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

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
4th April to 15th April, 1946

One Hundred and First Day: Saturday, 6th April, 1946
(Part 6 of 6)

[SIR DAVID MAXWELL FYFE continues his cross examination of Wilhelm Bodewin Johann Gustav Keitel]

[Page 89]

Q. You say you had a different view. Will you just look at a letter from Herr Terboven, who was in charge in Norway, Document PS-870, and it is Page 85, 71(a), Exhibit GB 307. This is a report from Terboven for the information of the Fuehrer and I want you to look at paragraph 2, "Counter Measures," sub-paragraph 4. Do you see it? Have you got it, defendant? I am sorry, I did give you the number, probably you did not bear it, 71(a), Page 71(a) of the document book. So sorry I did not make it clear.

SIR DAVID MAXWELL FYFE: My Lord, I am told that this has been put in by French Prosecution as Exhibit RF 281. 1 gave it a GB number, as I recall.

THE PRESIDENT: What number is it?



Q. Do you find section 2, paragraph 4. That is:

"Now I have just received a teleprint from Field Marshal Keitel, asking for a regulation to be issued, making members of the personnel, and, if necessary, their relatives, collectively responsible for cases of sabotage occurring in their establishments (joint responsibility of kinsfolk). This demand serves a purpose and promises success only if I am actually allowed to perform executions by firing squads. If this is not possible, such a decree would have exactly the opposite effect."
Opposite the words "If I am actually allowed to perform executions by firing squads" there is the pencil note by you, "Yes, that is best." So that is a third example where, I suggest, you, yourself, are approving and encouraging the shooting of relatives for the act of some member of their family. What do you say to that, your own pencil note?

A. I did make that marginal note. An order given in accordance with it was worded differently. A reply followed which was worded differently. I wrote that note.

Q. That's what I wanted to know. Why did you write this remark, "Yes, that is best," approving of a firing squad for relatives of people who had committed some occupation offence in Norway? Why did you think it was best that there should be a firing squad for the relations? Why?

A. It was not done and no order to that effect was given. A different order was given.

Q. That's not what I'm asking, and I shall give you one more chance of answering it. Why did you put with your pencil on that document, "Yes, that is best?"

A. I am no longer in a position to explain that today, in view of the fact that I saw hundreds of documents daily. I wrote it and I admit it now.

Q. Of course, unless it means something entirely different from what you've written, it meant that you approved of it yourself and thought it the best course, that the relations should be shot by a firing squad.

SIR DAVID MAXWELL FYFE: I think your Lordship said that you wished to adjourn.


SIR DAVID MAXWELL FYFE: I am not finished, my Lord. I have a few matters for Monday morning.

THE PRESIDENT: Well, the defendant can return to the dock, and we will proceed with the other applications.

Sir David, shall we deal with these applications in the same way as we have done before?

SIR DAVID MAXWELL FYFE: Yes, your Lordship. The first one that I have is an application on behalf of the defendant Kaltenbrunner for a witness called Hoess, who was former Commander of the Auschwitz Concentration Camp. My Lord, there is no objection on the part of the prosecution to that.

[Page 90]

THE PRESIDENT: So that is the application which has been made by a great number of the defendants' counsel.

SIR DAVID MAXWELL FYFE: Oh, yes, your Lordship is quite right.

My Lord, as Commandant of the Auschwitz Concentration Camp, the prosecution feels that he could contribute to the information of the Tribunal, if no objection is forthcoming.

THE PRESIDENT: Dr. Stahmer, I see that you are among the counsel who applied for him. Is there anything you wish to add about that?

DR. STAHMER: I have nothing to add to my written application.

THE PRESIDENT: Thank you. Then the Tribunal will consider this.

