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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
12th March to 22nd March, 1946

Eighty-Fifth Day: Tuesday, 19th March, 1946
(Part 8 of 8)

[Page 239]


DR. DIX (counsel for defendant Schacht): I should like to make one request, that at least the technical possibilities - that at least the counsel for these defendants who are being cross-examined also be given the document that is submitted to the defendant, so that they are in a position, just as the Tribunal is, to follow the examination.

If Mr. Justice Jackson says that it is his opinion that it would be right for the defence counsel - in this case my colleague Stahmer-to receive this document only after the examination - in this case of Goring - has ended I beg, earnestly, in the interest of the dignity and prestige of the defence, to take objection to this suggestion of Mr. Justice Jackson's. I do not believe that he means by that to insinuate that the defence counsel would be able - having these documents in its hands at the same time as the Tribunal and at the same time as the witness - somehow through signs or otherwise to influence the defendant and thereby disturb the cross-examination by Mr. Justice Jackson, i.e., by the prosecutor. Mr. Justice Jackson certainly did not mean that, but one might draw that conclusion.

I therefore make this request: If in the cross-examination, for the purpose of the cross-examination, in view of the altogether justified element of surprise, a document is presented to a witness that at the same time is presented to the Tribunal, that at least a copy of this document be given at the same time to the defence counsel, the defence counsel concerned, either the one who has called the witness or the one whose defendant is in the witness box, so that he can have some idea of what the witness is being confronted with, for Goering could read this document, but Dr. Stahmer could not. In other words, he was not in a position to follow the next part of Mr. Justice Jackson's cross-examination. That is certainly not intended and would certainly not be fair and I should therefore like to ask Mr. Justice Jackson to reply to my suggestion and my application, in order to arrive at an understanding and thereby to relieve the Tribunal of the decision on a question that to me seems self- explanatory.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal is inclined to think - the Tribunal certainly thinks - that you are perfectly right, that there is no necessity at all, as I have already stated, to disclose the document to the defendants before you use it in cross-examination. But, at the time you use it in cross-examination, is there any objection to handing a, copy of it to the counsel for the defendant who is being cross-examined?

MR.JUSTICE JACKSON: In some instances it is physically impossible because of our situation in reference to these documents. A good many of these documents have come to us very late. Our photostatic facilities are limited.

THE PRESIDENT: I am not suggesting that you should hand it to all of them, but only to Dr. Stahmer.

[Page 240]

MR. JUSTICE JACKSON: If we have copies, I have no objection to doing that, but if we do not have them in German - our difficulty has always been to get German copies of these documents.

DR. DIX: May I say something else. If it is not possible in German, then it should at least be possible in English, for one English copy will certainly be available. Furthermore, if it is a question of German witnesses, as Goering, the document will be shown him in German anyhow; it will certainly be shown the witness in German. I believe that will surely be possible.

(Dr. Siemers approaches the lectern.)

THE PRESIDENT: We do not really need to hear more than one counsel on this sort of point. I have already ruled upon your objection, which was that the document should be produced beforehand. The Tribunal has already ruled that that objection should be denied.

DR. SIEMERS (counsel for the defendant Raeder): Mr. President, I am sorry, my motion was that the defence counsel should receive these documents at the same time as the Tribunal. I am not of the opinion expressed by Dr. Dix, that only one defence counsel should receive it. If it is a report regarding the Reich Defence Council, then it is a document important to several defendants. One copy is therefore not sufficient, but each defence lawyer must have one. I believe that Mr. Justice Jackson ...

THE PRESIDENT: But not at this moment. There are, as we all know, the very greatest difficulties in producing all these documents, and extraordinary efforts have been made by the prosecution and the translating division to supply the defendants with documents, and with documents in German, and it is not necessary that every member of the defence counsel have these documents at the time the witness is being cross- examined. I am sure the prosecution win do everything they can to let you have the documents in due course - any document that is being used.

