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-Eighth Day: Friday, 22nd March, 1946
(Part 2 of 7)

[Page 336]

SIR DAVID MAXWELL FYFE: I did not catch that. I am sorry, my Lord, I should have spoken earlier. I gather that these questions are directed to the Hermann Goering Division. The defendant never dealt with that point when he was being examined in chief; and, therefore, I never dealt with it in cross-examination, because the point had not been raised. It is, therefore, my submission that it is quite inadmissible for the matter to be raised in re-examination.

THE PRESIDENT: You must remember, Sir David, that the practice in foreign countries is not the same as the practice in the United States and in England; and although it is perfectly true that Dr. Stahmer, according to the rules of England at any rate, would not be able to raise this point in re-examination, we are directed by the Charter not to deal technically with any question of evidence. It may be you will have to ask him some questions thereafter in cross-examination, although I hope that will not be necessary, in view of the evidence of the witness Kesselring.

SIR DAVID MAXWELL FYFE: I considered that point, but I only wanted to make it clear that the prosecution has not dealt with this point at all, because it had not been raised previously.

[Page 337]

THE PRESIDENT: No: neither in the examination nor in the cross-examination.

SIR DAVID MAXWELL FYFE: Nor in the cross-examination.

THE PRESIDENT: Sir David, I had already noticed the point that the question had not been raised in the evidence of Hermann Goering.

DR. STAHMER: May I, in explanation, assert that I received the document only yesterday and consequently could not take any attitude earlier toward this question, which has been dealt with already by the prosecution. THE PRESIDENT: But, if my recollection is correct, the witness Field-Marshal Kesselring raised this very point himself, and therefore the point was obvious and could have been raised in examination in chief, in which case it could have been dealt with by the defendant Goering. It does not depend upon any particular document; it depends upon the evidence of the Field-Marshal Kesselring, who said that he was by-passed - I think the word as it was translated was that he was by-passed - between the Division Hermann Goering and the defendant Goering, although the Division Hermann Goering was under his command. So it has nothing to do with any document.

DR. STAHMER: May the witness continue, Mr. President?


THE WITNESS HERMANN WILHELM GORING: The division was under my command only as far as personnel, commissioning of officers, and equipment was concerned but not as to its employment. I did not receive reports daily, but at intervals, regarding events, losses, replacements. That, on the whole, was all the connection I had with that division. I could not give any orders for its employment, since it was under the command of parts of the Army.

Q. Did you receive a report regarding the events at Civitella?

A. No, I did not receive that report. I have learned of it for the first time here from the affidavit of an Army General who was in command of that division, and who was also responsible for these matters, and who apparently is trying now to shift that responsibility to the division and, because of the name of the division, to me.

Q. Your relationship to Hitler and your influence upon him has again been touched upon during cross-examination. Will you please summarise the facts briefly by particular periods, which are necessary to form an opinion on that relationship?

A. I have already pointed out during the cross-examination that a very long period is involved here. In 1923, when I was an S.A. leader, my relationship was normal. Then there is a long interval to 1931.

MR. JUSTICE JACKSON: May it please the Tribunal: It seems to me, in the interests of time, highly objectionable to allow the witness now to summarise. He was given the advantage of answering any questions he wanted to as he went along. It seems to me that when he has covered a subject at least once - and as a matter of fact he covered this one four or five times in an address at nearly every question that would permit - that that at least should bring us to the end of that subject. It was exhausted.

The matter of time here is a grave matter. By our calculation - a careful calculation - of the witnesses which have been allowed, this trial will now project into August. It does not seem right that we should allow him to play this game both ways, to make his speeches during the cross- examination and then to sum them up again afterwards.

THE PRESIDENT: Dr. Stahmer, the Tribunal has allowed you to ask questions which, strictly speaking, are not admissible in re-examination and I want to make it clear to you what questions are admissible in re-examination - only those which arise out of the cross-examination. As to this particular question, the defendant Goering was allowed to make what were really speeches in his examination in chief without any interruption whatever and he went over the whole history of the Nazi regime from its inception until the end of the war,

[Page 338]

and the Tribunal does not consider that he ought to be at liberty to go over the same ground again in re-examination.

DR. STAHMER: Mr. President, I had merely put that question because up to now it had not been dealt with comprehensively and I think it necessary, in order to form an opinion of the defendant and his attitude during that time, to have a comprehensive and coherent account of this matter which in my opinion is so important for the decision to be made in this trial. If, however, the Tribunal objects to this question, I must submit to that decision and withdraw the question.


Q. I have another question. During your examination, you stated, regarding certain accusations, that you want to assume responsibility for them. How is that to be understood?

