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 2 of 2)

[Page 5]

DR. THOMA (counsel for the defendant Rosenberg): Mr. President, may I first draw your attention to the fact that my application for a document - Rosenberg's letter to Hitler, in which Rosenberg asks not to be a candidate for the Reichstag - has since been handed to me. This application has thus been settled. Secondly . . .

THE PRESIDENT just a moment, Dr. Thoma. You withdraw that application

[Page 6]

because you have that letter, do you not? You said "With that the application has been settled." Do you mean that you withdraw that application?

DR. THOMA: No, Mr. President. The Tribunal has already permitted me to offer this document as soon as it was found. It has since been found.

Furthermore, I should like to draw attention to the fact that the document in which Rosenberg writes to Hitler and asks to be relieved from the position of editor-in-chief of the Volkischer Beobachter has been allowed me likewise. But I have not yet received it.

Thirdly, may I ask that two further documents be granted me. Two documents, which, during interrogation, have already been shown to Rosenberg by the prosecution. The first is a decree Hitler sent to Rosenberg in June 1943, in which Hitler instructs Rosenberg to limit himself to the principal matters in Eastern questions ...

THE PRESIDENT: Dr. Thoma, you are now dealing with applications which are not in writing; are you not?

DR. THOMA: Yes, I have already submitted them in writing.

THE PRESIDENT: I have only two applications here as far as I can see:

One with reference to Hitler's letter to Rosenberg dated 1924, and the other with reference to three books about Jews. These are the only two applications I have.

DR. THOMA: Mr. President, I have already made these applications during open session, and as far as I know, I had submitted them in writing even before making them in open session. I have in fact received an answer as regards two documents applied for. But for two applications the reply is still outstanding. Hence I request the Tribunal's permission to submit these two applications in writing again.

THE PRESIDENT: Yes, you will be allowed to if you will make them clear. You ask for two further documents, and the first one I understand you to say was a decree dated June, 1943. Is that right?

DR. THOMA: That is correct. And the next document is a letter from Hitler to Rosenberg in which Hitler replies to Rosenberg regarding the reasons for his not wanting to work in the Reichstag and for not wanting to participate in the elections. But I do recall that I submitted this application in writing and may I submit it again now?

THE PRESIDENT: Yes, the application will be considered. Are you referring to the document of 1924, the letter from Hitler to Rosenberg dated 1924?

DR. THOMA: Yes, 1923 or 1924. Then, Gentlemen, I have further this fundamental application regarding the question of anti-Semitism. I have asked here to be permitted only a few historic writings, these on the theme of why the Jewish problem has existed in Germany, I believe even from the eighth century, and why persecutions of the Jews recur persistently in Germany. I want thereby to establish that in this connection we are concerned with some tragedy which we do not rationally understand. By producing evidence both from Jewish and from Christian theological literature, I want to prove that we are not concerned with the fact that the German people were misled into exterminating the Jews, and that the influence of the National Socialist Party was such as to inculcate the German people with hate for the Jews, but that we are rather here facing irrational conditions and that this is recognized both in Jewish and Christian literature. I wish also to establish that the dispute between Jewry and the German race has existed on a purely intellectual level, and cite Moritz Goldstein, who said in 1911 - I mention only one example - that the Jews in Germany dominate the intellectual life of Germany. Thus here it is a matter of depicting the problem in Germany, the role of Judaism in the cultural history of Germany, and why such a drastic contrast between Judaism and the German race exists here in Germany. I intend to quote only literature in this connection, but I believe that my statements will not be sufficiently credible to the Tribunal if I do not also quote scientific - recognized scientific - writings. That is all I am concerned with.

[Page 7]

THE PRESIDENT: Dr. Thoma, your applications will be considered.

SIR DAVID MAXWELL FYFE: The next application is on behalf of the defendant Speer, who requests a number of documents dealing with the Central Planning Committee. I have not actually had the opportunity of checking these with the Exhibits, but if, as I believe, they are the ones which were put by Mr. Justice Jackson to the defendant Goering in cross- examination, I think they are all either Exhibits or Documents which the prosecution have, and they relate to the defendant Speer. If he does not have them, then we should do our best to supply copies.

THE PRESIDENT: Sir David, you said they all had been put to the defendant Goering in cross-examination and were either Exhibits or Documents; but if they have been put to the defendant Goering, then they should be Exhibits.

SIR DAVID MAXWELL FYFE: Yes, your Honour, they should be Exhibits; I have not had the opportunity of checking them, but if they have been presented in Court they must be Exhibits. The next one is an application on behalf of the defendant Seyss-Inquart for interrogatories to be submitted to Dr. Ueberreiter. The Tribunal will remember he was Gauleiter of one of the outstanding Austrian Gaus, and a collaborator in the National Socialist Movement in Austria. I have no objection to these interrogatories being submitted.

THE PRESIDENT: He gave another affidavit, did he not, a day or two ago?

