The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
14th February to 26th February, 1946

Sixty-Sixth Day: Saturday, 23rd February, 1946
(Part 2 of 8)

[Page 248]

THE PRESIDENT: I beg your pardon, Dr. Stahmer, but you have misunderstood. The defence has never been told that objections to the admissibility of documents could be left over until later. Every objection to the admissibility of a document has been dealt with at the time. Observations upon the weight of the document are to be dealt with now, during the course of the defence. I do not mean to-day, but during the course of the defence.

There is a fundamental distinction between the admissibility of a document and the weight of a document, and all questions of admissibility have been dealt with at the time. DR. STAHMER: Mr. President, I fully understood that distinction. I did want to say that objections against admissibility were turned down, but rather objections against relevancy.

THE PRESIDENT: Objections to the relevancy of documents - that is to say, their admissibility - that is the governing consideration under this Charter as to the admissibility of documents. If they are relevant, they are admissible. That is what the Charter says. And any objection which has been made to documents or to evidence by defendants' counsel has been heard by the Tribunal and has been decided at the time.

Dr. Stahmer, the Tribunal wishes me to point out to the defendants' counsel that they have had long notice of this form of procedure, long notice that under Article 24 (d) they were going to be called upon to specify or name their witnesses and the documents which they wish to produce, and to state what the relevancy of the witnesses and the documents would be.

To the Tribunal it seems obvious that that procedure is really necessary when one remembers that it is for the Tribunal, with very great difficulty and at considerable expense, to find these witnesses and to bring them to Nuremberg; and to find the documents, if possible, and to bring them to Nuremberg.

Now, as to your, or to Dr. Horn's objections to the procedure which has been adopted with reference to the prosecution, it is open to defendants' counsel at any time, if they wish to do so, to apply to strike from the record any document which they think ought not to have been admitted. One of his objections, or possibly your objection, appeared to be that defendants' counsel have not had sufficient time to consider whether a particular document or a particular witness was relevant,

[Page 249]

and therefore admissible. You have had ample time now to consider the point and if you now wish to apply to strike out any document or to strike out any evidence, you will make that application in writing and the Tribunal will consider it.

As I have said, the object of the procedure is to -help the defendants and their counsel. And it is a necessary procedure because the defendants are unable, naturally, and defendants' counsel are unable, naturally, to procure the attendance of witnesses here in Nuremberg, and in some cases to procure the production of documents.

In order that we should be able to do so, on their behalf, it is necessary that we should know whom they want to have produced here; what documents they want to have produced here; and, in order that time and money should not be unduly wasted, it is necessary to know whether the witnesses and the documents have any shadow of relevancy to the issues raised.

DR. STAHMER: Then I will begin with the naming of those witnesses whose examination before the Tribunal I consider necessary.

I name first General of the Air Force, Karl Bodenschatz.

THE PRESIDENT: Dr. Stahmer, the Tribunal does not desire you to read your application. If you will just say in your own words, as shortly as you can, why you want the particular witness, they will then consider it. And if counsel for the prosecution wish to object, they will do so. Then the Tribunal will finally decide the matter.

DR. STAHMER: The witness I have named, General of the Air Force, Bodenschatz, who is here in the Nuremberg prison, was with the defendant Goering since 1933, first as adjutant and later as Minister, as Chief of the Ministerial Office. He is, therefore, well informed about ail the principal events of that time. I have named him as a witness for a number of facts which are individually contained in my written statement, but especially because he took part in a conference which was held at the beginning of August, 1939, in Soenke Nissen Koog, at which Goering met English negotiators in order to discuss, with them, the possibility of a peaceful solution of the difficulties then existing between Germany and Poland. At that time he declared to the English negotiators that a war must not come to pass under any circumstances, and that they must endeavour to settle these differences peacefully.

Furthermore, he has referred to statements which Goering made during the past years, particularly 1936 to 1939, from which it can be seen that it was Goering's intention to avoid a war if possible. He declared that the policy of the Reich should be conducted in such a way that a war could not break out under any circumstances.

Furthermore, this witness knows what was Goering's attitude when he first heard from Hitler that he intended to attack Russia.

Finally, he is also informed about the social attitude of Goering, whom he had ample opportunity to get to know very well, particularly after 1939.

These are, generally, the facts about which Bodenschatz could testify here as a witness.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, may I say one general word about the procedure of the prosecution?

My colleagues in all the delegations have asked me to deal primarily with these particular applications. There will be some of them, if the Tribunal pleases, on which certain of my colleagues would like to add a word, as they have special interest in them, but in general, and on the whole, I shall deal with the applications for the prosecution.

May I say that the prosecution has proceeded on this principle: that if there is any point of relevancy in a witness for whom application is made, they will not, of course, object. But they want to make it quite clear, so that the Tribunal will understand, that they are not, by making no objections, accepting the position that every point set out in the document or mentioned by counsel is admitted to be

[Page 250]

relevant. By making no objection they are simply admitting that there is some relevant point in the matter put forward.

On that basis - and the Tribunal will understand why I have to be careful in the matter - the prosecution makes no objection in the case of General Von Bodenschatz.

THE PRESIDENT: Yes, Dr. Stahmer.

DR. STAHMER: I further name as a witness the former Gauleiter, Dr. Ueberreither, who is at present here in the prison at Nuremberg. Ueberreither is to offer the following evidence. He can give information about a speech -

THE PRESIDENT: May I say this to Sir David that perhaps, in view of what you have said, you might be able to indicate at the opening of Dr. Stahmer's motion in respect to each witness whether the prosecution has any objection to the witness. Perhaps that would make it easier for him to deal shortly with it.

