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 6 of 8)

[Page 292]

M. DUBOST: May I remind the Tribunal that the documents which we rejected were not rejected, in the first place, as useless, but as not presenting sufficient guarantee as to their origin, as to the conditions under which we obtained the man das to their probative value.

The Tribunal will no doubt remember that a certain number of these documents were rejected by the Tribunal itself. Those which we did not consider are of the same character as those documents which were rejected. We did not submit them because we could not tell you where, when and how they had been discovered. For the most part they are documents that fell into the hands of combat troops in battle, and under the rules of jurisprudence do not offer sufficient guarantee to warrant retention.

In so far as they are still in my possession I am ready to communicate them to defence counsel, it being obvious that they will not attach to them any higher merit, any higher value than I did.

THE PRESIDENT: That may very well be. I think that all Dr. Nelte wants is to see any documents which you have brought, to learn whether he can find

[Page 293]

anything in them that he thinks may help the case of the defendant for whom he appears, and I understand you would not have any objection to his doing that.

M. DUBOST: I would only answer the defence counsel that some of those documents have been rejected by your Tribunal when I presented them.

THE PRESIDENT: Well, of course, it would not apply to documents which have been rejected by the Court.

Very well. We will not decide the matter now. We will consider it.

DR. NELTE: Would the Tribunal announce its decision regarding the first question which I brought up, namely, whether it is sufficient that I refer to documents which have been presented by the prosecution without submitting them myself.

THE PRESIDENT: Yes, Sir David?

SIR DAVID. MAXWELL FYFE: On that point I would like to support Dr. Nelte's suggestion. If a document has already been put in, I should have thought it was right and convenient that counsel for the defence could comment on it without putting it in again and should have full right of comment.

THE PRESIDENT: I think that I have said on a variety of occasions that any document which has been put in evidence, or a part of which has been put in evidence, can, of course, be used by the defence in order to explain or criticise the part that has been put in. It maybe that, as a matter of informing the Tribunal as to the document, it will be found necessary to have part of the document, which has not been put in evidence, put in now in order that it may be translated.

SIR DAVID MAXWELL FYFE: I do not know whether it would be convenient if I indicated to Dr. Nelte the views of the prosecution on his list of documents, or whether he would like to develop it himself. I can quite shortly do that if it would be convenient.

THE PRESIDENT: I think it would shorten things if you would.

SIR DAVID MAXWELL FYFF: A considerable number of the documents in the list fall into that category which has just been mentioned. Documents 3 to 9, 17 and 29, 30 and 31 all appear to be in, and therefore Dr. Nelte may comment in accordance with your ruling.

Then there are a number of documents which are affidavits, either of defendants or intended witnesses: documents 12, 13, 22, 23, 24, 25 and 28.

The Tribunal may remember that in the case of the witness Dr. Blaha, my friend, Mr. Dodd, adopted the practice of asking the witness, "Is your affidavit true" and then reading the affidavit to save time. The prosecution have no objection to Dr. Nelte's pursuing that course, should he so desire, but, of course, where a witness is going to be called as a witness, he will, in the submission of the prosecution, have to verify his affidavit on oath.

THE PRESIDENT: One moment. You mean that, if the witness is here, you have no objection to Dr. Nelte's reading the affidavit and the witness being then liable to cross- examination?

SIR DAVID MAXWELL FYFE: The witness will say, "I agree; I verify the facts that are in my affidavit."


SIR DAVID MAXWELL FYFE: It might save considerable time in the examination-in-chief, and we should all be prepared to co-operate in that.

THE PRESIDENT: Then, is Dr. Nelte agreeable to that course? Is that what he means?

DR. NELTE: Entirely!

THE PRESIDENT: Possibly, Sir David, if the affidavit were presented to the prosecution, they might be able to say that they did not wish to cross-examine. That would save the witness being here or being brought here.

SIR DAVID MAXWELL FYFE: It might be in the case of Dr. Lehmann. I think all the other cases are either defendants or witnesses with regard to whom there are certain points which the prosecution would like to ask.

