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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
23rd March to 3rd April, 1946

Eighty-Ninth Day: Saturday, 23rd March, 1946
(Part 1 of 2)

[Page 1]

THE PRESIDENT: Have you consulted the defence counsel as to the order in which they wish to take these supplementary applications?

SIR DAVID MAXWELL FYFE: I have the order which the Tribunal has, beginning with Streicher.

THE PRESIDENT: Perhaps that would be the most convenient then. Is Streicher's counsel ready? Dr. Marx? DR. MARX (counsel for the defendant Streicher): Your Honours, Mr. President, on behalf of the defendant Julius Streicher I have applied for the calling of Fritz Herwerth as a witness before the Tribunal. This witness is a man who has been in the immediate vicinity of the defendant Streicher for years and who, because of that, is in a position to offer information on all political events that can, in many ways, have a bearing on the decision and judgement in the case of Streicher. In particular, I have applied for this witness because he was present on that night of the 9th to 10th November, when the defendant Streicher had a conference with the S.A. leader von Obernitz, at which von Obernitz informed Streicher that he, Obernitz, had received the order to carry out demonstrations against the Jewish population during that night. Streicher will establish that he then told Herr von Obernitz that he, Streicher, dissociated himself from this affair, that he considered these demonstrations a mistake, and that he refused to take part in them. Obernitz thereupon stated that he had received the order from Berlin and had to carry it out. It can . . .

THE PRESIDENT: Sir David, do you object to this alteration of our previous order?

SIR DAVID MAXWELL FYFE: My Lord, we have not seen any change in the situation as the Tribunal decided it, but we do not want to press against this witness being called, except that we must point out that there is not any change. All these matters were gone into by the Tribunal. If the Tribunal feels that it would be better that the witness should be called, then the prosecution will not take any objection.

THE PRESIDENT: Have these interrogatories been drawn up?

DR. MARX: No, they have not yet been completed. I beg your pardon, Mr. President, is this question put with reference to the witness Herwerth?


DR. MARX: Yes, the questions to the witness have been completed; the questions which the defence wishes . . .

THE PRESIDENT: Dr. Marx, we will reconsider that. You have got something else, have you not, Dr. Marx. You want some document; there is some document you are asking for, is there not?

DR. MARX: May I speak, Mr. President? Actually, I should like to ask that both the documents referred to be placed at my disposal. That is, the matter of the suit against Karl Holz in the year 1931 and the files of the disciplinary

[Page 2]

proceedings against Julius Streicher, concerning which I am unfortunately not able to give the year. It might be 1931.

THE PRESIDENT: But, Dr. Marx, did we not, with the agreement of the prosecution, strike out a passage from a document, which was critical of the defendant Streicher? Does that not render this evidence entirely irrelevant?

SIR DAVID MAXWELL FYFE: That was about the witness Lothar Streicher, the son, about an interview that took place in prison, in which there were certain allegations, and these were struck out by the consent of the prosecution. I confess I do not know whether the disciplinary proceedings in the matter of Streicher -

DR. MARX: I beg your pardon, Mr. President. May I speak? The matter in which Lothar Streicher figures is from the Goering report concerning the visit or the conversation Streicher had with three youthful criminals, during which Streicher was supposed to have taken an ugly or improper attitude. Lothar Streicher was named as a witness by me to testify that at that time no such thing happened. That is in connection with the report of the Goering commission, whereas the other matter is concerned with a disciplinary action. This proceeding was completed in 1931 before the disciplinary court at Munich.

THE PRESIDENT: Was it not all in connection with the same alleged offence by Streicher?

SIR DAVID MAXWELL FYFE: My Lord, I have the details now, if I might read them. I think it makes them clear. The first application in relation to the proceedings against Karl Holz reads, "The documents requested herein will be used to prove the following facts:

During these proceedings Dr. Erich Bischof, an authority on the Talmud, from Leipzig, gave evidence under oath that there was, in the Jewish religious book 'Sohar' a law allowing ritual murder.
THE PRESIDENT: But, Sir David, there are two different applications, are there not? There is this application with reference to the Jewish religious book and then there is the other application with reference to the trial of Karl Holz.

SIR DAVID MAXWELL FYFE: As I understood it, My Lord, this application is headed "Files in the trial in the matter of Karl Holz," and one of the pieces of evidence in the trial of Karl Holz, according to Dr. Marx's application, was the evidence of Dr. Erich Bischof as to the Talmud; and the application goes on to say that "these facts are relevant to my defence for the following reasons:

The accused wishes to prove with these court records" - that is, the record from the trial of Holz - "that the 'Sturmer' did not deal with the question of ritual murder against his better judgement." That is, as I understand it, that the "Sturmer" dealt with ritual murder according to the knowledge of Dr. Bischof, as expressed at that trial. That, in my respectful submission, would be quite irrelevant.

THE PRESIDENT: What is the date of this religious book? It was written in the Middle Ages, was it not?

SIR DAVID MAXWELL FYFE: I think so, My Lord, and it was produced on 30th October and 4th November, 1931, by Dr. Bischof.

