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-Seventh Day: Monday, 25nd February, 1946
(Part 1 of 8)

[Page 273]

THE PRESIDENT: Dr. Horn, you deal with Dahlerus last, I believe.DR. HORN:(Counsel for defendant Ribbentrop): That is right, Mr. President.

As the next witness, I ask the Tribunal to call General Kostring, former military attache in Moscow, and at present in prison in Nuremberg. In this case I am willing to forego the appearance of the witness in person if the submission of affidavit be permitted.

SIR DAVID MAXWELL FYFE: My Lord, we object to this witness and so Dr. Horn can develop it as far as he desires.

THE PRESIDENT: You object to him?



DR. HORN: I wish, nevertheless, to ask the Tribunal to call the witness in this case.

Originally, there was a possibility, as I was told, that the witness might be called by the prosecution. Since this has not been done, I ask that this witness be approved because he took part in the German-Russian negotiations from August to September, 1939, in Moscow, and until the beginning of hostilities against the Soviet Union, remained in his post. The witness, therefore, can tell us about the attitude of official German circles and personalities toward the German- Russian pact. For these reasons I ask the Tribunal to call the witness.

GENERAL RUDENKO: As it has already been stated by Sir David Maxwell Fyfe, the prosecution objects to the summoning of this witness. I merely wish to define the position of the prosecution in this case. The fact that the witness participated or was present at the August-September, 1939, negotiations is scarcely of interest to the Tribunal. The Tribunal primarily proceeds from the fact of the existence of this agreement and its treacherous violation by Germany. Consequently, the summoning of this witness to describe these negotiations would merely lengthen the proceedings.

DR. HORN: Mr. President, I am sorry, I was not able to understand the answer and the reasoning of the General.

THE PRESIDENT: Would you repeat, General?

GENERAL RUDENKO: Very well. I was saying, with reference to Sir David's protest on behalf of the prosecution, against the summoning of this witness, that I wished to explain that his testimony in regard to his presence at the 1939 negotiations in Moscow, would be of no interest whatsoever to the Tribunal. The Tribunal proceeds from the facts that this agreement had been concluded in 1939 and had been treacherously violated by Germany.

I consider that the summoning of this witness before the Tribunal is superfluous, since he has no connection whatsoever with the present case.

DR. HORN: I ask the Tribunal's permission to point out that for weeks General Kostring was in prison in Nuremberg at the disposal of the prosecution. Therefore, I ask the Tribunal to grant his being heard as a witness - for the reasons which I have mentioned.

THE PRESIDENT: The Tribunal will consider the matter. Dr. Horn, the Tribunal does not understand how the fact that General Kostring is in prison at Nuremberg can be any answer to the objection which is made on behalf of the prosecution, namely, that the Tribunal is not interested in negotiations which took place in September, 1939, but in the violation of the treaty. The Tribunal would like to know whether you have any answer to make to that objection. The only answer you have made up to date is that General Kostring is here in Nuremberg.

[Page 274]

DR. HORN: Mr. President, General Kostring is to testify that the pact with Russia was drawn up with full intention of its being kept on the part of Germany and on the part of my client.

I would not like to say anything further on this point at the moment and I ask the Tribunal to call the witness for the reason given.

THE PRESIDENT: Very well, the Tribunal will consider your request.

DR HORN: The next witness is Legation Counsellor, Dr. Hesse, who was formerly in the Foreign office in Berlin and now presumably in the camp at Ausburg.

SIR DAVID MAXWELL FYFE: My Lord, there is no objection to this witness. I do not know if Dr. Horn wants him in person or if an affidavit would do. The prosecution do not feel strongly on the matter, but they ask Dr. Horn to accept an affidavit whenever possible, and they suggest that he might consider it in this case.

DR. HORN: In this case I will be satisfied with an affidavit.

The next witness is the former ambassador in Bucharest, Fabricius, presumably in Allied custody in the American zone of occupation, or possibly already discharged from custody.

SIR DAVID MAXWELL FYFE: There is no objection in this case. Apparently this witness will speak as to an interview which is already in evidence before the Court and will give a different account of it. The prosecution makes no objection under the circumstances.