A. As to responsibility, one must differentiate between formal and actual responsibility. Formally, I bear responsibility for that which was done by those departments and offices which were under my command. Although I could not possibly have seen or known beforehand everything that was issued or discussed by them, I must nevertheless assume formal responsibility, particularly where we are concerned with the carrying out of general directives given by me. Actual responsibility I see in those cases in which I personally issued orders or directives, including in particular all acts and facts which I signed personally or issued authentically, but I mean these facts only and not so much general words and statements which were made during those twenty-five years here and there in small circles. In particular, I want to say the following very clearly about responsibility: the Fuehrer, Adolf Hitler, is dead. I was regarded as his successor in leading the German Reich. Consequently I must declare, with reference to my responsibility, that it was my aim -

THE PRESIDENT: The Tribunal would wish that you should not make speeches. The Tribunal is perfectly well able to understand the difference between formal responsibility and actual responsibility for orders given by you.

THE WITNESS: I acknowledge my responsibility for having done everything to carry out the preparations for the seizure of power, and to have made the power firm in order to make Germany free and great. I did everything to avoid this war. But after it had started, it was my duty to do everything to win it.

THE PRESIDENT: We have already heard you say that more than once and we do not wish to hear it again.

THE WITNESS: On the question of labour: During the war, the inhabitants of the occupied territories were brought in to work in Germany and their countries were exploited economically.

THE PRESIDENT: Dr. Stahmer, you are supposed to be asking questions of the witness. Now, what question is that in answer to?

DR. STAHMER: I had asked him about his responsibility -

THE PRESIDENT: You can ask him questions but you cannot ask him general questions which invite speeches. If you have any particular questions to ask him which arise out of the cross- examination, now is the time to ask them.

DR. STAHMER: I put this question: To what extent does he consider himself responsible for the points mentioned here in the cross-examination regarding the deportation of workers -

MR. JUSTICE JACKSON: I object to this question being put.

THE PRESIDENT: He has already told us about that. He answered that question more than once.

DR. STAHMER: In that case, I have no further questions to ask.

THE PRESIDENT: Very well. Then the defendant can retire.

(The witness retired.)

THE PRESIDENT: Yes. Dr. Stahmer.

[Page 339]

DR. STAHMER: May I first of all give a short review of the present stage of the trial so that the Tribunal can see what the list of witnesses still granted to me is like now. I was going to forgo Dr. Lohse.

THE PRESIDENT: Dr. Lohse, did you say?

DR. STAHMER: Yes. I abstain from calling Dr. Lohse because the defendant has in my opinion already made sufficient statements on that subject. Furthermore, I had been granted the Ambassador, Dr. Paul Schmidt, as a witness. That witness, of whom I want to ask a few questions only, I should like to, hear only later, subsequent to his examination for the defendant Ribbentrop, because he will have to answer a wide range of questions, during that examination, and it appears to me appropriate if I call him subsequent to that - which is also in accord with the wish of Dr. Horn, if the Tribunal will agree to that procedure.

ME PRESIDENT: Certainly.

DR. STAHMER: The witness Koller, as it has now been ascertained, is in Belgium, and not in Germany. His hearing was provided in case he was in Germany. Consequently, I shall have to submit an interrogatory to that witness. That has been done, but the interrogatory has not yet been returned.


DR. STAHMER: Furthermore, I have received permission to submit interrogations to the witnesses Ondarza, Freiherr von Hammerstein, Kammhuber, Student and Bunjes. The interrogatories have been submitted but have not yet been returned. The situation is that the addresses of Ondarza and Kammhuber have since been ascertained; as to the other three witnesses, inquiries are still being made, so that also here I cannot yet submit anything. Then there are interrogatories of Uiberreither, Lord Halifax and Sir George Forbes; from Halifax and Forbes the interrogatories have been received, and I am going to read them; from Uiberreither there is a written statement as well.

THE PRESIDENT: What do you mean by "a written statement as well"? You said there are the interrogatories from Lord Halifax and Sir George Ogilvie Forbes.

DR. STAHMER: Interrogatories have been received from Lord Halifax and Sir George Forbes. There is a written affidavit from Uiberreither and I assume that that may take the place of an interrogatory.

THE PRESIDENT: Yes, I understand.

DR. STAHMER: Furthermore, there is the Katyn case, Mr. President. Five witnesses are involved. I am still making inquiries regarding their addresses. I am therefore not in a position to have these witnesses called before the Tribunal.

THE PRESIDENT: Yes, Dr. Stahmer. Was that all that you wished to say at this stage ?

