; you have just been reading from them or have given them numbers.

M. DUBOST: Mr. President, they were all filed, absolutely all of them except those which were already filed by our colleagues, and all were filed with a number, and can be handed to you immediately. I shall ask the French secretary to hand them to you with the exhibit numbers which I read out.

THE PRESIDENT: They have all been put in evidence already?

M. DUBOST: Mr. President, some have been put into evidence; I quoted them with their exhibit numbers, but some have not been submitted. I will submit these and give them French numbers.

THE PRESIDENT: You are saying, "have been put in evidence by some other member of the prosecution;" is that right?

M. DUBOST: That is correct, Mr. President. When I quote them I give the number under which they were filed by my American colleagues.

THE PRESIDENT: That was filed by the American Prosecution, was it not 498, on Page 32?

[Page 288]

M. DUBOST: 498, on Page 32 has already been filed as exhibit U.S.A. 501, as I said before, Sir.

THE PRESIDENT: I am speaking of 498, Page 32.

M. DUBOST: That is correct. It is the American number 501 filed by my American colleagues as Exhibit U.S.A. 501.


M. DUBOST: No. 498-PS, Mr. President, Page 32 in your document book has already been submitted, as I said, by my American colleagues and has been read by them. I shall not read it. I shall merely comment on it briefly.

THE PRESIDENT: Very well, with reference to the document which preceded it on Pages 27 29, 30 and 31 -

M. DUBOST: I will ask the French secretary to give them to you with the numbers under which they were filed, which correspond to the ones I began to read.

THE PRESIDENT: Have they been filed by the American prosecutor too?

M. DUBOST: Not all, Mr. President. Some were filed by the American Prosecution and others were filed by me.

THE PRESIDENT: All I am pointing out - I think, M. Dubost, that what the Tribunal wants you to do is - when you put in a document -

M. DUBOST: Will you excuse me, Mr. President. I do not understand.

THE PRESIDENT: I have not finished the sentence. What I was saying was, what the Tribunal wants you to do is, when you put in a document, if it has not already been put in, give it a number and announce the exhibit number so that the record may be complete.

Is that clear?

M. DUBOST: It is clear, Mr. President, but I believe that I have done so from the beginning, since the French secretary has just given you the file.

THE PRESIDENT: You may have put numbers on the documents, but you have not announced them in some cases.

There is another matter which I wish to state and it is this. When I spoke before, what I asked you to do was to confine yourself to any new points, and you are now giving us evidence about commandos and about British commandos, all of which has been already gone into in previous stages of the trial, and that appears to us to be unnecessary.

M. DUBOST: The Tribunal will pardon me, but I have not read any of the documents already mentioned. The documents from which I have read were documents not cited before. I had just reached a document which had been mentioned before, and I asked the Tribunal to excuse me from even commenting on it, since I thought the document was already well known to the Tribunal.

THE PRESIDENT: Well, we have had a good deal of evidence already about the treatment of commandos and sabotage groups, evidence, if I remember rightly, which attempted to draw some distinction between troops which were dropped from the air, for instance, close up to the battle zone, and troops that were dropped at a distance behind the battle zone. We had quite a lot of evidence upon that subject. If there is anything which is of special interest to the case of France we would be most willing to hear it, but we do not desire to hear cumulative evidence upon subjects which we have already heard.

M. DUBOST: I did not think that I had brought cumulative proof to the Tribunal in reading documents which had not previously been read, but since that is so, I will continue, but not without emphasising that, in our view, the responsibility of Keitel is seriously involved by the orders which were given and by the execution of these orders.

Document 510-PS, Page 48, has not been read. We submit it as Exhibit RF 367,

[Page 289]

and we ask the Tribunal to take judicial notice of it: it concerns the carrying out of the orders which were given concerning the landing of British detachments at Patmos.

A memorandum from the General Staff to the commander of the different units, Document 532-PS, which is the appendix to the document book repeats and specifies the instructions which the Tribunal knows and does not bring anything new into the case. We submit this document as Exhibit RF 368, and we ask the Tribunal to take judicial notice of it.

We shall now deal with the execution of Allied airmen who were captured.

From the presentation which was made of this question, the Tribunal has learned that a certain number of air operations were considered as criminal acts by the German Government, who indirectly encouraged the lynching of the airmen by the population or their immediate extermination by the action "Sonderbehandlung" (special treatment), which need not be discussed again. This was the subject of Exhibit USA 333, which has already been cited, and USA 334.

Within the scope of these instructions, orders were given by the letter of 4 June 1944 to the Minister of Justice to forbid any prosecution against German civilians in connection with the murder of Allied airmen. This is the subject of Document 635-PS, which you will find in the appendix of the document book, same paragraph.

"Reich Ministry of Justice." This document will become as Exhibit RF 370.

"The Reich Minister and Head of the Reich Chancellery, 4 June 1944, to the Reich Minister of Justice, Doctor Thierack:

Subject: The justice of the people against Anglo- American murderers. The Chief of the Party Chancellery has informed me of his secret memorandum, a copy of which is enclosed, and has asked me to make it known to you also. I am complying with this in asking you to examine to what extent you wish to inform the tribunals and the public prosecutors."

On 6 June, two important conferences were held, notably between Kaltenbrunner, Ribbentrop, Goering (all three defendants), Himmler, and Von Brauchitsch, at which officers from the Luftwaffe and the SS were present, also. They decided to draw up a final list of air operations which would be considered acts of terrorism.