[Page 294]

Then there are three documents to the use of which there are no objections. 18, 26 and 27.

That leaves a number of documents as to the use of which I am not quite sure at the moment, but it may be that Dr. Nelte will explain how he wishes to use them, and that may remove the difficulty of the prosecution. If the Tribunal will be good enough to look at 1 and 2: 1 is an expert's opinion on State laws concerning the Fuehrer State, and the importance of the Fuehrer Order, and Document 2 is Fuehrer Order, No. 1.

If it is desired to use these so as to controvert Article 8 of the Charter, the prosecution will object.

That is a question of superior orders.


SIR DAVID MAXWELL FYFE: If they are only used to explain the background as a matter of history, that may be a different matter.

Now, the next one is Document 10 - the need for a Ministry of Rearmament, taken from ....

THE PRESIDENT: Even so, Sir David, in your submission, ought we to accept the opinion of an expert on such a point?

SIR DAVID MAXWELL FYFE: No, your Honour. By no means. I am afraid that my second remark really applied to the order of the Fuehrer. That might be used as a background or it might be used for purposes of mitigation or explanation of how a thing took place, but I respectfully agree that the expert's opinion on State laws cannot be used with regard to the jurisdiction of the Tribunal. Of course, the law of any other State may be a question of fact as far as the Tribunal is concerned just as it would be a question of fact in an English court. What is the law of another State? As I say, I want to reserve emphatically the position of Article 8 with regard to these two documents.


SIR DAVID MAXWELL FYFE: Now, Documents 10 and 11 deal with rearmament in other countries. I do not want to prevent the use by the defence of illustrations, but again I reserve the position, most emphatically, that rearmament in other countries cannot be an excuse for aggressive war and would be irrelevant on that point.

Now, 15 and 16 refer to books by Major-General Fuller and Major-General Temperley, who are both ex-officers, who were journalists during this period. As far as any question of fact that is stated in these books, if Dr. Nelte will let us know what the passage is, we shall see whether we could admit it. but the general views of Major-General Fuller and Major-General Temperley we would submit to be irrelevant.

Then, 19, 20, and 21 are books about Austria. Again the prosecution reserves the position that the earlier state of opinion in Austria with regard to an Anschluss is irrelevant when considering the question of the aggressive action in breach of the Treaty of 1936 which took place in 1938. I think, my Lord, that I have now dealt with all the documents and, as I say, they fall into these four groups; with regard to three of these there is nothing really between us in principle and, with regard to the fourth, the prosecution wishes to reserve these various points which I have mentioned. Again I want to make clear that the prosecution does not object to Dr. Nelte's obtaining any of these books for the purpose of preparing his case, but we wish the defence to make clear, at the earliest opportunity, what their position is with regard to their use.

DR. NELTE: With respect to the first three categories, the prosecution agrees with me that I can confine myself to the last category which begins with documents Nos. 1 and 2. One of the fundamental questions of this trial, which at first glance appears a purely legal problem, is the question of the so-called Leader State (Fuehrerstaat) and Leader Order (Fuehrerbefehl). This question has, however, important actual significance here at this trial, and also a factual importance. For

[Page 295]

instance, the defendant Keitel, as a result of his particular position, was to the utmost degree affected by this Leader State principle, and acted accordingly, as he was continuously in personal contact with the incarnation of this principle namely, Hitler. It will, however, I assume, be possible to prove that Article 8 of the Charter is not applicable here.

As to the Leader Order No. 1, Document No. 2, the Tribunal itself will, upon hearing the order, be able to judge whether it bears any relevance.

This order reads:

"Leader Order No. 1 (from Keitel Document Book No. 1)

(a) No one is to have any knowledge of secret matters which do not fall within his sphere.

(b) No one is to obtain more information than he needs for the fulfilment of the task set him.

(c) No one is to receive information earlier than is necessary for the duties assigned to him.

(d) No one is to pass on to subordinates more secret orders or at an earlier date than is indispensable for the attainment of the purpose".

