Firstly, the document is not an affidavit but only a summarised report on General Westhoff's statements.

Secondly, the report submitted is not signed by Colonel Williams, who conducted the interrogation. It is not signed at all, but has only a translator's note on it.

Thirdly, you cannot tell from the document the person who drafted it.

Fourthly -- in addition -- you cannot tell from that report whether General Westhoff was questioned on oath.

Fifthly, General Westhoff is, as far as I know, here in Nuremberg.

Sixthly, there is a protocol in existence concerning General Westhoff's interrogatory.

For these reasons I ask the Court to check as to whether that document -- which marked as a resume -- concerning General Westhoff's interrogation can be used as proof.

THE PRESIDENT: Where shall I find the document?

M. QUATRE: Mr. President, I admit the soundness of the defence's request but I think that I shall be in a position this evening to furnish the Tribunal with the minutes of the interrogation of General Westhoff, accompanied by an affidavit by Sir David Maxwell Fyfe. I received this document at the last moment and I did not produce it with my document book, but I shall be able to present it to the Tribunal this evening.

[Page 145]

THE PRESIDENT: Well, what do you say to the various points that have been raised by Dr. Nelte?

M. QUATRE: Mr. President; I quite admit the sound basis of the request by the defence and, as I said a moment ago, I shall be in a position at the end of this session to produce before the Tribunal the complete minutes of the interrogation of General Westhoff, accompanied by an affidavit by Sir David Maxwell Fyfe.

I regret not being able to produce it at the moment. I received these minutes too late and I thought it better not to add them to my document book for material reasons.

THE PRESIDENT: The Tribunal considers that the document which you have submitted to us cannot be admitted. It is a mere resume. The Tribunal thinks, also, that it can allow the interrogatory to be used only if a copy of it is handed to the defendants counsel and the witness who made the interrogatory is submitted to the defendants' counsel for cross-examination, if they wish to cross-examine him. Otherwise you must call General Westhoff and examine him orally. Is that clear? I will repeat it if you like.

The document you have submitted to us is rejected. You can either call General Westhoff as a witness, in which case, of course, he will be liable to cross-examination, or you can put in the interrogatory after you have supplied a copy of it to defence counsel, and then General Westhoff, who made the interrogatory, will be liable to cross-examination by the defence counsel.

SIR DAVID MAXWELL FYFE: Would the Tribunal allow me to intervene for one moment?

The document to which my learned friend referred a moment ago as having been certified by myself is a report of the United Nations War Crimes Commission, which I received from the Chairman, Lord Wright, and certified as such a report. It therefore, in my respectful submission, becomes admissible under Article 21 of the Charter. It is not merely a transcript of the interrogation. That is the document to which my learned friend referred and that is available and can be procured quite shortly.

THE PRESIDENT: Sir David, I follow that point, but at the same time that does not altogether meet the situation. If it is true that General Westhoff is in Nuremberg at the present moment, it would scarcely be fair that a document of that sort should be put in unless the person who made the statement or from whose interrogatory the statement was composed was submitted for cross-examination.

SIR DAVID MAXWELL FYFE: With the greatest respect, My Lord, I should like the Tribunal to consider that point because the Tribunal has not got the document in front of it, but it is a report to the United Nations War Crimes Commission, based on the interrogatory. It therefore, in my respectful submission, becomes admissible as a report within the actual words of Article 21 and therefore is a matter which the Tribunal shall, under the Charter, take judicial notice.

THE PRESIDENT: Would your submission be that the right course would be to take that report into consideration and leave it to the defendants, if they wished it, to call General Westhoff?

SIR DAVID MAXWELL FYFE: That would be my submission -- that is my submission because of the effect of Article 21, or the course which is contemplated in view of the special powers and special validity given to such reports by Article 21.

THE PRESIDENT: The Tribunal would like to know whether the interrogation was made by the prosecution in Nuremberg?

SIR DAVID MAXWELL FYFE: I am told that the interrogation was made in London. I did not know that General Westhoff was in Nuremberg. I will make inquiries on that point.

[Page 146]

THE PRESIDENT: Sir David, were you able to inform us whether or not the interrogation was made in Nuremberg or in London?

SIR DAVID MAXWELL FYFE: I am told it was made in London.

THE PRESIDENT: Do you know where the witness is now?

SIR DAVID MAXWELL FYFE: I did not know he was in Nuremberg until Your Lordship mentioned it, but I can easily verify that point.

DR. NELTE: Last week I received a letter from General Westhoff from the prison here in Nuremberg with answers to other questions. So you see that he was here last week.

THE PRESIDENT: The Tribunal will adjourn now.

(A recess was taken.)

SIR DAVID MAXWELL FYFE: I wonder if I might just add one or two words to clarify the position.

I do this because this is a matter to which the British Government, in particular, attached very great importance.

The position was that last September, on 25th September, the British Government sent a full report of this incident to the United Nations War Crimes Commission. that report included statement before a court of inquiry, statements by Allied witnesses, statements taken from German witnesses, including General Westhoff, copies of the official lists of the dead and a report of the Protecting Power. All that was sent by the British Government to the United Nations War Crimes Commission last September and the statement of General Westhoff, which I certified as being a report of the United Nations War Crimes Commission, was part of an appendix to that report which was then in the custody of the United Nations War Crimes Commission, and of which a copy was sent to me here.

I provided that to my French colleagues, and that refers to an earlier report made by General Westhoff at an interrogation which took place in London as a part of the matter of that report.

The document which my learned friend was adducing to-day was a summary of a subsequent interrogation of General Westhoff taken in Nuremberg.

My Lord, I wanted to get the position perfectly clear, if I could, to the Tribunal -- because, as I say, the incident is one of some importance and the British Government's report will be, I hope, tendered to the Tribunal by my Soviet colleague, as the incident lies to the East of the line which we have drawn through the centre of Berlin and therefore falls within the Soviet case.

But I do not want the Tribunal to be under any misapprehension as to the nature of the earlier report that was made, the one which my learned friend referred to as being able to put in later should the Tribunal desire it.

THE PRESIDENT: But you are agreed that the document which is now being offered to the Tribunal is not a government document within Article 21 of the Charter?

SIR DAVID MAXWELL FYFE: I quite respectfully agree that it is not really the document on which I intervened. I intervened on the second one.

THE PRESIDENT: At this stage we are not concerned with that, only with the document offered in evidence, to which nobody objected, and that document is not a Government document within Article 21.

SIR DAVID MAXWELL FYFE: That I understand is so, but I was really intervening to explain that the second document comes- --

THE PRESIDENT: I quite understand, yes.

The Tribunal allows the objection of Dr. Nelte. It considers that the document which has been submitted is not a governmental document within Article 21 of the Charter and is therefore rejected. The Tribunal adheres to the decision which I announced just before we adjourned, namely, that if the prosecution desire to do so, they can produce the interrogation of which

[Page 147]

the document submitted to them is understood by them to be a resume, and if they do so, then they must produce the witness, General Westhoff, for cross-examination by the defendant's counsel. In the alternative, they can produce and call General Westhoff himself and then, of course, he will be liable to cross-examination by the defendants' counsel.

M. QUATRE: I should like to state that as I am anxious not to lose time, and a good deal of time has already been wasted in the course of to-day's session, I shall not make use of this document now, nor shall I call General Westhoff. I shall simply request the Tribunal to note that we reserve the right to call General Westhoff, if necessary, when the defendants are cross-examined. May I continue, Mr. President?

THE PRESIDENT: You may.

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