In the opinion of the Tribunal it is perfectly sufficient if one copy of the document is supplied to the counsel for the witness who is being cross-examined. As I say, the prosecution will doubtless let you have copies of these documents in due course.

You are appearing for the defendant Raeder, and the defendant Raeder, I am afraid, at the present rate will not be in the witness box for some time.

DR. SIEMERS: The result of that is that the defence counsel, who is not momentarily concerned, cannot understand the cross-examination. As to the technical question, I ask the Tribunal to consider that I cannot follow Mr. Justice Jackson on this technical point. The document is mimeographed by means of a stencil. In mimeographing it makes no difference at all whether 20, 40, 80 or 150 copies are produced. It makes no difference from the point of view of time, except perhaps four or five minutes. I believe for this reason that one can hardly appeal to the technical difficulties in this matter.

THE PRESIDENT: Counsel for the prosecution will consider what you say, but no rule has been made by the Tribunal that every document should be supplied to every counsel during cross-examination.

THE DEFENDANT: I should like to say again in regard to the document that this is not...

MR. JUSTICE JACKSON: May I respectfully ask that the witness be instructed to answer the question and reserve his explanations until his counsel re-examines him. Otherwise this cross-examination cannot successfully be conducted in reasonable time.

THE PRESIDENT: I have already explained, on several occasions, that it is the duty of defendants when they are in the witness-box, and the duty of witnesses, to answer questions directly, if they are capable of being answered directly, in the affirmative or in the negative; and if they have any explanation to make afterwards, they can make it after. answering the question directly.

[Page 241]


Q. I call your attention to Item 3, under 11, "Finances," reading as follows:

"Very critical situation of the Reich Exchequer. Relief initially through the billion imposed on the Jews and through profits accruing to the Reich from the Aryanisation of Jewish enterprises."
You find that in the minutes, do you not?

A. Yes, that is there.

Q. And you find the minutes signed by Wormann, do you not?

A. No, that is not true. I beg your pardon. Here on the photostat Wormann has signed it, that is not Bormann. I know Bormann's signature well, it is quite different.

Q. I said Wormann.

A. Wormann, yes.

Q. All right, my poor pronunciation. Well, was it not a fact that you set up a working committee under the Reich Defence Council which did meet from time to time and did carry on certain work?

A. I have already explained recently that was the committee of departmental chiefs.

Q. And I call your attention to Document 405-EC, minutes of a meeting of the Working Committee of the Reich Defence Council, meeting No. 10.

A. I understood the President to say before, that when I have answered the question I can add an explanation that seems necessary to me. Now that I have clearly answered your question with regard to the first document, I want now to stress once again that this was not a meeting of the closed Reich Defence Council but a general calling together of all Ministers, State Secretaries and numerous other persons. And that I began my statements as follows:

"I. Organisation of the Reich Defence Council: The Reich Defence Council was already, by decision of the Cabinet of 1933 and 1934, called into being; but it has never met. Through the Reich Defence Law of 4th September, 1938, it was re-established. The Chairman is the Fuehrer, who has commissioned General Field-Marshal Goering his permanent deputy."
Concerning the Reich Defence Council, about which we have been talking, consisting of Schacht - or rather of the triumvirate, it is attested here in writing once more, as I have correctly said, that this Council never met. I ask to have the question about the second document repeated, as I have forgotten it.

Q. You testified that the movement into the Rhineland had not been planned in advance.

A. Only a short time in advance, I emphasised.

Q. How long?

A. As far as I recall, at the most two to three weeks.

Q. Now, I call your attention to the minutes of the tenth meeting of the Working Committee of the Reich Defence Council, Document 405-EC, toward the end of that document, the discussion on 26th June, 1935, which reads as follows ...

A. May I ask what page? This document is very long and is new to me.

What page, please, otherwise I shall have to read the whole document.

Q. Turn to the last paragraph and we will work backwards.

"Commitment to writing of directives for mobilisation purposes is permissible only in so far as it is absolutely necessary for the smooth execution of the measures provided for the demilitarised zone. Without exception such material must be kept in safes."
Do you find that part?

