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-Seventh Day: Tuesday, 2nd April, 1946
(Part 9 of 11)

[Page 293]

THE PRESIDENT: Which volume are they in, 66 and 69?

MR. BARRINGTON: In volume 3, my Lord.

THE PRESIDENT: As they have already been translated does it make much difference if there are objections that they are cumulative?

MR. BARRINGTON: Well, there is no difference, my Lord, at all, except if they are going to be read into the record.

THE PRESIDENT: They have all been translated?

MR. BARRINGTON: They have all been translated.

THE PRESIDENT: And in the other languages, too?

MR. BARRINGTON: I understand so, my Lord, yes.

THE PRESIDENT: So they need not be read into the record.

MR. BARRINGTON: If your Lordship pleases.

THE PRESIDENT: That is the rule, is it not, that if they have been translated into the four languages, they need not be read into the record.

MR. BARRINGTON: That would apply to all the documents in all these nine books now because they all have been translated.

THE PRESIDENT: Yes, it would, but there may be other objections to the documents besides their being cumulative.

MR. BARRINGTON: There will be, according to the prosecution's submission, a very large number that are cumulative in toto.

THE PRESIDENT: There will be a very large number?


THE PRESIDENT: Yes, but the point was that being translated, they are there already.

MR. BARRINGTON: Yes, my Lord.


MR. BARRINGTON: That is the only point the prosecution has against those. The thing is, my Lord, the prosecution says they are cumulative. Of course, Dr. Horn might not say so and perhaps he would welcome a ruling as to whether they should be used or not.

THE PRESIDENT: No. What I was suggesting to you was, that if the only objection to them was that they were cumulative, they may just as well go in, be put in evidence, because they have already been translated - it saves time - than to have them all argued.

[Page 294]

MR. BARRINGTON: Yes, my Lord, unless Dr. Horn wishes to read any of these documents and refer to them specifically.

THE PRESIDENT: Well, you mean that he might read them all and then ...

MR. BARRINGTON: I do not know what your Lordship is going to allow him to do. I understood perhaps he would read some of them.

THE PRESIDENT: Presumably, if he reads many that are cumulative, we shall stop him.

MR. BARRINGTON: I will pass on to the second group, which are numbers 48 to 62 inclusive, and those are on the subject of allied rearmament and alleged warlike intentions before the outbreak of war. No. 54 appears to be missing from my book, and I don't know whether it was intentionally left out.

The Prosecution would object to all those on the ground that they are irrelevant. They are in Book 3, my Lord.

THE PRESIDENT: No. 59 is different, is it not? No. 59 is dealing with a speech by Sir Malcolm Macdonald about the colonies.

MR. BARRINGTON: Yes. That is not exactly rearmament, but of course it is on the same theme in a way, that it is a provocation to war. It is certainly in rather a different category from the others.


MR. BARRINGTON: The third group deals with Poland, and that is a very large group because it includes all the negotiations before the outbreak of the war, and the numbers involved in that group are 74 to 214.

I think it would perhaps be convenient to break that group down into two phases. The first one would be the questions of the minorities and Danzig and the Corridor, and the incidents connected with them, and the second phase - slightly overlapping in time, but roughly it follows after the other one - would be the diplomatic events involving other countries than Poland, that is to say, very approximately from the 15th of March, 1939 onwards. The first phase of that group would be numbers 74 to 181, and the second phase 182 to 214.

Now, in regard to the first phase, there are two points. The prosecution says that these are, with very few exceptions, irrelevant, because they treat of incidents, and the problems arising out of these minority questions, and the prosecution says those are irrelevant for two reasons. One of the documents among them consists of an exchange of notes between the German and Polish governments on the 28th of April, 1939. That is TC-72, No. 14, in Book 5. And that exchange of notes consists of a confirmation that both parties unconditionally renounce the use of force on the basis of the Kellogg Pact. That had been done previously, on the 26th of January, 1934, as appears in another document here. It is on Page 2 of my note, TC-21.

THE PRESIDENT: What was the date of TC-72?

