The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
27th February to 11th March, 1946

Seventy-Third Day: Monday, 4th March, 1946
(Part 3 of 7)

[Page 136]

SIR DAVID MAXWELL FYFE: Certainly. With regard to Eigruber, No.8, he is no longer in Nuremberg, and he is being held as a probable defendant in the case concerning Mauthausen Camp, which will be dealt with by a military court, and therefore the prosecution suggests that in these circumstances, as he is one of this group dealing with concentration camps in general and Mauthausen in particular, he ought to be dealt with by interrogatories.

Then with regard to Hoettl, No. 9, he deals with two aspects of one point, that is, that Kaltenbrunner on his own initiative ordered the surrender of the concentration camp of Mauthausen, and that he took steps to induce Himmler to release people from concentration camps. These seem to be general points that again might be conveniently dealt with by interrogatories.

And the same applies to the witness von Eberstein, who deals with the point that Kaltenbrunner is alleged not to have given an order to destroy the concentration camp at Dachau and that he did not give an order to evacuate Dachau. The prosecution suggest that these ought also to be interrogatories.

With regard to the next witness, Hoellriegel, the prosecution make no objection to further cross-examination, and respectfully suggest to the Tribunal that he will be able to deal with the question of Mauthausen, which is one of the main questions that this whole group of witnesses is called to deal with.

DR. KAUFFMANN: Maybe I can say something to that . . .

THE PRESIDENT: Are you in agreement with No. 12, in the same group?

SIR DAVID MAXWELL FYFE: No. 12 is not in the same group, because he deals with the question of Kaltenbrunner's relations with Eichmann and with reports he received regarding the action against the Jews. We have no objection to this witness being called for cross-examination, as Dr. Kauffmann did not cross-examine him.

THE PRESIDENT: Yes, Dr. Kauffmann?

DR. KAUFFMANN: Concerning the witness Eigruber, No. 8, may I point out that this witness is here in Nuremberg. However, I agree that interrogatories be sent. The subject of the evidence itself seems to me decidedly relevant, for what Eigruber is supposed to testify is neither more or less than the fact that the concentration camp at Mauthausen was directly supervised by Himmler through Pohl and the commander of the camp. Kaltenbrunner denies the possession of exact knowledge regarding Mauthausen. The witness Hoettl . . .

THE PRESIDENT: You were in error in saying he was here in Nuremberg. Sir David said he has been removed from Nuremberg for the purpose of trial by a military court. So perhaps you will not object to interrogatories in that case.

DR. KAUFFMANN: Yes. The witness Hoettl is, in my opinion, an important witness. As we know, Kaltenbrunner is also accused of having participated in the conspiracy against the peace. Here I intend to prove that Kaltenbrunner

[Page 137]

conducted an active peace campaign ever since 1943. An important name in this connection is Mr. Dulles. He is, according to Kaltenbrunner, the late President Roosevelt's confidential agent. Mr. Dulles was in Switzerland. According to Kaltenbrunner, meetings between them constantly took place with this object. I believe that this subject of evidence is relevant.

THE PRESIDENT: You mean that you want Dr. Hoettl in person, not by way of interrogatories?

DR. KAUFFMANN: Yes, if I may ask for that.

THE PRESIDENT: The Tribunal will consider that.

DR, KAUFFMANN: Witness No. 10, General of the Police Eberstein, is called to prove that the statement of another witness of the name of Gerdes is untrue. The Tribunal will perhaps remember that the prosecution submitted an affidavit by a man named Gerdes who was an important figure in Munich. He was the confidential agent of the former Gauleiter of Munich. In his affidavit, Gerdes accuses Kaltenbrunner of ordering the destruction of Dachau by bombing. Kaltenbrunner emphatically denies that.

THE PRESIDENT: That is a matter which could be clearly dealt with by interrogatories, whether or not Kaltenbrunner did give an order to destroy a concentration camp, or an order to evacuate Dachau. Surely those are matters which admit of proof by interrogatories.

DR. KAUFFMANN: I agree. The same problem arises in connection with the next witness, No. 11 the witness Hoellriegel, who has already been heard. Am I to have the opportunity of speaking to this witness before he is cross- examined? Kaltenbrunner denies that he ever saw gas chambers, etc.

THE PRESIDENT: Dr. Kauffmann, is not No. 11 really cumulative to No. 6, whom you particularly wanted to call?

DR. KAUFFMANN: Yes, Mr. President, certainly.

