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 5 of 8)

[Page 258]

THE PRESIDENT: Are you not confusing the question of validity with the question of justice?



DR. STAHMER : I believe that in this sphere also the defence in justified in demanding the presentation of the White Books, because the contents of these White Books will, to a great extent, be of importance in the question of the war of aggression; and to that extent also a reference to these books has significance. Here also, I believe, it will only be possible to make a decision after the individual quotations from these White Books have been read.

[Page 259]

Furthermore, the presentation of the reports concerning the breaches of the Hague Convention has been demanded. I believe that this motion cannot be rejected with the remark that is not concerned with the question whether such breaches were committed on the other side, too. This fact, in my opinion, is of importance in two ways. First of all, to reach a just decision one has to make sure whether the conduct on the other side was really correct and beyond reproach, and it is furthermore of importance because it involves the question of whether the defendants were not resorting to retaliatory measures.

THE PRESIDENT: I think you have dealt with each topic with the exception of Numbers 20, 23, and 28. Number 20 is Mr. Winston Churchill's book; 23 is Tchitcherin's and 28 is General Fuller's book. We will take those.

DR. STAHMER: Book Number 20 - Churchill's "Step by Step" - here we are concerned with statements in which Churchill at one point expresses his opinion as to whether England, by the Naval Agreement of '35, had not sanctioned Germany's renunciation of the Versailles Treaty.

Furthermore, this book is of importance as far as I can see it now, in evaluating the extent to which England rearmed, and finally at various points in that book there are references to Hitler's personality.

SIR DAVID MAXWELL FYFE: I say with the greatest respect to Dr. Stahmer that he has reinforced my point, that if Dr. Stahmer is putting forward the thesis that in order to reach a proper decision on the matters before the Tribunal it is necessary to investigate whether other belligerents have committed breaches of conventions, then, as I say, I join issue with him in toto, I cannot add to the matter. But with regard to Mr. Churchill, Dr. Stahmer makes three points: one, that some passage in the book gives colour to the idea that by the Naval Agreement the validity of the Versailles Treaty was affected. That is a point to which there are obviously many answers, including the facts that France was a party to the Treaty and the United States was a party to a treaty in the same terms. But clearly Mr. Churchill's view expressed in a book, as to the legal effect of one treaty on another is, in my submission, irrelevant.

Equally irrelevant is the British rearmament and the personality of Mr. Churchill himself. And I respectfully submit, without going into detail, that Dr. Stahmer has, by his examples, confirmed the argument that these matters are irrelevant to the issues before the Court. I do not wish to say more.

THE PRESIDENT: Dr. Stahmer, the Tribunal would like to know if you would go back from this question, or, if you like, deal with anything you have to say about Sir David Fyfe's observations about Mr. Churchill's book, if you prefer to do that, do that now. But afterwards, and before you finish your argument upon these documents, the Tribunal would like to hear you somewhat further about Document 8 and following up to 22, in order that you should develop your argument as to how those documents can be relevant. For instance, Document 10 and Document 11, the speeches and notes of President Wilson. How can such documents as that have any bearing upon this trial or indeed upon the validity of the Treaty of Versailles? Take them in your own order.

DR. STAHMER: These speeches form the foundation of the Versailles Treaty, and they are significant therefore for the interpretation of the Treaty. Consequently it is important to refer to the speeches, in order to judge the contents of the Treaty and the question whether Germany rightfully or wrongfully renounced the Treaty, that is, whether thereby a breach of the Treaty took place, or whether the Treaty actually gave Germany the right to withdraw.

THE PRESIDENT: Is that all you wish to say about that?


THE PRESIDENT: Very well. Do you wish to say anything further about Nos. 20, 23 or 28?

DR. STAHMER: I have spoken about 20. 23 refers to the same questions regarding the interpretation and the contents of the Treaty.

[Page 260]

THE PRESIDENT: The statement by the Foreign Commissar of the USSR in 1924 - You say that it is relevant to the interpretation of the Treaty of Versailles; and General Fuller's book -

DR. STAHMER: General Fuller also refers in this speech to the personality of Hitler and to the question of rearmament.

THE PRESIDENT: Yes, that concludes them.

(Consultation of the members of the Tribunal on the Bench.)

The Tribunal will consider their decision upon your witnesses and upon your documents.

Have you anything further to say upon it?


(Professor Franz Exner, Counsel for the defendant Jodl, approaches the lectern.)