SIR DAVID MAXWELL FYFE: Yes, sir. That was for another defendant, Goering. Dr. Uiberretter obviously has some knowledge of the Austrian position. The only question is as to the requirements and the special subject of the interrogatories. I do not know. I have to reserve my position as to actual wording of questions.

THE PRESIDENT: Have you seen the interrogatory?


THE PRESIDENT: They have been deposited before us.

SIR DAVID MAXWELL FYFE: I am sorry, my Lord; I have seen them. It is my mistake. Dr. Ueberreiter certainly comes into the picture once or twice. I had seen this application. And the only objection the prosecution felt was to the somewhat leading form of the questions that were put, and perhaps my friends Mr. Dodd and Colonel Baldwin, could have a word on that point with Dr. Kubuschok or whoever represents Seyss- Inquart, before they are actually delivered.


SIR DAVID MAXWELL FYFE: The next one is an application in regard to the defendant Sauckel. Dr. Kubuschok tells me there is another application on behalf of Seyss-Inquart which was not on the form in front of me.

(Addressing Dr. Kubuschok):

Perhaps you would develop that?

DR. KUBUSCHOK (Counsel for defendant Seyss-Inquart): The defendant Seyss-Inquart is requesting permission for an interrogatory to the witness Bohle. The examination of this witness has been refused by the Tribunal on the grounds that it would be cumulative evidence. The defendant Seyss-Inquart requests again to have these matters of evidence clarified, this time only by way of an interrogatory. The witness is essential, particularly as the subject of his evidence cannot be established by means of other direct witnesses. The other witnesses who have been named in this connection can only state what they have been told by Bohle. Regarding the actual events, Bohle is the only man who can make statements based on his own knowledge.

THE PRESIDENT: Dr. Kubuschok, if other witnesses who have been granted are going to give what we call hearsay evidence, from what they heard from Bohle, why was Bohle not asked for instead of one of these other witnesses?

DR. KUBUSCHOK: I do not know the intention of my colleague who is defending Seyss-Inquart. All I know is that he has asked supplementarily for indirect witnesses here, but I am told now that Bohle is considered as a direct witness, and this because it must be expected that the other witnesses, for whom this matter is not so important, may not remember some points.

THE PRESIDENT: Did you want to say anything about it, Sir David?

[Page 8]

SIR DAVID MAXWELL FYFE: The Tribunal will remember that I informed the Tribunal that all the questions to Bohle were the same as those to the witness von der Wenze, except two, which I think dealt with the requisitioning of lorries and about which there could be little dispute. It seemed to the prosecution therefore that here was clear proof that this witness was entirely cumulative. The interrogation is the same, word for word, as the interrogation of the witness, von der Wenze.

DR. KUBUSCHUK: It was certainly not expressed clearly in the original applications that the other witnesses only know what they have heard from Bohle. In fact, we are here concerned with evidence on instructions given by Bohle personally, on which he is, of course, the best witness. If necessary we would agree that the subject of that evidence be eliminated, as far as the other witnesses are concerned.

THE PRESIDENT: Unless the matter can be agreed upon, the Tribunal can scarcely decide on it without seeing the interrogatory to Bohle and the interrogatories to these other witnesses. Would it meet the case if we were to grant this interrogatory on the condition that, if it appeared subsequently that other interrogatories, when considered with this one, were cumulative, they might be disregarded?

SIR DAVID MAXWELL FYFE: Certainly, as far as I am concerned.


SIR DAVID MAXWELL FYFE: The next is the defendant Sauckel, and Dr. Servatius and Mr. Roberts of my staff have been considering this carefully together. Dr. Servatius is not here. Perhaps Mr. Roberts can tell the Tribunal how far they got.

MR. ROBERTS: Dr. Servatius submitted a list of about ninety documents, a formidable number; but most of them are short extracts from various decrees and orders relating to the employment of labour, and it is difficult to find any reason for objecting to them. Dr. Servatius at my suggestion agreed to take from his list about ten or fifteen as cumulative. There are about four documents relating to alleged ill- treatment of workers at the hands of the enemies of Germany, to which I have objected on the ground that they are not relevant, and as to those documents a decision of the Tribunal will be necessary, as a question of principle.

My Lord, as Dr. Servatius could not, as I understand, be here today, perhaps we could discuss the matter with the General Secretary on his return at the beginning of next week, so that the matter then could be put in a convenient and more or less agreed-upon form to the Tribunal.


Then you have not been able to come to any agreement about the witnesses, have you?

MR ROBERTS: My Lord, I thought the position as to the witnesses was this: That Sir David some weeks ago discussed it before the Tribunal and Dr. Servatius discussed it, and Sir David conceded the calling of six witnesses and affidavits from a number of others. That was considered by Dr. Servatius and he submitted his final and much-reduced list of eleven witnesses, which I handed to an official of the Tribunal, and which I understand has been before the Tribunal.

THE PRESIDENT: Have you the date there? Is it 4th March, 1946?