Then, My Lord, the second one - just to get it clear, so Your Lordship will have it in mind - is the files of the disciplinary proceedings in the matter of Streicher at the disciplinary court at Munich. "The documents requested herein will be used to prove the following facts: The accused wishes to prove, with the production of these files,

that he was not dismissed from his profession because of indecent assault but on political grounds, and with the granting of part of his salary.
I myself do not see the relevance of it, but perhaps Dr. Marx can inform the Tribunal.

THE PRESIDENT: Is it charged against him in the Indictment?

[Page 3]

SIR DAVID MAXWELL FYFE: No, there is nothing about his criminal record other than on anti-Jewish grounds.

THE PRESIDENT: In that connection the prosecution agreed to strike out any reference to that incident, did it not?

SIR DAVID MAXWELL FYFE: I am not sure that it is the same incident, but the prosecution did agree to strike out the only reference to it that appeared in the record, to my knowledge - to any reference to a matter of that kind. That was as to the treatment of certain boys in prison.

DR. MARX: Mr. President, may I, to clarify the matter, make a few statements now. The defence counsel for the defendant Streicher applied to have the file on this disciplinary case produced for the following reason:

Streicher was asked by a Russian interrogator whether he had been dismissed from his office because of moral delinquency, and therefore it is necessary to have the file on this disciplinary case produced. This file shows that Streicher was not dismissed from his school post because of indecent conduct, but because of his political attitude. That is one point. And quite apart from that is the matter in which Lothar Streicher is supposed to act as a witness. That was the matter mentioned in the report of the Goering commission concerning the three young delinquents who were visited by Streicher, and on which occasion he is supposed to have been guilty of indecent conduct.

I come now to the question of Dr. Bischof, Mr. President. This matter concerns the following: Streicher is accused, with reference to quotations from the Talmud or quotations referring to ritual murder, either of having consulted incorrect translation or of not having ascertained facts sufficiently, in a frivolous and grossly negligent way.

THE PRESIDENT: When you say, Dr. Marx, that he is being reproved with that there is no such charge in the Indictment. No such charge has been made in the course of the case of the prosecution. The charge against him is that he provoked the German people to excesses against the Jews, not by misquoting some Jewish book, but by referring to Jewish books of the Middle Ages.

DR. MARX: I take the liberty of drawing attention to the fact that, on the contrary, the prosecutor, Lt. Col. Griffith Jones, when he presented the case against Streicher, referred to this point explicitly and accused Streicher of having here, against better knowledge, quoted passages from the Talmud. And consequently, it is important that this file against Holz is consulted, because in it is established, by the witness Dr. Bischof, how the quotations came about. This Dr. Bischof is a recognized scholar. But, Mr. President, the whole matter could still be shortened if the prosecution states today that this whole matter regarding the ritual murder is not to be made a subject of the Indictment. There would then be eliminated from the trial an element which could only extend it in any case, and which can play no important part against the defendant anyhow, and has nothing to do with the actual Indictment.

SIR DAVID MAXWELL FYFE: I want to make that position perfectly clear. The important point in the case for the prosecution is the use of the suggestion against the Jews, that they committed ritual murder. If someone takes an extract out of a book in the Middle Ages and reproduces it so that it will be understood by the ordinary reader as being a practice of Jews or a reason for disliking Jews, then the prosecution says that that is an evil method of stirring up hatred against the Jews. Whether anyone can find in the Jewish book of the Middle Ages some remark about ritual murders is really immaterial. The gravamen of the case for the prosecution is using the ritual murder accusation as a method of stirring up hatred against the Jews today. That is the case which the defendant has to meet.

THE PRESIDENT: We will consider the application.

DR. MARX: I beg your pardon. I consider it necessary, nevertheless, to answer at least very briefly the statements of the preceding speaker, Sir David Maxwell Fyfe. The fact is that the special number of Der Sturmer under discussion makes

[Page 4]

reference in particular to a trial which took place in 1899 at Piseck, in Moravia or Bohemia, and during which this question also figured. It is thus not true that the defendant Streicher had as his basis only mediaeval superstition, but on the contrary that he dealt with material taken from modern legal history, using material, the genuineness of which I cannot establish, but which I cannot simply dispose of as incorrect and which the Tribunal also would probably have to investigate. That is why I said that this entire matter ought not to be touched at all. For here it is a question merely of whether Streicher was acting in good faith or not, and if he can say that trials of that kind have taken place and the judges actually were not unanimous, then one cannot say in fact that he acted against his better knowledge. That is what is essential in this matter. Thus, I personally would prefer to have this matter eliminated, if the prosecution would no longer consider this whole subject matter as part of the Indictment.

THE PRESIDENT: We will consider the application.

SIR DAVID MAXWELL FYFE: The next one on the list that I have, my Lord, is an application by the defendant Goering for a Major Buex; spelled "B-u-e-x" I asked Dr. Stahmer, and he was good enough to tell me that that was the same gentleman who was asked for as a witness by the defendant Jodl, under the spelling of " B-u-e-c-h-s." I understand the Tribunal has granted him as a witness to the defendant Jodl, and Dr. Stahmer will have the opportunity of asking him the questions then.