Document No. 1, that is, the expert opinion on the Leader State and Leader Order, in connection with this Leader Order No. 1, is to serve as proof for the fact that there can be no question of conspiracy in the sense of the Indictment. Therefore, I request the Tribunal to admit those two documents as relevant. Documents No. 10 and No. 11, and also to a certain degree, No. 16, are submitted as proof that the principles which the defendant Keitel, as a soldier and a German, considered to be important, namely, rearmament up to a point of securing a respectable position for Germany among the Council of nations, was not only required by the German people, but also appreciated and approved of by important persons abroad. This subject is to be proved by submission of articles by a British, a French and an American author. All three military men, who are held in high repute as writers on military matters. Among these is the article "Total War", by Major-General Fuller, my Document 15, as well as the book by the British Major-General Temperley, "The Whispering Gallery of Europe". Fuller, for instance, writes in his article, i.e. :
"It is nonsense to state that he (Hitler) wanted war. War could not bring him the rebirth of his nation. What he needed was an honourable, secure peace."
The point to be proved here is that any aggressive intentions would of themselves be incompatible with the pronouncements of Hitler and the leading Nazis, if one believed in their sincerity.

The defendant believed in the sincerity of these pronouncements, and to this end he referred to the opinion of important persons abroad.

I think those are the documents to which the prosecution raised certain objections.

THE PRESIDENT: You have not mentioned 19 to 21, which documents are said to reveal a certain state of opinion in Austria.

DR. NELTE: Yes. Those documents - Document 19, "The Cultural and Political Importance of the Anschluss"; Document 20, "The Way Toward the Anschluss"; and the third, "The Anschluss in the International Press," dated 1931, are to prove that the defendant could assume, and was justified in assuming, that the overwhelming majority of Austrian people welcomed the Anschluss with Germany. These are articles and memoranda of the Austro-German Peoples Union, the chairman of which was the Social Democrat Reichstag President Loebe.

THE PRESIDENT: That concludes the documents, does it not?

DR. NELTE: I should like to make only one additional application to the Tribunal, which refers to documents which I have been unable to mention earlier, since they were not submitted until the sitting of 22nd February. I shall now submit this application. It refers to eleven documents, all of which were presented during the Friday sitting in order to prove the complicity of Keitel in the destructions during the retreat, and in regard to forced labour of prisoners-of-war, and

[Page 296]

civilian population. From the contents of these documents submitted by the prosecution, it becomes apparent that, according to evidence I have already offered, a large number of the accusations of the prosecution are to be attributed to the fact that every document which dealt in any way with military matters was simply charged to the O.K.W. and Keitel.

THE PRESIDENT: Dr. Nelte, as I understand it, all these documents have already been put in evidence.


THE PRESIDENT: Well, then they fall into the category to which Sir David agreed. They could be touched on by you.

DR. NELTE: That is correct.

THE PRESIDENT: There is no need to make any fresh application in connection with them.

DR. NELTE: When I made this additional application I had not yet received Sir David's consent. Besides this seems to me to be a unique and particularly convincing case because, on one day, eleven documents were submitted, all of which were used as accusations against Keitel, but which all showed by their contents that they do not apply to him or the O.K.W.

THE PRESIDENT: One moment. There is only one other thing that I wanted to ask you. You asked at an earlier stage for the evidence from Ambassador Messersmith and Otto Wettberg, and in both cases the Tribunal granted you interrogatories. I do not know whether you are withdrawing your application in respect to those cases, or whether you have seen the answers to the interrogatories.

DR. NELTE: I have, in accordance with the suggestion, sent those interrogatories to Ambassador Messersmith as well as to Otto Wettberg. Depending on the replies I shall receive from those two witnesses, I shall or shall not submit them.

THE PRESIDENT: You have submitted the one for Otto Wettberg, haven't you?

DR. NELTE: Yes, but I have not received it back.

THE PRESIDENT: Very well. Would you explain a little bit more what Exhibit No. 1 is going to be? It appears to be the opinion of an expert witness on the meaning of the Fuehrer precept. Is that what you intend?

DR. NELTE: Yes. It is an article, in the field of constitutional law, on the structure and significance of what is known as Leader State - Fuehrerstaat.


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