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 5 of 8)

[Page 288]

DR. NELTE (Counsel for defendant Keitel): Mr. President, may I be allowed to make a remark preliminary to the discussion about the evidence submitted for defendant Keitel. I hope the discussions about the various applications for evidence will thereby be considerably shortened. From my written application you will see that in respect to the majority of the witnesses one main subject of evidence recurs again and again, namely, the position of defendant Keitel as Chief of the O.K.W. and in his other official functions, his personality, particularly also his relations to Hitler, and the clarification of the chain of command within the Armed Forces.

I shall present evidence that the impression of the public and the prosecution regarding the personality of the defendant Keitel, his scope and his activities is incorrect. No name has been so frequently mentioned in the course of these proceedings as that of this defendant. Every document which dealt in any way with military matters was identified with the O.K.W., and the O.K.W., in turn with Keitel. The defendant believes, and I think, with some justification....

THE PRESIDENT: The Tribunal appreciates the general points which you will probably want to argue on behalf of the defendant Keitel, when you come to make your final speech, but it does not appear to the Tribunal to be necessary that you should do so now.

DR. NELTE: I mention it only so that the Tribunal may fully understand my application for all these witnesses. I think Sir David shares this opinion with me - he already discussed it with me on Saturday - and it was my intention to expound in a preliminary way the subject of evidence which otherwise had to be presented in five or six different cases.

THE PRESIDENT: Do you mean, Dr. Nelte, that you will be able to deal with all your witnesses in one series of observations?

[Page 289]

Could you help us, Sir David ?

SIR DAVID MAXWELL FYFE: I think I can help.

Apart from the witnesses who are co- defendants, mentioned by Dr. Nelte, whom of course the Tribunal has already provided, Dr. Nelte asks for Field Marshal von Blomberg, General Halder, General Warlimont and the Chief Staff Judge of the O.K.W., Dr. Lehmann. The prosecution have no objection to these witnesses, because they are called to deal with the position of the defendant Keitel as head of the O.K.W.

With regard to the witness Erbe, who is, I think, a civil servant called on a specific point as to his position in the Committee for Reich Defence . . .

THE PRESIDENT: Have the interrogatories already been granted?

SIR DAVID MAXWELL FYFE: Yes; we have always said that interrogatories would be sufficient and he should not be called as an oral witness.

Then with regard to the next witness, Roemer, whom Dr. Nelte wishes to call, to say that the decree for the branding of Soviet Russian prisoners of war was issued by mistake and retracted at once on the order of Keitel, that is obviously relevant to one matter in the case, and we do not object to that.

We do not object to General Reinecke, who is called on various matters relating to prisoners of war.

With regard to Mr. Romilly, so long as it is confined to interrogatories which have been allowed, and he is not called orally, we have no objection.

My friend, M. Champetier de Ribes, will have a word to say about Ambassador Scapini. I have asked him to deal with that matter.

Then we come to two witnesses, Dr. Junod and Mr. Petersen. At the moment the prosecution cannot see how these witnesses are needed in addition to General Reinecke. Of course they would object if the purpose of the testimony is to show that the Soviet Union did not treat its prisoners of war properly. If that is the purpose, they would object.

The calling of Dr. Lammers has been granted by the Tribunal.

Finally, there are three witnesses who are all called in order to show that, at discussions between Hitler and the defendant Keitel, two stenographers had to be present. The prosecution do not regard that as a very vital part of the case, and if Dr. Nelte will produce an affidavit from one of these gentlemen, then the prosecution are not in a position - and do not desire - to dispute the point. Frankly, if I may say so, and with the greatest respect, we are not at all interested in that point, and therefore will be content with an affidavit if produced.

If I might summarise - and I am merely trying to help Dr. Nelte - the only matters which, as far as the prosecution are concerned, require further discussion are the matter of what the French Delegation will have to say about Ambassador Scapini, my objection to Dr. Junod and Mr. Petersen, and my suggestion as to an affidavit for the last three witnesses. There is very little between us, if I may say so, with respect to Dr. Nelte's witnesses; on the whole they seem to the prosecution to be obviously relevant and in that case we make no objection.