THE PRESIDENT: Anyhow, the Tribunal will consider the question whether you ought to be given the right merely to cross-examine or to recall as your own witness, with reference to 11 and 12.


Just a word about witness No. 12. Eichmann, as is well known, was the man who carried out the whole extermination operation against the Jews; and Kaltenbrunner's name has been mentioned in connection with this operation. Kaltenbrunner denies it. For that reason I consider Wisliceny a relevant witness.

THE PRESIDENT: That concludes that group. What about the other ones, Sir David? Are they in the same category?

SIR DAVID MAXWELL FYFF: Not quite, but I think it might be convenient if I deal with them.

Dr. Mildner, No. 13, is sought to testify that Kaltenbrunner did not authorize the chief of the Gestapo to sign orders for protective custody or internment, and I should submit that in view of the previous evidence of Scheidler and No. 4, Neubacher, Dr. Mildner's evidence is cumulative and that interrogatories would suffice.

As to Schellenberg, No. 14, I have already said that the prosecution make no objection to his recall for cross- examination.

Finally, Dr. Rainer. We do object to that request, because the object of his testimony, that Kaltenbrunner recommended to the Gauleiter of Austria not to oppose the advancing troops of the Western Powers and not to organize Werewolf movements, is in our submission irrelevant to the issues before this Tribunal.

THE PRESIDENT: Yes, Dr. Kauffmann?

[Page 138]

DR. KAUFFMANN: The witness Dr. Mildner, No. 13, is here in Nuremberg, in custody. I have asked to call this witness because he has submitted an affidavit containing certain accusations against Kaltenbrunner which Kaltenbrunner denies, I do not think that an interrogatory can clear up these difficulties.

Now, No. 14 . . .

THE PRESIDENT: Dr. Mildner has submitted an affidavit?

DR. KAUFFMANN: Yes, sir. There is a reference in the Indictment to an affidavit made by Dr. Mildner. I believe it was on 3rd January. The witness's name was mentioned in connection with the charges against Kaltenbrunner. There are one or two affidavits . . .

THE PRESIDENT: But if the affidavit has not been produced to the Tribunal, what have we got to do with it? We have not seen it, at least in my recollection.

DR. KAUFFMANN: Yes, sir.

THE PRESIDENT: You know about it, Sir David?

SIR DAVID MAXWELL FYFE: I have not been able to trace this affidavit of Dr. Mildner's. I do not remember it, but I will willingly check the reference that Dr. Kauffmann has given.

THE PRESIDENT: Of course, if the prosecution has used the affidavit, then you would have no objection to the witness being called for cross-examination?

SIR DAVID MAXWELL FYFE: Well, in general, no. The reason why I am rather surprised is that usually that point has been taken when it is sought to use the affidavit. The defence counsel involved has asked for the production of the witness, but I will have it looked into, this particular point; but in general the Tribunal may take it that unless we put forward a special point, where an affidavit has been given and where we have not argued to the Tribunal previously, it is a very good case for the witness being brought here, if it is convenient.

THE PRESIDENT: I did not understand that Dr. Kauffmann was saying that the affidavit had actually been put in by the prosecution, but there was some reference made to it. Is that right, Dr. Kauffmann?

DR. KAUFFMANN : It won't take me long to look it up. I have the files for 3rd January here.

(Here Dr. Kauffmann looked through a file of papers.)

THE PRESIDENT: Dr. Kauffmann, we will give you an opportunity for looking that up. We will adjourn now for ten minutes.

(A recess was taken.)

DR. KAUFFMANN: The name of Mildner appears in the transcript of 2nd January, not in the form of an affidavit but in the form of a letter written by a third person and this letter is only mentioned in connection with Mildner's name , it is not an affidavit. I should like to request that Mildner be interrogated in writing.

Now turning to witness No. 15.


DR. KAUFFMANN: We have already dealt with No. 14.

THE PRESIDENT: Oh, you have already dealt with that? Very well, then, Fifteen.

DR. KAUFFMANN: Witness No. 15 is Rainer, who was a former Gauleiter I should like to request that this witness be heard as well. He is in Nuremberg. The subject of the evidence seems important to me. In the case against Kaltenbrunner, though he is not expressly charged with matters relative to peace and violations of peace, yet an effort on the part of the defendant to prove that he has done everything in his power to prevent further bloodshed seems to me relevant.

[Page 139]

THE PRESIDENT: Would an interrogatory satisfy you for that witness?