DR. STAHMER: Yes, upon the question of these witnesses; in addition, I must present that which I have in the way of documents and then I shall have completed my case for the time being. I have put down in writing that which I have to say about the documents.

THE PRESIDENT: Just one moment.

DR. STAHMER: Yes, Sir?

THE PRESIDENT: Yes, Dr. Stahmer, the Tribunal approves of the course which you suggest.

MR. JUSTICE JACKSON: May I, in the interest of time, make a suggestion, your Honour. These documents which Dr. Stahmer proposes to offer have, I understand, been translated into all four languages, so that the reason for reading them in open court does not hold good. I cannot speak for my colleagues, since I have not consulted them, but so far as the United States is concerned we will not raise a question of relevancy; we spend no time arguing points of relevancy. I suggest that the reading of a whole document book

[Page 340]

seems a waste of time of the Tribunal since the documents are available in all four languages.

THE PRESIDENT: Dr. Stahmer, before we consider that course which has been suggested by Mr. Justice Jackson, we should like to hear whether any of the other Chief Prosecutors have anything to add to it.

SIR DAVID MAXWELL FYFE: I respectfully submit that it is an excellent suggestion, and I want to make it clear to the defence counsel that I feel that it will, on the one hand, avoid arguments of relevancy on comparatively small points and, on the other hand, the defence counsel will be able to use any of the excerpts in their final speeches with more effect and probably with more help to the Tribunal than merely by reading them at this stage. I respectfully support it and consider that it will improve the general condition.

THE PRESIDENT: Thank you, Sir David. We will hear you in a moment, Dr. Stahmer, but I do not want you to go away; I want you to be able to hear General Rudenko, too.

GENERAL RUDENKO: I am fully in agreement with the suggestion of Mr. Justice Jackson and that of Sir David Maxwell Fyfe and I also consider that the Tribunal accept these documents which have been translated into four languages. This does not exclude the premise, namely that the defence has no right to submit documents that have nothing to do with the present case. In particular I have a definite objection against submitting as exhibits the extracts from documents of the so-called "White Book" which are being submitted by Dr. Stahmer in the document book. These extracts have nothing to do with the present case and they should not be submitted.

THE PRESIDENT: Does the French Chief Prosecutor wish to add anything to what has been said?

M. DE REBES: The French prosecution has laid before the Tribunal a note requesting rejection of Document 26. It concerns, indeed, an extract from a note from the German Government to the French Government regarding the treatment of German prisoners of war in France. This extract refers to a secret order from the headquarters of the General commanding the 9th French Army. This extracts says that the General commanding the 9th French Army published an order; this order was not given to us. We are dealing only with an assertion of the German Government, which is the Government of the defendant. The extract which is offered to us has, therefore, no relevancy and we ask the Tribunal to reject it.

THE PRESIDENT: The Tribunal, at the moment, is not considering the question of relevancy of particular documents. They are only considering the general question of method as to whether all these documents have to be read out to the Tribunal or whether they can be laid before the Tribunal for the Tribunal's consideration. If they have got to be read out in full it will take a very considerable time, and therefore Mr. Justice Jackson has suggested that instead of all these documents being read out in full, which will take a very long time, as they have been translated the reason for that no longer exists as it did exist in the case of the documents put in by the prosecution which had not been translated. But that does not mean that the question of relevancy of individual documents or particular passages in the documents is decided by the document book being presented for the consideration of the Tribunal. Such questions as that may, in important cases, have to be considered after argument, but as a general rule and for the purpose of avoiding delay the suggestion of Mr. Justice Jackson appears to have a very great deal to recommend it.

M. DE RIBES: The matter which is before us to-day was to find out whether all of the documents which have been submitted are relevant, and that is why I asked that the Tribunal reject one of the documents as irrelevant. If it is understood that this question may be brought up later when the document is produced, then I see no objection to postponing my explanation. I wish only to state,

[Page 341]

concerning Document 26, that the quotation read by Dr. Stahmer is mutilated and I shall ask the Tribunal to hear this document read in full.

THE PRESIDENT: We would like to consider this matter, but before doing so we would like to know whether you, Dr. Stahmer, have any objection to the suggestion that has been made. You understand what Mr. Justice Jackson's suggestion is?

DR. STAHMER: Yes, Mr. President, I understand; it touches upon a fundamental question of the defence, and I should like to discuss this question briefly with the other defence counsel. I should like to suggest that the Tribunal take a short recess now so that there will be an opportunity to discuss the matter. I would then make my statement afterwards.

I should like to point out now that at the time we were willing to forgo the reading of the Indictment, and its being read was not due to our demands. There was probably an opinion that it had to be read as a matter of principle. I shall clarify the question and report immediately.

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