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 11 of 11)

[Page 301]

DR. DIX: I believe, without wishing to criticise the legal value of the statements which we have heard here; that there has been some confusion of ideas. We must keep the distinction quite clear in our minds. (1) Is a piece of evidence - and that applies to witnesses as well as documents - relevant? (2) Is a piece of evidence as such useful? (3) Is a piece of evidence cumulative and therefore to be rejected?

If the Tribunal rules a piece of evidence not relevant, nor useful nor cumulative, then it must refuse the application for it at this stage in the proceedings. On the other hand, the question of the credibility of a piece of evidence - that is, whether the answer of a witness is to be believed or not, whether the contents of a document may be considered credible - whether expositions set forth in a White Book, for instance, are to be believed or not believed - that, in my opinion, is a question which can be decided only when the evidence in question has been brought into the proceedings and the court has taken judicial notice of it and is able, when freely evaluating the evidence - a course which is open to the Tribunal - to pass judgement on its credibility or otherwise. For that reason I think that at the present moment there seems to be no cause to say, for instance, that this document cannot be used because it is part of a White Book published by the German Government. No one will deny that a White Book, that is, a publication - an official publication - issued by any government, can be useful and relevant evidence. Whether the passage read and introduced into the proceedings is such that the Tribunal can give it credence, is a question that can be decided after the evidence in connection with the White Book has been introduced into the proceedings and the Tribunal has taken official notice of it.

Now, I turn to the question of relevancy and effectiveness. The representative of the British prosecution has stated here that the reports sent by the German ambassadors to their Foreign Minister are, per se, not useful. At least, that is the

[Page 302]

way I understood him. They will only be admitted if the prosecution wishes to use them. In other words, they are only to be admitted if the prosecution wishes to use them to the detriment of the defence. I do not think that this point of view can be maintained. The representative of the British Delegation cited Article 21 of the Charter in this connection. Article 21 of the Charter has nothing whatsoever to do with this question. Article 21 of the Charter merely states, so far as I remember it - I do not have the Charter at hand, but I believe I know the contents of it very well - that documents referring to the investigation by the victorious Powers of war crimes committed in their own countries do not have to be enumerated, but may merely be submitted to the Tribunal for judicial notice. This question, however, has nothing whatsoever to do with the question of the usefulness or relevancy of a report submitted at any time by a German ambassador to his Foreign Office. Whether this report has been admitted or is to be admitted, can be decided according to whether the Tribunal considers relevant the subject which it concerns and which it is to prove, if the fact which is to be proved by it is considered relevant by the Tribunal and is brought by one or both parties correspondingly. Then, in my opinion, the Ambassador's report should be admitted, and after its admission the Tribunal can, by freely weighing the evidence, consider the value of the evidence, that is, its credibility - and, moreover, its objective as well as its subjective credibility. So much for the clear-cut differentiation of the concepts of relevancy and usefulness and for the concept of the value of evidence, that is, the objective and subjective credibility of evidence.

Now, with regard to the question of the cumulative. It is certain that every jurist in this court-room agrees that cumulative evidence should not be admitted, but the question of whether evidence is cumulative may in no circumstances be judged formally; so to speak, mechanically. I can well imagine that a question with the same wording as one that has already been put need not necessarily be cumulative, for reasons which I will enumerate in a moment, and that a question which in form does not resemble one already put may nevertheless be cumulative because it requires an answer from the witness regarding the same evidence, but expressed in different words. The fact that a question may be identical in wording with one which has already been put does not necessarily mean that it is cumulative, as shown by the old proverb "Si duo faciunt idem non est idem." If, for instance, I ask a witness who bears the stamp of a fanatical adherent of the Nazi regime for his subjective impression of something and then put the same question to a witness who is known to be a fanatical opponent of the Nazi regime, then these two questions are certainly not cumulative, for it is of paramount importance if the Tribunal is to be in a position to form an opinion and make a decision, to find out whether the same impression is produced on two worlds, so to speak - on two diametrically opposed persons. Therefore one has to take the witness into consideration in judging whether a question is cumulative or not. A further example of the fact that a question which is exactly similar to one previously put need not be cumulative would be, for instance, if I put the question to the defendant and then to a witness who is not concerned. In saying this I wish in no way to disparage the evidence given by the accused under oath. That is far from being my intention. In principle, the testimony of both the witnesses is alike. There is, however, a great difference - in order not to take too long I will cite only one example - whether when investigating some phase of the defendant's inner life about which he himself is best informed, I question a witness who had an impression of this incident concerning the defendant, or whether I question the defendant himself for whom this inner impression is a part of the psychological background of his deed.