MR. BARRINGTON: TC-72, No. 14, was the 28th of April, 1939.


MR. BARRINGTON: And on the footing that the two countries unconditionally renounced the use of force on the basis of the Kellogg Pact, added to the fact that the defendant Ribbentrop has himself said that during 1938 Germany was on very good terms with Poland. And also there was a declaration made by Germany and Poland on the 5th of November, 1937, about minorities - that is No. 123 in this list of documents; it occurs at the top of Page 4 in the note - in view of these things the prosecution says that these accounts and reports of these incidents and minority problems are irrelevant and very old history. I think perhaps I might ...

THE TRIBUNAL (Mr. Biddle) (Interposing): You have them all cumulative or irrelevant starting with 76. You mean the cumulative?

MR. BARRINGTON: Well, I am afraid to say, your Honour, this was originally got out purely as a working note, and that is rather an error. It should be irrelevant on account of TC- 21.

[Page 295]


MR. BARRINGTON: My Lord, I was going to say that perhaps I might anticipate an objection that Dr. Horn has been good enough to tell me that he will make to this, that yesterday he contended that certain incidents before Munich had been condoned by the Munich Agreement, and that the argument I have just put up is on the same lines as that which the Tribunal turned down yesterday.

But, of course, there is this difference, that the Munich Agreement was negotiated in ignorance of the Fall Gruen, and that from the point of view of condoning previous incidents, it is not on the same footing as an agreement negotiated in full knowledge of the circumstances.

So, my Lord, taking Group 3, Poland and the first phase of it, the prosecution would suggest, looking at the middle column on Page 2, allowing No. 75, which is the Polish Treaty of 1919, and TC-21, which I have already mentioned, which reaffirmed the Kellogg Pact, and No. 123, and TC-72, No. 14 and 16 which I have already mentioned. The remainder, perhaps, might all be said to be irrelevant; but it would be reasonable, perhaps, to allow Nos. 117, 149, 150, 153, 154, 159, 160, 163 and TC-72, No. 18. These were largely discussions between Ambassadors and heads of State which may have rather more importance than the other documents in this particular group.

As a matter of fact, my Lord, I think they are all in anyhow, those that I have just mentioned.

That goes up to 182. Starting now at 182, and the first five, 182 to 186 -

THE PRESIDENT (Interposing): Why do you object to 155, which is the calling out of Polish reserves, 155 to 158?

MR. BARRINGTON: Well, my Lord, the objection to that was simply based on the fact that -

THE PRESIDENT (Interposing): I think they am all mentioned in the conversation which is 159, and that is probably the reason.

MR. BARRINGTON: Yes. I am obliged, your Lordship. I think that it is so, but I do not think the objection to them could be very strong.


MR. BARRINGTON: Nos. 182 to 186, my Lord, are reports by the German charges d'affaires in various capitals, and the prosecution say that those would not be proper evidence.

THE TRIBUNAL (Mr. Biddle): Why not?

MR. BARRINGTON: They are just accounts of the German charge d'affaires' observations, and conclusions of fact, for the most part, by him, transmitted to the Foreign Office.

MR. BIDDLE: Do you mean they are irrelevant on the ground of hearsay?

MR. BARRINGTON: I beg your pardon.

MR. BIDDLE: Because they are hearsay - they should not be admitted, is that what you mean?

MR. BARRINGTON: Well, they are, of course, partly hearsay. They are also vague, and again, they are transmitted with an object in view. At least that has been the submission of the prosecution, that they are transmitted to colour the picture from the German point of view.

MR. BIDDLE: Would you admit these if they were made by charges d'affaires of other States?

MR BARRINGTON: If they were made by charges d'affaires of other States.


MR. BARRINGTON: Well, they would be admissible if they were put in as Government reports by Allied nations under the charter, but they are not really admissible if they are German documents.

MR. BIDDLE: I am sorry; I do not know what you mean.

MR. BARRINGTON: Well, Article 21 of the Charter -

MR. BIDDLE: I am sorry. Perhaps I do not make myself clear. I do not quite

[Page 296]

understand why these are different from any other official reports made by charges d'affaires of any country. Is it because they are German reports?

