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-Eighth Day: Tuesday, 26th February, 1946
(Part 6 of 7)

[Page 327]

DR. NELTE (Counsel for the defendant Keitel): The Tribunal will recall that the question of hearing the witness Major- General Westhoff has already been under discussion here once before. The prosecution at the time - I have not the document here now - submitted a report regarding the interrogation of Major-General Westhoff, but the Tribunal, on my objection, refused to have this document read in Court.

I do not know whether, as the prosecutor is now speaking of the testimony of Major-General Westhoff, it concerns the same document which the Tribunal previously refused to admit or whether it concerns a new document which I do not know as yet. I draw your attention to the fact that General Westhoff is here in prison; and could be called as a witness on this question.

COLONEL SMIRNOV: Permit me to say, Mr. President . . . .

THE PRESIDENT: Colonel Smirnov, you have heard what Dr. Nelte said. As I understood it - I am not sure if I got the name right - but he referred to General Westhoff's evidence which had been tendered and which had been rejected because the Tribunal thought that if that evidence was to be given, General Westhoff ought to be called. Is it correct to say that the document you are putting in has got nothing to do with General Westhoff at all?

[Page 328]

COLONEL SMIRNOV: Westhoff is only mentioned in one part of the official British report.

THE PRESIDENT: But it is not a report made by General Westhoff, is it?

COLONEL SMIRNOV: That is perfectly correct. I am now submitting an official British report to the Tribunal. Only one passage in the text of the official British report mentions Major-General Westhoff, and has nothing to do with the interrogation of Major-General Westhoff which will be brought up later on.

MR. G. D. ROBERTS: My Lord, perhaps I might assist in this matter - because I am partly responsible for that report - with the kind indulgence of my learned friend, my Russian colleague.

My Lord, the document which is now about to be read is a British official government report under Article 21 of the Charter and the original is properly so certified. It is quite true that General Westhoff's name is mentioned in the report, but it is quite a different document to the one which my French colleagues tendered and which the Tribunal rejected in evidence. It is an official government report.

COLONEL SMIRNOV: That is just what I have been saying, your Honour. This is an official report of the British Government.

THE PRESIDENT: One moment, Colonel Smirnov. Mr. Roberts - I just wish to speak to Mr. Roberts, Dr. Nelte. - Why do you say that it is an official Government report under Article 21 of the Charter?

MR. ROBERTS: Because the original has been handed in and it has been certified by Brigadier-General Chapcott of the Military Department of the Judge Advocate General's Office. I think you have the original.

THE PRESIDENT: Yes, I have the original. Mr. Roberts, to whom was it made, this report?

MR. ROBERTS: My Lord, it was made in connection with the collection of evidence for this Tribunal. As your Lordship sees, it is headed "German War Crimes. Report on the Responsibility for the Killing of 50 RAF Officers", and then it states the sources on which the material has been based. Your Lordship will see on the last page of the report the appendix: "Material upon which the foregoing Report is based:

1. Proceedings of Court of Inquiry held at Sagan. . . .

2. Statements of the following witnesses . . . .

3. Statements from the following Germans . . . .

4. A photostat copy of the official list of dead transmitted by the German Foreign Office to the Swiss Legation. . . .

5. Report of the Representative of the Protecting Power on his visit to Stalag Luft III on 5 June, 1944."

The Tribunal (MR. BIDDLE): Mr. Roberts, was this made for the Tribunal or for the War Crimes Commission?

MR. ROBERTS: It was made for this trial.

MR. BIDDLE: Made for this trial?

MR. ROBERTS: For this trial.

MR. BIDDLE: By a general in the army?

MR. ROBERTS: Yes, my Lord.

MR. BIDDLE: And he reported to whom?

MR. ROBERTS: My Lord, it was then submitted to the British Delegation for this trial.

MR. BIDDLE: You mean the prosecution?

MR. ROBERTS: Yes, my Lord.

MR. BIDDLE: So this is the report of a British general made to the British prosecution?

[Page 329]

MR. ROBERTS: My Lord, with respect, I would not accept the phrase "report of a British general." I would say "a report of a Government department ". It is signed and certified by a British general.


MR. ROBERTS: My Lord, I submit most respectfully that my Lords may exactly read in Article 21 : "The Tribunal shall take judicial notice of official governmental documents and reports of the United Nations".