DR. KAUFFMANN: Yes, my Lord.


DR. KAUFFMANN: I have not yet submitted any documents, Mr. President. Later on, I may present some affidavits, but as I have not yet received them I cannot present them at the moment.

THE PRESIDENT: The Tribunal understands, Dr. Kauffmann, that you wish to reserve for yourself the right to apply to put in documents at a later stage.

DR. KAUFFMANN: Yes, I request that.

THE PRESIDENT: The Tribunal will consider that and let you know when they make the order.

Yes, Dr. Thoma?

SIR DAVID MAXWELL FYFE: Dr. Thoma suggests that we deal with the document list.


SIR DAVID MAXWELL FYFE: On the first six documents, which are quotations from various books on philosophy, the prosecution submit that they are irrelevant to the question of the ideology propounded by the defendant Rosenberg, on which the prosecution base part of the case against him.

Of course, if the purpose is merely that Dr. Thoma would quote from such books in making his speech and if he would let us know the passages he wants to quote so they can be dealt with mechanically, we do not make any anticipatory objection.

I think that takes us up to No. 6, which are purely general books on philosophy. The prosecution view with some dismay all these books being put in evidence and the prosecutors having to read them.

I think I have made the position quite clear that if Dr. Thoma wishes to use them to illustrate the argument, and if he lets us know the passages, we make no general objection, but we object to their being put in as evidence, as not being relevant to the matters before the Tribunal.

DR. THOMA (counsel for the defendant Rosenberg) : I do not think that it is possible without a consideration of world philosophy before Rosenberg's time to understand the morbid psychological state of the German people after their defeat in the first world war. Unless this psychological condition is appreciated, it is impossible to understand why Rosenberg believed that his ideas could help him. I am extremely anxious to show that Rosenberg's theories were representative of a phase of contemporary philosophy taught in similar form by many other philosophers both at home and abroad. I am extremely anxious to refute the charges made against Rosenberg's ideology as degenerate and - I must quote the expression - a "smutty ideology". I have to bear in mind that the members of the prosecution, especially M. de Menthon, who has made a special study of the National Socialist ideology, made the very natural mistake of confusing the extravagances and abuses of this ideology, usually dubbed "Nazi-ism," with its real philosophic content. The French Revolution of 1789 was in the same way, I believe, represented by neighbouring peoples as a disaster of the first magnitude; and all the rulers in Europe were called upon to fight against it.

I believe that the Tribunal was especially impressed by M. de Menthon's statements, which represented he Nazi ideology as having no spiritual value and described it as a dangerous doctrine. I think we must allow the possibility of its being taught in other countries as well at that time. I should like, therefore, to ask permission to present the philosophical systems of the time in question, by which I mean the views expressed by other philosophers on Rosenberg's main concepts, especially the question of blood or race; the soil as a fact of nature and as political and economic

[Page 140]

living-space. Science declares that these ideas are based on the irrational presentation of natural and historical facts. They cannot be dismissed for that reason as anti-scientific, although they may be disturbing to rationalism and humanism.

I should like in particular to prove that these ideas have been respected and developed by rational and empirical science on account of their significance; and that they have been put into practice by other countries in their policy - a fact which I think is important. I need only remind you of the USA Immigration Laws, which also give preference to particular races.

SIR DAVID MAXWELL FYFE: As I understand Dr. Thoma, he wants to use the teachings of other philosophers as illustrations and arguments. If he is going to quote from them, then all that the prosecution ask is that he tell us which passages he is going to quote, but we suggest that it is not relevant for us to go into an examination of, say, M. Bergson's book as a matter of evidence.

It is a perfectly clear distinction, and I suggest that Dr. Thoma will be well able to develop the point which he has just put with the limitation which I have just suggested.

THE PRESIDENT: Dr. Thoma, the Tribunal would like to know what it is that you actually propose. Are you proposing to put in evidence certain passages from certain books and that the Tribunal should read them or are you simply asking for the production of books so that you may consult them, read them and then incorporate in your argument certain ideas which you may gather from the books?

DR. THOMA: I ask the Tribunal to note - officially, at least - the contents of the books which I shall submit. I shall not read all these quotations from the books, but I shall ask the Tribunal to note the outlines. I think it is important for the Tribunal to have the passages quoted from these books actually before them, so that they may have a clear picture of the philosophical - and particularly of the ethical situation - of the German people after their defeat in the World War.

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