THE PRESIDENT: The Tribunal will consider that.

DR. HORN: The next witness is Professor Karl Burckhardt, President of the International Red Cross in Geneva and formerly League of Nations Commissioner at Danzig.

SIR DAVID MAXWELL FYFE: May it please the Tribunal, Dr. Burckhardt is obviously in a very special position. As President of the International Red Cross he is a person to whom all belligerents, irrespective of country, are indebted and the point that the prosecution make is that if he can speak to evidence coming from Hitler himself, that is if he can prove either by saying that he was informed by Hitler that the defendant Ribbentrop had interceded, or if he can say he saw letters received by Hitler from Ribbentrop, the prosecution would have no objection.

If he is merely going to say that Ribbentrop told him so, the prosecution would object.

Therefore, we submit that the reasonable course would be that he should make an affidavit as to his means of knowledge, and if that is done and if the means of knowledge are satisfactory, I should not think for a moment that the prosecution would do anything but accept the evidence of Dr. Burckhardt.

The second point, we submit, is irrelevant: the question of the results of the English promises of guarantee to Poland on the position in Danzig.

DR. HORN: Apart from the reasons which I have already submitted in my application I can also say that Professor Burckhardt visited Ribbentrop and Hitler in the year 1943, and therefore can make detailed statements.That answers the first question by Sir David.

I agree, however, that Professor Burckhardt submit the necessary affidavit and thus be spared a personal examination.The next witness is the Swiss Ambassador Feldscher, who was, to our knowledge, Ambassador in Berlin.

SIR DAVID MAXWELL FYFE: I suggest, my Lord, that he is in the same position as Dr. Burckhardt. He should be dealt with in the same way.

DR. HORN: I agree, Mr. President.

The next witness is the former Prime Minister of Great Britain, Mr. Winston Churchill.

[Page 275]

SIR DAVID MAXWELL FYFE: May it please the Tribunal, the prosecution objects to this application, and with the greatest respect to Dr. Horn, submits that there are no relevant reasons disclosed in the application now before the Tribunal. The first part of it is apparently on account of a conversation which does not touch the facts of this case, and the second part is also a discussion of a conversation which apparently took place some years before the war, between the German Ambassador and a gentleman who at that time was in no official position in England. But what relevancy the conversation has to any of the issues in this case the prosecution respectfully submits is not only non- apparent but non-existent.

DR. HORN: Against this statement of Sir David, I want first to point out the following:

Prime Minister Winston Churchill was at that time Leader of His Majesty's Opposition in Parliament. In this capacity we may attribute to him a sort of official position, particularly since he, to my knowledge, as Leader of the Opposition is even paid a salary.

SIR DAVID MAXWELL FYFE: I am sure that Dr. Horn would be the last person to rely on a point on which he has been misinformed.

Mr. Churchill was not Leader of His Majesty's Opposition at any period and was certainly not from 1936 to 1938, when the defendant Ribbentrop was ambassador. Mr. Attlee was then leader of the Opposition. Mr. Churchill was not in office; was a back bench member of the Conservative Party, an independent member of the Conservative Party at that time.

I did not want my friend to be under any misapprehension.

DR. HORN: At any rate, Mr. President, Mr. Churchill was one of the statesmen best known in Germany. This statement which Churchill made at that time on the occasion of his call at the embassy was immediately reported to Hitler by Ribbentrop and was, in all probability, one of the reasons for Hitler making the statements quoted in the so-called Hoszbach Document, submitted as 386-PS, statements and declarations so surprising to the participants, and in which the prosecution saw the first definite evidence of a conspiracy in the sense of the Indictment.

Furthermore, I would like to say that the British prosecuting counsel, Lt.-Col. Griffith-Jones, mentioned that after the seizure of Czechoslovakia by Germany, people in England and Poland became very concerned. Therefore, negotiations between England and Poland were started, and a pact of guarantee concluded.As a result of this statement by Churchill mentioned already, and of those by other important British statesmen, that England would bring about a coalition against Germany within a few years in order to oppose Hitler with all available means - as a result of these statements, Hitler became henceforth more keenly anxious to increase his own armaments and to prepare strategic plans.For these reasons I consider Churchill's statement extraordinarily important and I ask that this witness be called.

