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

Ninety-Second Day: Wednesday, 27th March, 1946
(Part 10 of 10)

[Page 123]

THE PRESIDENT: And of course it is very difficult, if not impossible, for members of the prosecution to make their objections to documents when they are offered in bulk in that way. Therefore, I think the most convenient course would probably be if, as soon as the translation of those documents has been made, the prosecution could indicate any objections they have to them and the Tribunal would consider them, and after the order of the Tribunal has been made upon them, they should then be made available to the Press.

SIR DAVID MAXWELL FYFE: My Lord, I respectfully and entirely agree. My Lord, the prosecutors did confer. Of course the only material that they had to confer upon was the short description of the documents in document book 1, and on that it appeared to all of us that there were a number of documents which might be and probably were objectionable. But, clearly, from our point of view it would be much more satisfactory if we had the opportunity of seeing the actual document in translation, and then we should gladly comply with what your Lordship has suggested, namely, that we will make the objections to such of those - as we think objectionable in writing and let the Tribunal have it.

THE PRESIDENT: Sir David, a good many of them, I believe, are in English, and you could let us have your objections as soon as possible. Perhaps the Press would act in accordance with our wishes and not make public those documents to which objection is taken until we have ruled upon them.

SIR DAVID MAXWELL FYFE: If your Lordship pleases, yes. We will make our objections as soon as we have had the opportunity of reading the documents.


DR. HORN: May I, Mr. President, state that none of my material has been handed to the Press by me up to now. I further state that by an order of the Tribunal, only that part was to be translated which was considered by the prosecution to be relevant. On the basis of this ruling I cannot rightly comprehend the point of Colonel Pokrovsky's objection regarding the intrinsic value of the documents. I do not believe that the prosecution, on the strength of that ruling, would translate anything which, as Colonel Pokrovsky emphasized, must be designated as dirty in its contents. I think that would have been already before now rejected by the prosecution and therefore the danger does not exist at all that any such translation or original will reach the Press.

THE PRESIDENT: I have not seen the documents, so I cannot say, but if you would continue in accordance with the scheme that I have suggested to you, I think that would be the best course for you to take.

DR. HORN: May I now submit the documents referring to armament, military as well as economic, which at the same time show the co-operation between Britain

[Page 124]

and France? These are the documents 51 to 62 in my document book. I ask the Tribunal to take judicial notice of these documents.

I come to the question of Czechoslovakia. As evidence for the fact that Slovakia requested to be taken under German protection I shall present to the Tribunal Ribbentrop Exhibits 63, 64 and 65 with the request that they be given judicial notice. Furthermore, I shall examine the defendant Ribbentrop concerning this subject when he takes the stand, and, as far as is necessary, I shall have to get him to express an opinion regarding these individual documents. Now I submit documents 66 to 69 to the Tribunal for judicial notice. They contain statements regarding the reaction in Britain to the occupation of the rest of the Czech country on 15th March, 1939, by Germany. Regarding the details, as to how the creation of the protectorate came about, I shall again question the defendant Ribbentrop concerning the individual documents.

As the next group of exhibits, I present to the Tribunal the document which refers to Article 99 of the Versailles Treaty, and which specifically refers to the international legal position of the Memel territory. We are concerned here with documents 70 and 71 of my document book.

Regarding the fact that, in accordance with the presentation of evidence up to now, I had timed myself not to proceed any further to-day than to that document, I should like to ask your Lordship's permission to submit the rest of the documents to the Tribunal to-morrow. For up to now, on the strength of the existing practice of the Tribunal that the documents be partly read with a connecting text I had expected not to go beyond this document.

THE PRESIDENT: Dr. Horn, why do you not put them all in now? You say you have an index of them. All you have to say is that you offer in evidence the documents from 71 to 300 and something and then they go in, and then if the prosecution should take an objection to them, you can, of course, be heard upon the question of the objection.

DR. HORN: May I have your permission to confer with my colleague for one moment and see how much material he has here, so that I can then offer evidence on the separate complexes to the Tribunal? May I again ask your Lordship? - I gather from this ruling of the Tribunal that submission of evidence here is no longer to take place but merely presentation of exhibits quite apart from the contents.