There is one rather sad fact with regard to the witness Blomberg, of which I think Dr. Nelte has been informed. I understand that Field Marshal von Blomberg is very ill at the moment and cannot be brought into Court, so that I am sure, Dr. Nelte, that the defendant Keitel will be the first to accept some method of getting his evidence which will not necessitate von Blomberg being present.

DR. NELTE: I thank Sir David for his kindness, by which my task has been made easier.

I should like to state in addition that in respect to the witness, Dr. Erbe, I shall submit written questions. To the witness Petersen I have already submitted written questions and it depends on the answers received whether I shall call him in person. As to witness Junod, I believe I may say that his examination is relevant because the Soviet prosecution has submitted that an offer to apply the Geneva

[Page 290]

Convention had been rejected by Keitel. Dr. Junod is to be examined as a witness to testify that, by order of the O.K.W. Department of Prisoners of War, he contacted the Soviet Union in order to secure the application of the Geneva Convention, but that this could not be brought about. I believe that if only General Reinecke is to be examined as a witness on this question, it could perhaps be objected that he, as chief of the Department of Prisoners of War, cannot give sufficient testimony, nor testify to what Dr. Junod actually did. Consequently I ask that this witness be approved.

As far as the stenographers are concerned, I ask approval to submit an affidavit.

As to Ambassador Scapini, I should merely like to point out that he was the permanent representative of the French Vichy Government, and that he was particularly concerned with the question of caring for prisoners of war in Germany. I believe that this is an adequate reason for considering him relevant. To be sure, I do not know his address, and I hope that the French prosecution can help me in that regard.

M CHAMPETIER DE RIBES: We see no objection to hearing the former Ambassador Scapini, if his testimony can, in our opinion, have the slightest bearing on the search for truth; but the very reasons which Dr Nelte gives for the calling of this witness seem to me to prove the complete lack of relevance of his testimony. The former Ambassador Scapini, says the counsel for the defence, could point out that he freely exercised his control in the prisoner-of-war camps and moreover that these prisoners of war had a spokesman, but this we are quite willing to grant to the defence. It is perfectly true that Germany had consented to allow the former Ambassador Scapini - who we know was wounded in the war of 1914 and blinded - to visit the camps of prisoners and hear the French prisoners of war, though he could not see them.

But the question is not to find out whether the Germans had been willing to allow a blind inspector to visit the camps. The only question raised by the Indictment is whether, in spite of the visits of this inspector and in spite of the presence of a special spokesman in the camps, there did not occur in these camps acts contrary to the laws of war.

On this point the former Ambassador Scapini could surely give no answer, for obviously nothing happened in his presence. This is why the French prosecution considers that his testimony would shed no light on this search for truth.

DR. NELTE: It was not known to me that Ambassador Scapini was blind. Not he himself, but rather the delegation of which he was head, made regular inspections of the prisoner- of-war camps for French soldiers. It is certain that in prisoner-of-war camps things happened which violated the Geneva Convention, but the question at issue here is whether the defendant Keitel and the O.K.W. as the supreme authority, did, or at any rate, tried to do, all what they, as the highest authorities, could do.

The O.K.W. did not issue orders in the individual camps. It had only to issue instructions as to how prisoners of war were to be treated, and had to permit the protecting powers to visit the camps.

THE PRESIDENT: Would interrogatories be satisfactory, supposing we thought it proper to administer them to M. Scapini?

DR. NELTE: An interrogation in Nuremberg? Could Ambassador Scapini be heard in Nuremberg?

THE PRESIDENT: I was asking whether interrogatories would be satisfactory. I imagine M. Scapini is not in Nuremberg. Written interrogatories, I mean, of course, where I have mentioned them.

DR. NELTE: I assume that first I must interrogate Ambassador Scapini in writing, and that on his answers it will depend whether -

[Page 291]

THE PRESIDENT: Yes, in writing. Will that be satisfactory to you, M. Champetier de Ribes?

M. DE RIBES: Yes, that will be quite satisfactory.

THE PRESIDENT: I think perhaps we might adjourn now, Dr. Nelte, until a quarter past two.

(A recess was taken)

THE PRESIDENT: I think, Dr. Nelte, you had really finished with your witnesses, had you not?

DR. NELTE (Counsel for defendant Keitel): Yes, I think so. I must only reserve the right on what I may have to state after the Soviet prosecution have finished presenting their case - whether I still may wish to call this or that witness. As to the documents I should like to put a few questions which are of particular interest for me - or, rather, for the defendant Keitel.