I should like to stop at this point, in order not to take up too much of the Tribunal's time with theoretical expositions. My intention in making this statement was only to request the, High Tribunal in making its decision - I repeat - in regard to relevancy and usefulness, to make a clear distinction as to the value to be attached to subjective evidence after it has been admitted, and to ask the

[Page 303]

Tribunal, when considering whether evidence is cumulative, not to be guided solely by the outward form of the question or the document, but to investigate whether it would not be in the interests of truth and give a deeper insight into the case to put the same question to different people, or to have the same question confirmed - or not confirmed - by written statements by various people.

I may ... I have a ... My conscience is uneasy about this academic exposition, but I hope that the clarification which I have tried to make, and in which I may perhaps have succeeded to some extent, may help to shorten later stages of the proceedings to some extent.

THE PRESIDENT: The Tribunal would like to know how long you think you are going to be over these documents, because we are getting further and further behind. How long do you anticipate you will be? Have you made up your mind yet what documents you are prepared to withdraw, if any?

DR. HORN: Mr. President, I should need about two more hours - that is without objections on the part of the prosecution, and I believe that in that time I can finish my entire presentation, including the reading of the most important passages which are limited to a very few documents. Therefore, without objections, about two hours.

THE PRESIDENT: You have heard the prosecution's objections. We have heard them. We will consider them, and we will consider any answer that you make to them, but we do not desire at this stage, when we have all these other defendants' cases to be heard, that you should go into these documents in detail now and read them, and we hope that you will not think it necessary to read from these documents after you have answered the objections of the prosecution to certain of the documents.

DR. HORN: I have the intention ...

THE PRESIDENT: Have you the idea that you had finished your argument in answer to the prosecution's objections or not? Did you intend to deal further with the admissibility of any of these particular documents or not?

DR. HORN: In accordance with the wishes expressed by the Tribunal I intend to submit these documents in groups, with a brief connecting text, and in each group where the prosecution has made objections, to add a few remarks on the points raised. I do not intend to do any more.

THE PRESIDENT: Dr. Horn, you see, the position is this. The prosecution has objected to certain documents, on certain grounds, and we want to give you a full opportunity to answer those objections. When you have made your full answer to those objections, we think it will be appropriate we should adjourn and decide upon those objections and upon your arguments. Do you see? That we should rule - that, after you have given your answer to the objections, we should adjourn and decide which of the documents we rule to be admissible in evidence.

DR. HORN: If the Tribunal intends to give its ruling after I have taken my position on the objections; of the prosecution, then I ask that I be given an opportunity, for to begin with I would like ...

THE PRESIDENT: Wait a moment, Dr. Horn. Because, you see, it is 5 o'clock, and we shall not be able to conclude it tonight.

Dr. Horn, if you could conclude your argument in answer to the questions of principle which have been raised by the prosecution, now, we think it would be the most convenient course if you could do it in a fairly short time. I mean, you have heard what the prosecution says about these various groups, and it would be more convenient, we think, if you could answer that in the space of a quarter of an hour now.

DR. HORN: First of all, I would like to refer to documents numbered 48 to 61. In regard to these I can only take the following position.


DR. HORN: No, 48 to 62. Perhaps I may again use these pages of the prosecution, with their objections, as a basis. Documents 48 to 61 were rejected as irrele-

[Page 304]

vant, but these documents deal with rearmament and preparation for war by the opposite side. I can only arrive at the basic motives animating Hitler and Ribbentrop by contrasting the German evidence with the evidence given by the other side. I cannot judge of the illegality of an action unless I know all the facts. Therefore, I consider these documents highly relevant.