SIR DAVID MAXWELL FYFE: May I say that we have no objection to Dr. Ueberreither, on the same basis as I mentioned.

THE PRESIDENT: I only meant that if counsel for the prosecution indicate to us that they have no objection to a particular witness, then Dr. Stahmer can deal more shortly with the witness.

DR. STAHMER: Surely.

THE PRESIDENT: Just inform us what the relevance of the evidence is, but do it shortly because the prosecution has got no objection.


THE PRESIDENT: In the case of this particular witness, would it not be equally convenient to the defence, for the purpose of shortening things, to have this evidence taken either in an affidavit or by interrogatories?

DR STAHMER: Regarding the witness Ueberreither, I have no objections if I can get a statement from the witness himself.

THE PRESIDENT: Before you pass on, you might just tell us what the substance of the evidence is.

DR. STAHMER: Ueberreither was present when Goering, in the summer of 1938, delivered a speech before the new Gauleiter of Austria, in which he dealt with the policy of the Reich and in which he spoke about the goal and purpose of the Four Year Plan. The witness, furthermore, was present when Goering, some time after 10 November, 1938, that is, after the demonstration against the Jews, called all the Gauleiter to Berlin and there criticised those actions very severely. Those are the two subjects of evidence.

THE PRESIDENT: Very well. Then we can pass on to the third now.

DR STAHMER: The witness is Lord Halifax. Referring to this witness -

SIR DAVID MAXWELL FYFE: If I may interrupt - the interrogatories have been served on and answered by Lord Halifax The prosecution has no objection to the interrogatories Of course, it objects to his being called as a witness, but we understand that the Tribunal and Dr Stahmer agree to Lord Halifax being dealt with by means of interrogatories, and to that it has no objection.

DR. STAHMER: I am satisfied with the reply to my interrogatories which I have already received and I do not insist on summoning the witness.


DR. STAHMER: The next witness is the witness Forbes. I may say that in this case, too, the submission of an interrogatory was approved and the interrogatory, as far as I have been able to determine, has been sent out already. I have not yet received an answer.

SIR DAVID MAXWELL FYFE: Well, we have no objection to Sir George Ogilvie Forbes being dealt with by interrogatories. I will do my best to see that the answer is forthcoming as soon as possible. My recollection - I was not able to check it - is that Sir George is at a foreign capital, but I will do my best to see that the answers are brought and certainly will do everything to help on the point.

[Page 251]

DR. STAHMER : Whether I can ultimately forego him, I will naturally be able to judge only when I have the interrogatory before me. It may be that in regard to some questions he has given insufficient answers.

THE PRESIDENT: Do you mean Dahlerus or Sir George Ogilvie- Forbes?

DR. STAHMER: Forbes.

THE PRESIDENT: Yes. Well, the interrogatories will be submitted to you as soon as they are answered.

DR. STAHMER: Yes, Sir.

THE PRESIDENT: And I think the same is true of Dahlerus. Interrogatories have been granted for him.

DR. STAHMER: With regard to the testimony of Dahlerus I have to say the following: The testimony of this witness seems to me so important that an interrogatory could not exhaust all his knowledge and therefore I ask to have the witness called so that he can be examined here in Court.

If this should not be possible, I ask for the opportunity to question him personally at Stockholm.

Dr. Siemers knows Dahlerus personally, and he will make a statement concerning this witness.

DR. SIEMERS (Counsel for the defendant Raeder): I have known Dahlerus personally for many years. Dahlerus has written to me about the fact that Dr. Stahmer intends to call him as a witness. Dahlerus, in principle, is prepared to come to Nuremberg without further ado if the Court approves. As soon as the Tribunal agrees, Dahlerus, as far as I can deduce from his letter, will certainly be ready to come personally.

I wish to add something as a matter of principle. In the case of important witnesses who, as for instance Dahlerus, could answer questions which are of far-reaching historic importance, most probably more than one defendant's counsel will want to ask questions, as the subject interests several of them. Therefore, an interrogatory which comes only from Dr. Stahmer, would, in my opinion, not be sufficient in such a case. Accordingly I ask the admission of the witness also from this point of view.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, the position as to the witness Dahlerus is that Dr. Stahmer has put in interrogatories consisting of fifty-two questions. I make no complaint of that at all. I only bring it to the notice of the Tribunal to show that Dr Stahmer has certainly covered the ground.

In addition, if the Tribunal would turn for a moment to Dr Stahmer's application for documents, they will see that Item 26 is Dahlerus's book - if the Tribunal will pardon my Swedish, "Sista Forsoket," ("The Last Attempt") That is a quite lengthy book, dealing in detail with this point, and it is desired, and the Tribunal has allowed, that Dr. Stahmer will use it.

In addition, the position of Dahlerus has been the subject of interrogatories to Lord Halifax, who was then the British Foreign Minister, and to Sir George Ogilvie-Forbes, who was then Counsellor in Berlin, and on the main point of the matter, that Mr. Dahlerus had certain negotiations and paid certain visits, there is no dispute.

In my respectful submission, the defendant is well covered by the interrogatories, the connected interrogatories to Lord Halifax and Sir George Ogilvie-Forbes, and the book, and the evidence of the defendant Goering himself, and it is unnecessary to investigate this matter further, as to whether Mr. Dahlerus wishes to come and can come and should come from Sweden.

THE PRESIDENT: Sir David, may I ask you, has the prosecution administered cross interrogatories to Dahlerus?


THE PRESIDENT: There was another question. Did the defendant Raeder's counsel apply to have Dahlerus as a witness?

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