DR. NELTE: The Tribunal knows my main subject of evidence. In order to prove that in many cases the prosecution are wrong in assuming the O.K.W. and the defendant Keitel to be responsible, I can refer to a great many documents which have been presented by them.

I take it that these documents are not to be submitted by me as evidentiary material, as they have already been put in. I ask the Tribunal for examination of these documents and for a ruling that in my pleadings on behalf of the defendant I may refer to such documents without having to submit or quote them.

I should like to add that the Tribunal, having been informed about the structure of the Armed Forces or parts of them and about the competencies of the various commands will itself be able to judge which of the documents submitted are not suitable for supporting the allegations of the prosecution regarding the responsibility of the defendant Keitel.

I am also convinced that the Tribunal, in its findings, will give careful consideration to any document relevant to the question of guilt, even if the defence does not submit such documents, and even if the defence cannot give a comprehensive presentation in view of the extremely large number of documents - there are thousands relating to the defendant Keitel.

Furthermore, I should like to submit to the Tribunal another question, which is important for the presentation of evidence on behalf of the defendant Keitel, and which is also of general importance.

During the session of 1 February, 1946, the French prosecutor made the following statement:

"Chapter four and the last will bear the heading:'The Administrative Organisation of Criminal Action.' For the fourth chapter I might point out that the French Delegation examined more than 2,000 documents, counting only the original German documents, and of these I have kept only about fifty."
According to the opening address of the American Chief prosecutor, there can be no doubt that these 50 documents were selected merely from the point of view of incriminating the defendant. On 11th February, if I remember correctly, I addressed myself to the French prosecution with a request to place at my disposal for examination the remaining 1,950 documents, which the French prosecution had not used.

To date, I have received no answer. The Tribunal will appreciate the difficulties of my position. I know there are documents there which I am sure contain exonerating facts. Yet I am not able to specify these documents. I beg the Tribunal, therefore, for a ruling in this matter - that the prosecution should place at my disposal those documents for my perusal.

THE PRESIDENT: With reference to these particular documents that you are asking for, are you going to say anything about them

[Page 292]

DR. NELTE: I do not know the contents of these documents. I only know that the French prosecution had these 2,000 documents.

THE PRESIDENT: Well, if you wish to deal with that now, I will ask the French prosecutor to answer what you have said.

DR. NELTE: If your Honour pleases, I leave it to the Tribunal whether they wish to examine this question in camera or whether it can be dealt with here now.

THE PRESIDENT: Well, I think we had better hear from the French prosecutor now.

M. DUBOST: A certain number of documents of doubtful origin were in our hands at the time that we were beginning to prepare our case. We have eliminated all documents which could not bear serious critical examination. We have rejected all those that were considered to be insufficient proof. At the end, about 50 documents remained, which have been referred to by my colleagues and which appeared relevant. These 50 documents have, moreover, not all been accepted by the Tribunal, some of them being rejected, as well as, if I remember rightly, three or four of whose origin we were not quite sure. In these circumstances, it is absolutely incorrect to say that we have kept 1,950 documents from the defence.

We handed over to the Tribunal, and so to the defence, the 50 documents which in themselves seemed to us to have sufficient probative value.

If I understand this request of the defence correctly they wish the Tribunal to make accessible to them documents of which some have been rejected by the Tribunal itself as not having sufficient probative value or as not being sufficiently authenticated.

The Tribunal will decide whether this request should be granted. As far as I am concerned, I most emphatically oppose this application because it would mean taking into account documents which on examination by us, and, when submitted, by the Tribunal, did not prove to be sufficiently authentic.

THE PRESIDENT: Yes, but M. Dubost, the position is this: There were a large number of documents which the counsel for the French prosecution said that they had examined, and the French prosecution, in the exercise of their discretion, thought it unnecessary to refer to more than a certain number of them; but it is only the French prosecution which has exercised their discretion about those documents, and what Dr. Nelte is asking for is to see them for the purpose of learning whether there is anything in the documents which assists his case. Would the French prosecution have any objection to that?

It may be that some of the documents are no longer in the possession of the French prosecution, but those that are in their possession, would the French prosecution object to Dr. Nelte's seeing those?

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