MR. ROBERTS: I have a document before me in German -


MR. ROBERTS: And the prosecution's position was fully stated by Sir David when these matters were being considered before, and it would be now really for the Tribunal, I think, to decide on those two contentions - one for six witnesses and one for eleven. What their decision should be -

THE PRESIDENT: Sir David, that takes us to the end of the listed ones. There were some that were received later.

SIR DAVID MAXWELL FYFE: There is one from the defendant Frank who requests interrogatories to Ambassador Messersmith. That was granted by the Tribunal, and in an executive session. It was not requested in counsel's consolidated applica-

[Page 9]

tions but heard in open court. There is obviously no objection to that in principle that the prosecution are aware of.

Then the defendant von Ribbentrop requests the book, "America in the Battle of the Continents," by Sven Hedin -

THE PRESIDENT: Other defendants have administered interrogatories to Mr. Messersmith, have they not?


THE PRESIDENT: Have the answers been received yet?

SIR DAVID MAXWELL FYFE: They have not been received, I am told.

THE PRESIDENT: How long is it since they were sent off?

SIR DAVID MAXWELL FYFE: I will find out, my Lord. (Short pause.) 21st February.

THE PRESIDENT: You have seen these interrogatories, the ones now suggested by the defendant Frank?


THE PRESIDENT: There are five of them.

SIR DAVID MAXWELL FYFE: The position is that we got them yesterday and they are still being discussed between my Delegation and the American Delegation. They have not actually come to me yet.

THE PRESIDENT: We had better consider this.

SIR DAVID MAXWELL FYFE: The next is an application by the defendant von Ribbentrop who asks for the book, "America in the Battle of the Continents," by Sven Hedin. That must be subject to the general use of books and if there are passages that the defendant wants to use, if he will submit them, then we can deal with their relevance when the individual passage comes up.

THE PRESIDENT: That also will be considered.

SIR DAVID MAXWELL FYFE: If your Lordship pleases. Then there is an application on behalf of the Defendant Schacht for the book, "Warnings and Prophecies," by the late Lord Rothermere. The same, I submit, should apply to that. Any passage desired to be used can be extracted and shown to us and then their relevance considered when use is attempted to be made of them. Dr. Dix nods agreement to that.

Now, I understand there is an application on behalf of the defendant von Neurath. I understand that he wishes copies of the interrogations of Dr. Gauss, who is the gentleman who is mentioned as a witness for the defendant von Ribbentrop. The general ruling of the Tribunal has been, as I understand it, that the defendants are only entitled to copies of interrogations which are going to be used against them, that is, their own interrogations, and it would be an extension of the rule which might lead us into general difficulties if this were extended to copies of the interrogations of other witnesses. Therefore the prosecution objects in principle to that.

But as I gather that Dr. von Luedinghausen wants them for the purpose of preparing the case, if he would care to come and see me or my staff, perhaps they could be shown to him; and if he indicates any matters on which we can help him, we will be very pleased to discuss them with him.

THE PRESIDENT: Where is Dr. Gauss?


THE PRESIDENT: Can Dr. Luedinghausen not see him here?

SIR DAVID MAXWELL FYFE: I would welcome that. I have not the least objection to that at all. That will ease the situation.

THE PRESIDENT: Both causes appear appropriate, that Dr. Luedinghausen could perhaps see you -


THE PRESIDENT: - with reference to interrogatories and see Dr. Gauss in the prison here.

SIR DAVID MAXWELL FYFE: I welcome both of these courses.

[Page 10]

THE PRESIDENT: Very well, that concludes the matter.

SIR DAVID MAXWELL FYFE: As far as Ribbentrop is concerned

THE PRESIDENT: Dr. Siemers, as Dr. Horn is not here, perhaps you could deal with that application with reference to Hilger.

DR. SIEMERS: Yes. I am prepared to do that, but since I have not talked to Dr. Horn I must ask that Dr. Horn be not bound by my statements.Hilger is a witness of very great importance, since he was an Embassy Counsellor in Moscow during the period, moreover, when negotiations for a pact were conducted between Germany and Russia, until the outbreak of the war with Russia. He is therefore the person who participated in all negotiations, is well acquainted with the dealings of von Ribbentrop, and therefore the best informed and most useful witness. Hilger until now has been in the background as a witness, since Dr. Horn had asked for the ambassador, Dr. Gauss. But Dr. Horn withdrew, or has withdrawn, his application for Dr. Gauss, as, far as I know, and wants only, in reference to some lesser points, to have possibly an affidavit or an interrogatory. I assume that Sir David agrees to this, if I submit it in that form.

THE PRESIDENT: Yes, Dr. Siemers.

DR. SIEMERS: Sir David has just very kindly expressed his agreement to this course.

SIR DAVID MAXWELL FYFE: I agree, my Lord, as I suggested, that if this witness Hilger is called as an oral witness, an interrogatory be administered to the witness Gauss.

THE PRESIDENT: Very well.That is all, is it not?


THE PRESIDENT: The Tribunal will adjourn to consider these matters.

(The Tribunal adjourned until Monday, 25th March, 1946, at 1000 hours.)

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