THE PRESIDENT: Presumably when these documents are submitted for translation, which I understand you to say has been done-but at any rate, if you have not done it already you will be doing it - you will mark the passages upon which you rely. Some may be in books, and there you will only indicate certain parts; in documents you will indicate the parts upon which you rely, which is what we desired you to do. You described all these documents by numbers and gave them exhibit numbers in your document book, and all we want you to do now is to offer them in evidence, and then the prosecution, when they have been translated, will have the opportunity of objecting to them on the ground of their being cumulative or of their being inadmissible for some other reasons and, if necessary, you will be heard upon that. All we want you to do now is to get on. What difficulty there can be in submitting these documents, all of which you have indexed in your document book, the Tribunal is quite unable to see.

DR. HORN: Until now, however, the ruling of the Tribunal was to this effect, that we in the defence presentation were not only allowed to submit our documents but also to deliver them with a connecting text so as to indicate the attitude of the defence. Just recently, Mr. Jackson suggested that, on the contrary, the documents should be handed over in their entirety and that objections could be raised subsequently by the prosecution against the individual documents without their being presented. This suggestion was turned down on the strength of representations made by Dr. Dix, and the Tribunal intended to continue the established procedure, namely, that the documents could be read and brought forward with a connecting text. Now, we come to-day to a complete departure from this pro-

[Page 125]

cedure, in which only the documents, and these in bulk, are presented to the Tribunal for judicial notice. That is naturally such a deviation that one first of all has to regroup all these documents, so as to then be able to submit them to the Tribunal in their proper order, for up to now, we had planned to deliver at least some part of the contents.

THE PRESIDENT: I am not aware of any order of the Tribunal which refers to an inter-connecting text. We did not rule that you should not be allowed to read any passage from the documents, but what we did rule was that we wished the documents to be presented and put in evidence and that the passages upon which you relied should be marked and that the prosecution should, if they wished to object to them as being so irrelevant that they need not be translated, should do so, and that the Tribunal should rule if there was a conflict upon that. Dr. Horn, of course, you can put any documents to your witnesses in the course of their examination and ask them to explain it. It is not as though you are confined to this presentation of the documents in bulk.

DR. HORN: Mr. President, may I add another word? This matter appears to me to be again such a question of principle that I do not wish to prejudice my colleagues, and I should like to have an opportunity, first of all to confer with my colleagues about it. This is indeed a basic departure from the established procedure which was allowed the defence. I would not like therefore to take it upon myself now to simply alter these matters for myself and then in so doing also commit my colleagues. I hope that your Lordship will understand that.

THE PRESIDENT: Dr. Horn, the only material order which the Tribunal has made, as far as I am aware, is this: It is the order of the 4th of February, 1946, 2 (a):

"During the presentation of a defendant's case, the defendant's counsel will read documents, will question witnesses, and will make such brief comments on the evidence as are necessary to ensure a proper understanding of it."
DR. HORN: Mr. President, this ruling could naturally only be interpreted by us to the effect that we were granted approximately the same procedure as the prosecution, for it certainly is a part of the fundamental principles of any trial, that a certain equality of rights exists between prosecution and defence.

So as to save time, we are prepared to adopt ourselves to the Tribunal to the extent that we submit the documents to the Tribunal as a unit, in so far as they refer to a definite problem, but still retain the right to make these statements upon their contents required in order to understand the whole problem in the abstract. This possibility would be taken away from us if we must now simply submit the entire documentary material and can make no statements about it at all; for we certainly cannot make any comments on a document if I now, for example, submit 10 pieces altogether for a specific problem.

THE PRESIDENT: Dr. Horn, the Tribunal will adjourn now for a few minutes to consider this question and will return in a short time and announce their decision so that you can prepare yourself for to-morrow on the lines which they wish.

DR. DIX: Before the Tribunal confer, may I ask only one question. I have understood the course of the discussion up to now in this way: that the difficulty has arisen owing to the fact, that as the Russian and French translations are not available, some of the prosecution are still unable to form an opinion with reference to this material, and consequently cannot decide whether they wish to raise objections or not. On the other hand the Tribunal wants to avoid quotations being read here concerning matters on which it has not yet been decided whether the prosecution wants to raise objections. This is the situation which appears to me to be the cause of the difficulties arising at present.

I have not understood the statements of the Tribunal, of his Lordship, to mean - I beg to be corrected if I am wrong - that there is to be a deviation from the already announced decision or from the procedure followed up to now, that we may quote

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essential and important portions of the documents submitted by us, when they have been admitted as relevant by the Tribunal.