The original record made by Warlimont and bearing written notes by Jodl and Keitel is Document 735-PS, which I submit as Exhibit RF 371. It was decided at this conference that lynching would be the ideal punishment to stop certain types of air operations directed against the civilian population.

Kaltenbrunner, on his part, promised the active collaboration of the SD (Page 68 at the end of the first paragraph and the second paragraph.).

THE PRESIDENT: Was it already read?

M. DUBOST: This document, so far as I know, was never read.

DR. EXNER (Counsel for defendant Jodl): I am protesting against the presentation of Document 532-PS dated 24.6.44. (NB. See Tribunal's ruling on page 293.) That is a draft of an order which was submitted to Jodl, but which was crossed out by him, and so annulled.

At this juncture I would also like to call the attention of the Court to the fact that we defence counsel did not receive a document book like the one presented to the Tribunal, and it is therefore very hard for us to check and to follow the presentations of the prosecution. Every morning we receive a pile of documents, some of which partially refer to future and some to past proceedings. But I have not seen document book in chronological order for


weeks. Furthermore, it would be desirable for us to receive the documents the day before. In that case, when testimony is given, we could be of assistance to both sides.

THE PRESIDENT: Dr. Exner, are you saying that you have not received the document book, or that you have not received the dossier? Are you saying that you have not received the document book, or this thing which is the dossier of the speech.

DR. EXNER: I did not receive the document book. I would like to add something. Some of the documents which have just been presented were quoted without signatures, and without date, and it is questionable whether these so-called documents are to be considered as documents at all.

THE PRESIDENT: Well, I imagine that you have just heard - I have told M. Dubost that he must announce the exhibit number which the French prosecutor is giving to any document which he puts in evidence. As I understand it, he has been putting numbers upon the documents, but in certain cases he has not announced the number in open court. The document, as you have seen, has been presented, and, as I understand, it has a number upon it, but he has not in every case announced the number, and the Tribunal has told M. Dubost that it wishes and it orders that every document put in by the French prosecutor should have an exhibit number announced in Court. That meets one of the points that you raised.

As to your not having the document book, that is, of course, a breach of the order which the Tribunal has made that a certain number of copies of the documents should be deposited in the defendants' Information Centre, or otherwise furnished to defendants' counsel.

As to Document 532-PS -

(Off the record discussion by the Court.)

THE PRESIDENT: Dr. Exner, is there anything further you wish to say upon these points, because we are just about to have a recess for a few moments. We would like to hear what you have to say before we have the recess.

DR. EXNER: I have nothing further to add, but if I may be permitted to make a further remark, we were advised that it was your Honours wish that we should hear every day what is to be the subject of the proceedings on the following day, which would, of course, be a great help to our preparations. So far, that has never been the case. I myself have never heard what was to be dealt with the following day.

THE PRESIDENT: Thank you. M. Dubost, the Tribunal would like to hear what you have to say upon the points raised by Dr. Exner: first of all, upon Document 532-PS; secondly, why he did not receive a document book; and lastly, why he has not received any programme as to what is to be gone into on the following day.

M. DUBOST: As to the question of programme, as Dr. Exner pointed out, the custom of providing it has not been established by the prosecution. No one has ever given it, neither the French prosecution nor its predecessors. Perhaps I did not attend the session the day the Tribunal requested that the programme should be given. In any case I do not remember that the prosecution was ever requested to do that.

As far as the document book is concerned, it is possible that this book was not handed to the defence in the form which is before the Tribunal, that is to say, with the pages numbered in a certain order. However, I am certain that yesterday I sent the defence the text in German and several texts in French of all the documents which I was to submit to-day. I cannot assure the Tribunal that they were handed over in the order in which you have them before you, but I am sure that that was done.

THE PRESIDENT: As to Document 532?

[Page 291]

M. DUBOST: Document 532 was not read in the hearing, Mr. President. I could not hide the fact that there was a manuscript note in the margin, but I did not read this document.

THE PRESIDENT: Is it a document that had been put in before?

M. DUBOST: I do not believe so, Mr. President. In my dossier there are a certain number of documents which I have not read, as I knew the Tribunal's wish that I should shorten my presentation, and Document 532 is one of those.

THE PRESIDENT: I know you did not read it, but did you put it in evidence? Did you give it a number?

M. DUBOST: No, Mr. President. It is part of this series of documents which I shall not read, in order to finish more quickly, since that is the wish of the Tribunal.

THE PRESIDENT: Well, M. Dubost, I have said that I knew that you did not read it, and I have asked you - I think twice - whether you intended to put it in evidence. Did you give it a number?

M. DUBOST: Perhaps, Mr. President .... Yes, that is correct, Exhibit RF 368, I remember.

THE PRESIDENT: The document, according to Dr. Exner, is a draft of a order which was submitted to Jodl but was not approved by him. Those were his words, as they came through in the translation, and, therefore, he submits that it is not to be considered, and there is nothing to show that the document was ever anything more than a draft. If so, is it not clear that it ought not to be received in evidence?

M. DUBOST: This is a question which the Tribunal will decide after having heard the explanation of Dr. Exner. This document did not seem to me of major importance in my presentation, since I did not read from it. In any case, I could not hide from the Tribunal, since I did not read it, that there was a manuscript note in the margin. It is certain that this manuscript note is an element to be taken into consideration, and on which the Tribunal will base its decision whether the Exhibit RF 368 should be accepted or rejected, after having heard the explanation of the defence.

(A recess was taken)

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