PROFESSOR EXNER: May it please the Tribunal, I take the liberty of adding something for the specific reason that there is danger that evidence may be refused which is of crucial importance for my client also. It concerns evidence which will show that war crimes and violations of International Law were committed by the other side too. The prosecutor has said that this is irrelevant as far as we are concerned here in this trial. The defence certainly does not think of making defendants of the prosecutors, but this point is certainly not irrelevant, specifically because:

First, it has to do with the concept of retaliation in International Law. Retaliation justifies an action which under normal circumstances would be illegal. That is to say, retaliation has this significance when the individual action is the answer to a violation of International Law committed by the other side. If, therefore, one wants to justify one's own action from the point of view of retaliation one can only do so by proving that violations of law have preceded it on the other side.

Secondly, I want to add an important point. It is well known that this war in the beginning was conducted comparatively humanely and -

THE PRESIDENT: Dr. Exner, you will forgive me, the argument which you are presenting to us was fully developed by Dr. Stahmer and will, of course, be fully considered by the Tribunal.

(Consultation of the members of the Tribunal on the Bench.)

Would you continue, then, Dr. Exner?

PROFESSOR EXNER: The second point is the following: It is well known that at the beginning of this war International Law was respected on both sides and that the war was conducted humanely. It was only in the second phase of the war that a terrible bitterness among the fighting powers developed and on both sides things occurred which International Law cannot sanction. In my opinion, it is exceedingly important in judging a crime, whatever crime that may be, to consider the motive. If one does not know the motive of the action, one cannot judge the action itself. And the bitterness which was caused, purely psychologically, by the manner in which the war was conducted on one side and on the other, was the motive for actions which normally cannot be justified.

I therefore ask the Tribunal to deliberate carefully before this evidence is declared irrelevant.

(Consultations of the members of the Tribunal on the Bench.)

DR. SIEMERS (Counsel for the defendant Raeder): I would like to mention a matter of principle with reference to the manner in which the relevancy of evidence is being discussed. If I understand the Tribunal correctly, then we should discuss today the relevancy of those witnesses and documents which are still to be brought here. That was exactly what was stated in the Tribunal's decision of 18 February.

[Page 261]

Now, however, the prosecution has brought the discussion round to documents which we already have in our hands. I ask the Tribunal to understand me correctly if I raise a very strong objection to this. In no case was it possible to discuss the relevancy of the prosecution's documents weeks before they were presented. If I have documents in my possession, as is the case with most of the documents about which we have spoken, then, as defendant's counsel, I must be able to submit these documents without the consent of the prosecution.

Sir David has said that the relevancy of books which are here in the building is to be examined after we have presented the extracts, and then the prosecution will decide whether they are relevant. Sir David has also said that numerous books which are here are not relevant. If this motion by the prosecution is granted, then that is an extraordinary limitation of the defence which I cannot accept without protest.

The prosecution was permitted to submit documents. The Court has declared that each letter and each document could be presented and therefore I do not understand why we are now arguing about the relevancy of documents which are at hand, since, in my opinion, the Court has already said that we will argue only about the relevancy of documents which are still missing.

THE PRESIDENT: I thought that on behalf of the Tribunal I had explained this morning - in answer to the argument of Dr. Horn on behalf of the defendant Ribbentrop - that what the Tribunal was seeking to do to-day, was to follow the provision of Article 24 (d), which provides that the Tribunal shall ask the prosecution and defence what evidence, if any, they wish to submit to the Tribunal, and the Tribunal shall then rule on the admissibility of any such evidence; and I pointed out that the reason why the defence had been to some extent treated in a different way from the prosecution was because, in the case of the defence, the Tribunal has to find all the witnesses and bring them here, and the Tribunal has, in many instances, to find the documents or supply the documents, and therefore it is not reasonable, and it also is not in accordance with the Charter, that the Tribunal should be asked to bring witnesses or documents here, until it has heard argument upon the admissibility of the witness or the document. And that is what it is doing.

I thought that I had fully explained that in answer to Dr. Horn's argument.

It is perfectly true that you cannot rule finally on the admissibility of a document or the admissibility of a witness until you have actually heard the passage in the document which is relied upon or the questions put to the witness which are said to be relevant or irrelevant. Therefore, the final determination upon the question of admissibility will be when the witness is put in the witness- box and asked questions, or the document or the passage from the document is actually produced.

DR. SIEMERS: Yes. Excuse me, but I believe that this still does not answer one point.

It is undoubtedly true that we are arguing here about documents and witnesses not yet at our disposal. But it is a different thing in the case of those documents which are already here in this building and which are at our disposal as defence counsel. To give an example: The White Books which Sir David has mentioned are here; why should we argue now about the relevance of this evidence? This question has nothing to do with the delay of the Trial, nor with the procurement of documents.

THE PRESIDENT: Do you wish to say anything, General Rudenko?

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