MR. BARRINGTON: Because they are German reports.

MR. BIDDLE: Oh, I see. In other words, you think German reports should be excluded.

MR. BARRINGTON: I think under the Charter they should be excluded except, of course, if they are used by the prosecution as admissions against the German Government itself.

THE PRESIDENT: We are going to hear you in a moment, Dr. Horn. Anyhow, Mr. Barrington, your objection to 182 to 214 is that it is self-serving evidence and therefore not admissible; is that it?

MR. BARRINGTON: That is right, my Lord.

THE PRESIDENT: Is there any other objection to them?

MR. BARRINGTON: Well, they are, as I said, conclusions of fact drawn by an observer in a foreign country. They do rather tend to get rather vague.

THE PRESIDENT: That might apply to a great deal of the evidence.

MR. BARRINGTON: Numbers 187 to 192 and TC 77 there is no objection to.

Number 193 and 194 are German Foreign Office memoranda and they are mere discussions, internal to the German Foreign Office. 193 is a memorandum of the State Secretary of the Foreign Office and it deals with a visit to him of the French Ambassador. And Number 194 is similar, a visit of the British Ambassador.

No. 195, that is Sir Nevile Henderson's "White Paper," "Failure of a Mission," and there are a number of extracts from that. It is a book, and there are a number of extracts from that in the document book, and it is contended that they are cumulative of evidence which has already been given, and that in particular most of them are really provocative. That applies particularly to the first extract.

THE PRESIDENT: What do you mean by provocative?

MR. BARRINGTON: Well, your Lordship will see that in the first extract there are some rather strongly worded opinions.

THE PRESIDENT: Which book are they in?

MR. BARRINGTON: They are in Book Six, my Lord. There are some rather strongly worded opinions about the position of Soviet Russia.

THE PRESIDENT: Yes, go on.

MR. BARRINGTON: Nos. 196 and 197 are German memoranda and reports for Foreign Office use, and they cover the same category as 193 and 194. One of them is internal to the Foreign Office and the other from the German Charge d'Affaires in Washington.

Numbers 198 to 203 are all right.

Number 204 is objected to as not being evidence; it is a memorandum of the Director of the Political Department of the Foreign Office in Berlin, and it merely talks of a report in the "Berliner Borsenzeitung." It is merely second- hand evidence.

Number 205 and 206 are not objected to.

The next one, TC-72-74 is not objected to.

Number 207 is the same document as the previous one. It is a mere repetition.

Now, number 208, my Lord, consists of a collection of extracts from the British "Blue Book," and I am afraid I have not had time to check up which of them are actually in evidence already. But, it is clear that the majority of them are obviously relevant, but it is suggested that those in the left-hand column do include unnecessary detail in view of the rest of them.

Number 209, there is no objection.

Number 210 is a conversation between the defendant Ribbentrop and Sir Nevile Henderson, on the 30th of August, 1939, and that of course has been the subject of evidence already and is perhaps in any event cumulative for that reason.

Number 211-A and 211-B are just repetitions of documents quoted from the British "Blue Book."

[Page 297]

Number 212 is a Polish wireless broadcast, and number 213 is a German communique to the German public, and it is contended that those have no evidential value.

Number 214 is an extract from a book which the Tribunal has already refused to the defendants.

Now, the next page of the note, my Lord, deals with my next group, which is Norway and Denmark.

THE PRESIDENT: Group four, is it? Group Four, is that right?

MR. BARRINGTON: That is group four, my Lord, yes.

215-A and 215-B deal with the case of Iceland and Greenland. They are not very long documents; they are just considered to be irrelevant. Objection to them could not be very strong.

There is no objection to 216-A and 216-B, which are already in evidence, I think and D-629 is also already in evidence.

D-217 is simply an interview which the defendant Ribbentrop gave to the Press, which the prosecution says is not proper evidence.

Number 004-PS is already in evidence.

Numbers 218 and 219, I think, are also in evidence.

Number 220 again is objected to as it is simply an interview with the Press.

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