DR. STAHMER: I agree.

SIR DAVID MAXWELL FYFE: The next is an application by the defendant von Ribbentrop. He requests Herr Hilger as a witness, The grounds of the application are that Dr. Horn and the defendant Ribbentrop found that the witness Gauss, for whom he had asked, was not able to give as much assistance as had been expected and that they desired this witness Hilger in addition. The view of the prosecution is that the defendant should have either Hilger or Gauss as a witness and an interrogatory to the other one, and we have no objection to the witness Hilger being brought to Nuremberg for consultation.DR. SIEMERS (as deputy for Dr. Horn, the Defence Counsel for the defendant Ribbentrop): Actually, I had wanted to ask Sir David to postpone this matter a little, as I have had Dr. Horn asked to come here himself. We defence Counsel were not informed which applications would be dealt with today. Hence Dr. Horn is not present at the moment. But I think that, if the Tribunal agrees, the matter can perhaps be dealt with now, as far as I know, but I have to speak with Dr. Horn first, at any rate, I am speaking on my own responsibility.

THE PRESIDENT: I do not know what you mean about not being informed about these applications. I made the statement yesterday that supplementary applications for witnesses and documents would be taken this morning. I don't understand your saying you didn't know what would be done. The Tribunal has no objection to it being taken later when Dr. Horn is here, if he comes in time.

DR. SOMERS: Yes, and may I suggest that if Dr. Horn does not return in time, I am ready to settle the matter for him; by then I will be in a position to do so.


DR. MARX: Pardon, Mr. President, may I make one more very brief statement? Streicher just informs me that I should state that he will forgo the witness Lothar Streicher. If, therefore, the calling of this witness was considered, then I state that the defence will withdraw application for him.

THE PRESIDENT: Has not that been allowed - Lothar Streicher?

SIR DAVID MAXWELL FYFE: He was the witness who was not to be allowed on condition that the prosecution agreed to strike out this passage and we agreed to that.


SIR DAVID MAXWELL FYFE: The next is an application for the defendant von Papen.

[Page 5]

THE PRESIDENT: One moment, Sir David. Has that letter about withdrawing the statement about the witness Lothar Streicher been read into the record?

SIR DAVID MAXWELL FYFE: I do not know if it has been read into the record. It has been sent to the Tribunal.

THE PRESIDENT: It had better be put in as a document.

SIR DAVID MAXWELL FYFE: If your Lordship pleases. My Lord, the next is the application for the defendant von Papen, who requests that the witness Josten, who has been approved by the Tribunal as a witness, be changed to an affidavit, which counsel already has, and Dr. Kubuschok requests that Kroll be allowed as a witness. My Lord, the position with regard to Kroll was that the prosecution submitted that he was not relevant but the Tribunal allowed interrogatories for Kroll and, therefore, the prosecution accepts the decision of the Tribunal that he is relevant. For that reason, as Dr. Kubuschok is dropping one witness, we feel that we cannot object to his being brought as an oral witness, since the Tribunal has decided that his testimony is relevant.

THE PRESIDENT: Yes, and as to Josten, has the affidavit been submitted to you?

DR. KUBUSCHOK: Yes, I have just received it with signature. The witness Josten has appeared today and has signed the affidavit.

THE PRESIDENT: All I am thinking of is that the prosecution may hereafter want to have him called for cross-examination.

SIR DAVID MAXWELL FYFE: We have not seen the affidavit yet, my Lord, I am sorry. I will look into that.

THE PRESIDENT The result of that would be that both witnesses would have to be here.

SIR DAVID MAXWELL FYFE: I appreciate that, my Lord.

THE PRESIDENT: I was taking it that Dr. Kubuschok meant an affidavit and not an interrogatory.

DR. KUBUSCHOK: Yes, a sworn affidavit.

SIR DAVID MAXWELL FYFE: Perhaps, my Lord, the Tribunal would postpone a decision on this point until I have had a chance to consider the affidavit and then I will communicate with Dr. Kubuschok and with the Tribunal.

THE PRESIDENT: Yes, very well.

DR. KUBUSCHOK: May I, Mr. President, mention yet another case. I had been granted the witness von Tschirschky, who is at present in England, for oral interrogation. The witness has written to the Tribunal that it is difficult for him to be absent from England at the moment, and requests that his evidence be taken in writing. I am agreeable to this and have drafted an interrogatory which is now being submitted to the Tribunal. This, again, would mean another witness gone, Tschirschky, as well as Josten, so that I request earnestly that the witness Kroll be granted as an oral witness, since a considerable saving of time has now been accomplished.

THE PRESIDENT: Sir David, you have no objection to that?

SIR DAVID MAXWELL FYFE: No, I have no objection to that. I may have to consider certain cross interrogatories for the witness, but that will not affect the position of Dr. Tschirschky.

Next is the application by the defendant Rosenberg for a document - Hitler's letter to Rosenberg dated 1924. This document is in regard to Rosenberg's anti-Semitism. As far as I know, the prosecution has none of these documents but Dr. Thoma can explain what he wants. I have no objection to his having these documents if they can be found.

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