I submit that this is clearly an official governmental document, a report made by a department of the Army in London, a government department, for the purpose of this trial.

MR. BIDDLE: Then any evidence that was collected and sent in by the Government will be official evidence.

MR. ROBERTS: I think that is so under Article 21, that is, as I read it and as I respectfully submit to your Lordship.

THE PRESIDENT: Do you wish to add anything, Dr. Nelte?

DR. NELTE: Yes, I should like to make a few further remarks.

It is in other words, a report which was drawn up on the basis of testimony by witnesses, among whom, as I understand, was also Major-General Westhoff. I do not challenge the official character of this document, or that you can and must accept it as evidence under the terms of the Charter. But it seems to me that another question is involved here, namely the question of superior evidence. If a witness who is at the disposal of the Court could be eliminated by including his testimony in an official report, then such procedure would not comply with the Tribunal's desire that only the best method to discover the truth should be used.

The witness is at your disposal; the report is not a literal account of what he said, but simply a conclusion in which the accuracy is subject o doubt, whereas it need not remain in doubt. But I believe the defence should also have an opportunity in their turn, to hear and examine a witness, if it is as easily possible as in this case.

THE PRESIDENT: Dr. Nelte, supposing that one of the witnesses who had been examined by one of the committees set up by the Government had made a report not to the Government at all, but an affidavit or something of that sort, and that had been offered to the Court and the witness had been available, the Court might very possibly have refused to entertain that affidavit or report. If, however, that report was the foundation for a government report or for a government official document, then by Article 21, the Tribunal is directed to entertain such a report.

Therefore, the fact that the Tribunal has already said that they would not accept some private affidavit or report of General Westhoff unless General Westhoff were called, is not relevant at all. It is a question whether they ought to entertain a report which you admit comes within Article 21.

DR. NELTE: I do not doubt that your Lordship's view is correct. I should merely like to bring up the question whether, when one has two different types of evidence, namely, the report and the possibility of examining a witness, it would not be preferable to consider questioning the witness, not in order to correct the official report, but in order to clarify what the witness actually said, because from, the report we cannot learn this.

This question is, as you will understand, of tremendous importance for the defendant Keitel, who allegedly issued an order to shoot the escaped airmen, and if a witness is available who could clarify this question, this witness should be heard instead of an official report which actually contains an evaluation.

THE PRESIDENT: But in the first place this report does not proceed only or even substantially upon the evidence of General Westhoff; there are a number

[Page 330]

of other origins of the report, and the second thing is that the whole object of Article 21 was to make government reports admissible and not to necessitate the calling of the witnesses upon whose evidence they proceeded.

DR. NELTE: The other witnesses mentioned in the report were interrogated on other matters in connection with the executions themselves; but on the question of whether Keitel actually issued the order for execution General Westhoff is the only one mentioned in the report who has anything to say.

THE PRESIDENT: Would you repeat that?

DR. NELTE: I said, in that report the witnesses are also mentioned but, as far as I know, they did not make a statement on the question of whether or not Keitel issued an order to shoot the R.A.F. officers. Westhoff was the only one among the witnesses listed who could and did make a statement on that question.

THE PRESIDENT: Do you wish to say anything further in argument upon the admissibility of the document?


THE PRESIDENT: Colonel Smimov.

COLONEL SMIRNOV: It appears to me, Mr. President, that that part of the document which refers to Major-General Westhoff consists of merely one paragraph - namely paragraph 7 of the document in question. This part deals with the initial stage of the perpetration of the crime, namely with the conception and planning of the crime. The document also speaks of other stages in the commission of this crime. Moreover, it is an official document, presented according to Article 21 of the Charter. It seems to me that I have thereby said all that is necessary, Mr. President.

THE PRESIDENT: Do you wish to say anything further, Dr. Nelte?

DR. NELTE: No, thank you. I merely ask the Court to decide; I may have to request that General Westhoff be admitted as a witness to testify that the conclusion drawn in this report does not correspond with what he said.

DR. KUBOSCHOK (Counsel for the Reich Cabinet): May I make a few remarks, a few legal remarks regarding Article 21 of the Charter?