I believe that I am right in my impression that no exception is to be made to this principle, and that no basic new decision is to be made here now, but only an interim ruling is being sought: How can we surmount the difficulties that Dr. Horn may not at the moment read individual passages from his documents because the Tribunal is not yet in a position to decide their relevancy and admit them, because the Tribunal cannot yet hear the attitude of the prosecution.

Before we adjourn, therefore, so that we have a definite basis for our discussion, I should like to ask the Tribunal if my interpretation is correct. Is it now merely a question of finding a way out, while basically maintaining the right of the defence to speak connecting words, words of explanation of the documents, that is, words without which the documents could not be understood, and to read individual relevant parts?

I should be grateful to your Lordship if I could be told if this conception of mine regarding the nature of these difficulties which have arisen is correct.

THE PRESIDENT: We will adjourn now and we will return into Court very shortly and we will consider what you have said.

(A recess was taken.)

THE PRESIDENT: On the 22nd of March, 1946, the Tribunal made this ruling, repeating a ruling of the 8th of March, 1946.

"To avoid unnecessary translations defence counsel shall indicate to the prosecution the exact passages in all documents which they propose to use in order that the prosecution may have an opportunity to object to irrelevant passages.

In the event of disagreement between the prosecution and the defence as to the relevancy of any particular passage, the Tribunal will decide what passages are sufficiently relevant to be translated. Only the cited passages need be translated unless the prosecution require translation of the entire document."

That rule has not, for very likely sufficient reasons, been able to be carried out, and therefore the Tribunal has not got the translations, and they understand that the prosecution has not got, at any rate all, the translations, and the difficulty which has arisen, the Tribunal think, is in part, at any rate, due to that fact.

The Tribunal, on the 22nd of March, 1946, in citing that order, of the 8th of March, of the same year said this:

"In considering the matters which have been raised this morning the Tribunal has had in mind the necessity for a fair trial and at the same time for an expeditious trial, and the Tribunal has decided that for the present it will proceed under rules heretofore announced, that is to say:

"First, documents translated into the four languages may be introduced without being read, but in introducing them Counsel may summarise them or otherwise call their relevance to the attention of the Tribunal and may read such brief passages as are strictly relevant and are deemed important.

Second, when a document is offered the Tribunal will hear any objections that may be offered to it."

In this connection the Tribunal then went on to read the order of the 8th of March, which deals with translations.

Now, in the present case, the translations not being in the hands of the Tribunal or of all the prosecutors, it has been impossible for the prosecutors to make their objections and impossible for the Tribunal to rule upon the admissibility of the documents. Therefore, it is natural that the prosecution have objected to the defence reading from documents which they had not seen.

The Tribunal understands that the translations of these documents of Dr.

[Page 127]

Horn's will be ready to-morrow. They hope, therefore, that the order which I have just read will be able to be carried out to-morrow, and they propose for the present, and if the order is reasonably and fairly carried out by defence Counsel, to adhere to it. They would draw the attention of the defendants' Counsel again to the first paragraph of the order and would remind them that they must adhere strictly to that order:
"The documents having been translated into the four languages may be introduced without being read, but in introducing them counsel may summarise them, or otherwise call their relevance to the attention of the Tribunal and may read such brief passages as are strictly relevant and are deemed important."
In that connection I would add "and are not cumulative."

The Tribunal cannot sit here and have three or four hundred documents read to them and commented upon and argued, and therefore it is absolutely essential, in the opinion of the Tribunal, that counsel must summarise briefly and indicate the relevance of the documents briefly, and only read such passages as are really strictly relevant and are not cumulative.

The Tribunal are prepared to adhere to that rule, as I say, if counsel will adhere strictly to it themselves, and they think if Dr. Horn will state, after offering the documents either in one complete bulk or in a group or in groups, the relevancy of each group and confine himself to the reading of only passages which are really necessary to be read in order to understand the documents, that will be satisfactory to them. But they cannot sit here either to hear each of those documents offered in evidence by its number or to hear a long or even a short speech about the relevancy of each of the documents, or to hear passages read from each of those documents. The number of documents is very great and it is impossible for the Tribunal to carry on an expeditious trial unless the rule which they have laid down is interpreted in the way in which I have indicated.

As I have already indicated in the emphasis which I threw upon the words, this rule was expressly made for the present circumstances and unless it is worked by the Defence Counsel in a reasonable way the rule will be altered.

(The Tribunal adjourned until 28th March, 1946, at 1000 hours.)

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