SIR DAVID MAXWELL FYFE: I have stated my point, my Lord. I do not think I can add to it.

THE PRESIDENT: The Tribunal would like to have Dr. Horn's observations, which they have only heard through the microphone, in writing on this subject.

DR. HORN: As the next witnesses I name Lord Londonderry, Lord Kemsley, Lord Beaverbrook and Lord Vansittart. Interrogatories have already been sent out to these witnesses.

SIR DAVID MAXWELL FYFE: These witnesses are being dealt with by interrogatories and we make no objection to that procedure.

DR. HORN: As the next witness I would like to call Admiral Schuster; last address, Kiel.

SIR DAVID MAXWELL FYFE: We object to the calling of Admiral Schuster. The grounds for his being asked for are that he took part in the negotiations which

[Page 276]

led to the German-English Naval Treaty of 1935. Apparently the point that is desired to be made is that the treaty was concluded on this defendant's initiative.

The prosecution submit that that point is irrelevant; that the negotiations before the treaty are irrelevant, and the treaty is there for the Tribunal to take judicial notice of, and on it my friend can found any argument which he desires.

But in general, the prosecution wish to stress that going into negotiations anterior to old-standing treaties would be an intolerable waste of time when there are so many vital issues before the Tribunal.

DR. HORN: In this trial we are discussing the problem of plans and preparations. In this connection it is certainly not inappropriate to hear evidence as to what the German Government, and especially Ribbentrop, had planned and prepared at that time. The planning and preparations which took place within the negotiations leading to the signing of the Naval Treaty, were carried further than just to the conclusion of that treaty. The treaty was considered by von Ribbentrop and Admiral Schuster can bear witness to the fact - to be the first cornerstone in a close alliance between England and Germany. To make clear to the Tribunal these intentions and thereby the policy which the defendant von Ribbentrop pursued, I consider this witness important; and I ask Sir David to modify his position.

SIR DAVID MAXWELL FYFE: I am afraid I cannot. My colleagues and I have considered this matter very carefully and I have put our general position as to pre-treaty negotiations, especially as to treaties of long standing. With the greatest desire to be reasonable, to help Dr. Horn, I am very sorry I cannot, at this point, accede to his request.

GENERAL RUDENKO: I would like to add to what my colleague, Sir David, has stated by the following remarks:

Dr. Horn has requested us to justify our arguments. I believe that there is one fundamental divergence in this matter between the prosecution and the defence: the defence in calling witnesses, tries to give evidence of the defendant's attempts to conclude peace-promoting agreements. We proceed from another fact, namely, the treacherous breaking of concluded agreements and the commission of crimes violating these agreements. It seems to be quite superfluous, to call witnesses to prove that the defendant strove, in view of these considerations, to sign peaceful agreements. The violation of these agreements and their treacherous non-fulfilment are generally known facts.

THE PRESIDENT: Dr. Horn, in order to test the relevancy of this class of evidence, I should like to ask you this question.

Assuming that Ribbentrop did want to make agreements with England and did not wish that Germany should make war on England, what relevancy would that have to the allegation that Germany was planning to make war upon Poland?

DR. HORN: Mr. President, to be able to answer that question conclusively as far as the conduct of the defence is concerned, I would have to go back to the political and diplomatic conditions which existed in the period before the second World War. As to the reasons for calling witnesses, I would not like to enter into arguments on such matters of principle, before I have thoroughly scrutinised all possible evidence at my disposal and formed a definite opinion and a basis for my conduct of the defence. The ruling which the President gave regarding reasons for summoning witnesses - that the Tribunal will help us to procure the witnesses and the evidentiary material - I have understood to mean that for the summoning of witnesses, we only have to state reasons which in all probability would be confirmed by the witnesses themselves after preliminary interrogation.

To make it quite clear, I do not wish to commit myself.

THE PRESIDENT: It is a material question to consider in determining what evidence is relevant. But as you do not wish to commit yourself upon the point, you can proceed.

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