In the criminal procedure of every country we find the primary principle of oral evidence. Only if this is not available, is that part of the proceedings transferred outside the court. In most codes of criminal procedure of the various countries we have a provision similar to that of Article 21 of the Charter that previous decisions of a court should not be re-examined in new proceedings, but that such decisions should be binding.

In this trial the Charter extends this provision to cases which obviously, because of their extent, could not be further discussed here. Therefore the decision that government reports should be considered as evidence is clearly laid down in paragraph 21. It is clear to every jurist that this provision in itself is, in a way, a flaw in the proceedings because through it certain rights are lost to the defendants. On the other hand, one cannot, of course, ignore the argument that there are matters which, because of their extent, cannot be practically discussed in a trial in which the time is limited. Article 21 of the Charter, therefore, gave the Tribunal the possibility of accepting such reports as valid evidence. But this provision is not compulsory for the Tribunal. So far as I can see from the German text before me, it reads that the Tribunal should accept these reports; but it does not say that the Tribunal must do so. Therefore it is in every case left to the discretion of the Tribunal whether the nature of the report makes it advisable to accept such a report in evidence.

We now have here a rather striking case, which, in my opinion, clearly shows that the Tribunal can make use of its discretion and reject this document. The prosecution has taken the position that this subject of evidence could be taken

[Page 331]

care of by a witness. The examination of the witness would have provided the defence with the right of cross- examination. Since, for tactical reasons inherent in the nature of the trial, the witness will not be called, the subsequent transfer of his evidence into a government report means curtailing the right of the defendant to cross- examination, and is thus contrary to the article of the Charter in question.

DR. STAHMER (Counsel for the defendant Goering): It was not until to-day that the accusation was made that Goering knew of or ordered the execution of these officers. I could not take this fact into consideration when I recently offered my evidence because I did not know of it, and I must, therefore, reserve the right to call additional witnesses on this question.

COLONEL SMIRNOV: May I say a few words, Mr. President?

THE PRESIDENT: On the question of the admissibility?

COLONEL SMIRNOV: Yes, Mr. President.


COLONEL SMIRNOV: I consider the arguments put forward by the second defence counsel as entirely incomprehensible from a legal point of view, since he introduces a qualitative distinction into the legal nature of the evidence. According to this counsel, Article 21 of the Charter only deals with evidence of crimes committed on an enormous scale, but does not apply to lesser ones. To me, viewing the matter from a legal point of view, this argumentation appears rotten from the root upwards and I consider that Article 21 of the Charter applies, in toto, to any crime committed by the Hitlerites, whether they be committed on a very large or on a slightly smaller scale. That is all I wish to say, Mr. Presidents.

THE PRESIDENT: The Tribunal will adjourn.

(A recess was taken.)

THE PRESIDENT: Mr. Roberts, the Tribunal would like to know where these appendices are which are referred to in paragraph 9 of the report.

MR. ROBERTS: I think they are with the Tribunal now, in the charge of the officer of the Court.

THE PRESIDENT: They are in the Court now? You can undertake, I suppose, to produce them all, if any of them are not there?

MR. ROBERTS: My Lord, most certainly. I understood that the whole of the material is not necessary, but I believe it is all there, in the original, of course.

THE PRESIDENT: Yes, then, the Tribunal decides that the document will be admitted, and the Tribunal will summon, if he is available - and we think he is - General Westhoff, and that will be, in effect, granting the defendants' application to call General Westhoff, and also to call the officer mentioned in paragraph 3 (b) of the appendix, whose surname appears to be Wieland. I do not know whether you can say where he is.

MR. ROBERTS: I will make inquiries and I will undertake to the Tribunal that we will do everything in our power to get the witnesses that are required for the defence, namely, General Westhoff, who is in Nuremberg, I understand, and General Wieland. I am not certain where he is, but I will find out.


DR. KRAUS (Counsel for the defendant Schacht): Mr. President, you made a remark during the session about which defendants' counsel are very much concerned. If we have understood this remark correctly, it was that private affidavits would not be accepted by the Tribunal. Considering the fact that we

[Page 332]

must offer our evidence now, this question of affidavits is very urgent. That is why I am forced to clarify that question. The defence ....

THE PRESIDENT: Dr. Kraus, I do not think I said that affidavits could not be admitted. What I said was, it might be that affidavits would not be admitted if the witness was available to give direct evidence. That is the rule which we have enforced throughout the trial.

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