A. This document that has been handed to me contains alternating statements of various individuals, that is, a dialogue. May I ask once more

[Page 242]

The last paragraph contains nothing of what you have stated, there must apparently be a difference between the German and English texts. The last paragraph here is altogether irrelevant. Where, please, am I to read in the document?

Q. Do you find the third paragraph from the end? If my document is correct we have got the same document.

A. You must tell me who was speaking. For different persons speak here.

(A member of the prosecution indicates the place in the document for the witness.)

Now it has been shown to me. Under the name Jodl. I have to read it through first.

Q. Do you find this:

"The demilitarised zone requires special treatment. In his speech of 21st May, 1935, and in other statements, the Fuehrer and Reich Chancellor declared that the stipulations of the Versailles Treaty and the Locarno, Pact regarding the demilitarised zone would be observed."
Do you find this?

A. Yes.

Q. And do you find the next paragraph:

"Since at present international entanglements must be avoided under all circumstances, all urgently needed preparations may be made. The preparations as such, or their planning, must be kept in strictest secrecy in the zone itself as well as in the rest of the Reich."
Do you find this?

A. Yes.

Q. And you also find:

"These preparations include in particular" - (a) and (b) not important to my present question - "(c) Preparation for the liberation of the Rhine."
A. Oh, no, here you have made a great mistake. The original phrase - and this alone is the point in question - is: "Preparation for the clearing of the Rhine." It is a purely technical preparation that has nothing at all to do with the liberation of the Rhineland. Here it says, first, mobilisation measures for transportation and communications, then "(c) Preparation for the clearing of the Rhine," i.e., in case of mobilisation preparations the Rhine is not to be overburdened with freighters, tugboats, etc., but the river has to be clear for military measures. Then it continues: "(d) Preparation for local defence," etc. Thus you see, it figures among small, quite general, ordinary and usual preparations for mobilisation. The phrase used by the prosecution ...

Q. Mobilisation, exactly.

A. That, if you remember, I stressed clearly in my statement, that in the demilitarised zone general preparations for mobilisation were made. I mentioned the purchase of horses, etc. I only wanted to point out the mistake regarding "clearing of the Rhine," which has nothing to do with the Rhineland, but only with the river.

Q. Well, those preparations were preparations for armed occupation of the Rhineland, were they not?

A. No, that is altogether wrong. If Germany had become involved in a war, no matter from which side, let us assume from the Eak, then mobilisation measures would have had to be carried out for security reasons throughout the Reich, in this event, even in the demilitarised Rhineland; but not for the purpose of occupation, of liberating the Rhineland.

Q. You mean the preparations were not military preparations?

A. Those were general preparations for mobilisation, such as every country makes, and not for the purpose of the occupation of the Rhineland.

Q. But were of a character which had to be kept entirely secret from foreign Powers?

[Page 243]

A. I do not think I can recall reading beforehand the publication of the mobilisation preparations of the United States.

MR. JUSTICE JACKSON: Well, I respectfully submit to the Tribunal that this witness is not being responsive, and has not been in his examination, and that it is ...

(The witness interposes a few words here.)

... it is perfectly futile to spend our time if we cannot have responsive answers to our questions.

(The witness interposes slightly here.)

We can strike these things out. I do not want to spend time doing that, but this witness, it seems to me, is adopting, and has adopted, in the witness-box and in the dock, an arrogant and contemptuous attitude toward the Tribunal which is giving him the trial which he never gave a living soul, or dead ones either.

I respectfully submit that the witness be instructed to make notes, if he wishes, of his explanations, but that he be required to answer my questions and reserve his explanations for his counsel to bring out.

THE PRESIDENT: I have already laid down the general rule, which is binding upon this defendant as upon other witnesses. Perhaps we had better adjourn now at this stage.

(The Tribunal adjourned until 20th March, 1946, at 10.00 hours.)

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