DR. HORN: The next group of decisive importance consists of the documents dealing with the Polish minority problem. The representative of the prosecution has said that by the German-Polish agreement of 5th November, 1937, the minority problem was sanctioned by both countries. That is, all violations of International Law in regard to minority questions would be considered a closed chapter if they had occurred before that year. This view is certainly not correct, because one agreement cannot sanction the violation of a prior agreement. Moreover, during the negotiations for the 1934 pact between Germany and Poland it was expressly agreed as I can prove by means of these documents, that after a general political agreement had been made, the minority question and that of Danzig and the Corridor would be settled.

These questions were expressly held in abeyance pending a further settlement by agreement, and although no such settlement of the two questions was made, the documents dealing with the violation by the Poles of International Law, with regard to minority pacts, cannot be rejected on account of this agreement for regulating this question.

The second objection for this group is the fact that the minority problem is call irrelevant. Previously I stated briefly that the British Prime Minister Chamberlain himself realised the need for regulating this problem. I will submit this document, too; it is No. 200 in my document book. All the political circles concerned thought that the solution must be formed for this question; and I therefore consider it relevant. I ask the Tribunal therefore to admit the documents referring to it.

These documents cannot be rejected as cumulative, as was done here, for, on the strength of these documents I wish to prove that these minority pacts have been repeatedly violated since 1919, and I submit documents from the International Tribunal of the Hague and the League of Nations at Geneva showing that these violations took place during a period of over twenty years.

I accept the objections made by the Soviet delegation to documents number 286 to 289; and I withdraw documents 286 to 289.

Since the Tribunal recently objected to the book "America in the Battle of the Continents" I also withdraw documents presented under No. 290, 1 to 5. I have also referred tot hat book under several other numbers and I withdraw also all those numbers which refer to the book "American in the Battle of the Continents." As for the Embassy reports, I again refer to my statement and the basic statements made here a moment ago by my colleague Dr. Dix. I am convinced that, on principle, and on the strength of the legal arguments adduced and also in view of the fact that the prosecution has used such reports extensively, the defence should also be granted the privilege of referring to these reports, especially as they formed the foundation on which German political opinion was based.

I shall not be able to dispense with the files of the French General Staff either for the reasons I have stated. It has been said that the documents 221 to 268 are irrelevant. They are not irrelevant, because we had neutrality pacts with those countries, and in the neutrality pacts it was agreed that Germany would respect their neutrality as long as the other side also respected it. As it would now be possible to prove that the other side did not respect this neutrality, the proof of whether a war of aggression against these countries by Germany..

THE PRESIDENT: The point that M. Champetier de Ribes was making was that France was out of the war by 1940. Therefore documents which were drawn up

[Page 305] by the French General Staff in 1940 had no relevance in 1941. Is that not so? That is the point that he was making.

DR. HORN: Yes. However, the fact that breaches of neutrality were committed by France and were known to the German Government at the time, alters the legal situation completely. You cannot say that Germany waged an aggressive war against these countries when we knew through our Intelligence Service that our opponents intended to occupy these countries, and did in fact do so, by sending out staff officers. Thus it was the other side which was guilty of violation, and the files which have been found have only confirmed the intelligence reports submitted to us at the time; I say, at the time.

Therefore, you cannot accuse Germany of violating the neutrality pact in these cases. I would like to ask the Tribunal, therefore, to admit those files for the reasons stated. With reference to the other documents, I ask to be permitted to make my statement when I submit the documents to the Tribunal in the presentation of evidence?

THE PRESIDENT: You see, Dr. Horn, we want to rule upon it when we have heard your arguments; we do not want to have to rule again over every document. We want you to take them in groups, in the way the prosecution has, so that we may make up our minds and rule.

DR. HORN: These are the main objections which I have to make to the representatives of the prosecution. I ask the Tribunal once more to differentiate between considerations of principle raised by Dr. Dix, and the factual considerations raised by myself with regard to the individual groups?

THE PRESIDENT: Very well, we will adjourn now.

(The Tribunal adjourned until 3rd April, 1946, at 1000 hours.)

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