SIR DAVID MAXWELL FYFE: My Lord, the next one is Dr. Navile. Dr. Navile was allowed as witness to the defendant Goering, provided he can be located. He has been located in Switzerland and I understand he has informed the Tribunal that he sees no use in his coming here as a witness for Goering, and he is now asked for by Dr. Nelte, counsel for Keitel, to prove that prisoners of war had been treated according to the rules of the Geneva Convention, Dr. Navile having been a representative of the Red Cross. Dr. Nelte, I am told, will be satisfied with an interrogatory, and the prosecution have no objection to an interrogatory.


DR. NELTE: That is correct. I agree, providing that I am allowed to put my questions to Dr. Navile in writing.

But may I add something here, not to this application to present evidence, but with reference to another application, which I have already submitted to the prosecution through the translating division yesterday or the day before. My application to admit Hitler's stenographers as witnesses was rejected by the Tribunal as irrelevant. I have now received a letter and an affidavit from one of these stenographers, and in that affidavit I find a passage which refers to Keitel's attitude to Hitler at interviews and conferences with him.

Public opinion has criticised the defendants as being in the habit of quoting dead men whenever they want to say anything in their favour; and similar statements have been made in this court. The defendant Keitel requests that the part of the affidavit which I have already submitted, and which I intend to submit, be admitted as an affidavit so that the witness can still be rejected and yet it will be possible for me to submit that passage of the affidavit with the agreement of the prosecution.

SIR DAVID MAXWELL FYFE: If Dr. Nelte, my Lord, will submit the passage, we will consider it, but I have not had the chance of doing so until now.

THE PRESIDENT: Well, if you will carry out that course and if you have no objection to it.

SIR DAVID MAXWELL FYFE: Very well, you will let me have a copy of it?

DR. NELTE: Certainly.

SIR DAVID MAXWELL FYFE: My Lord, the next application is on behalf of the defendant von Schirach, a request to submit an affidavit of Dr. Hans Carossa. The gist of the affidavit is that the defendant tried to keep himself independent of Party directives in matters of literature and art and that, while Gauleiter in Vienna, he repeatedly intervened on behalf of Jews and concentration camp inmates. My Lord, the prosecution has no objection to an affidavit being filed.

The next is an application on behalf of the defendant Funk for interrogatories to be submitted to Mr. Messersmith.

THE PRESIDENT: Just wait a minute.


THE PRESIDENT: Yes, Sir David?

SIR DAVID MAXWELL FYFE: My Lord, the next is an application on behalf of the defendant Funk, asking for interrogatories to be submitted to Mr. Messersmith, dealing with Funk's relation to the Party and his work in the Reich Ministry of Propaganda. My Lord, the prosecution have no objection, but remind the Tribunal

[Page 91]

that the defendant Funk has already, on 15th March, asked permission to submit another affidavit to Mr. Messersmith. The prosecution did not raise any objection, but the Tribunal has not, as far as we know, granted that yet. So I wanted the Tribunal to know there was a previous request -

THE PRESIDENT: Do you mean an affidavit or interrogatory on 15th March?

SIR DAVID MAXWELL FYFE: Interrogatories.

THE PRESIDENT: Interrogatories? Surely we must have dealt with it.

SIR DAVID MAXWELL FYFE: Well, that is the information that my office had. They haven't seen the -


SIR DAVID MAXWELL FYFE: In case the Tribunal has not dealt with it, we want to point out that there is one outstanding. We have no objection to either.

Then the defendant Rosenberg requests Hitler's decree to Rosenberg of June, 1943. There is no objection on the part of the prosecution. I am told that we cannot trace any previous application, but the position at the moment is that we haven't any objection to it.

Then, my Lord, the next is von Neurath, an application for a questionnaire, for Professor Kossuth, long resident in Prague. Really they ask for interrogatories, my Lord, there is no objection to interrogatories.

Then, my Lord, there is an application in reverse - if I may so put it - from Dr. Dix on behalf of the defendant Schacht, the downgrading of Herr Huelse, who was drafted as a witness, to an affidavit. My Lord, we have no objection to that.

DR. DIX (counsel for the defendant Schacht): This is the witness Huelse. He was granted to me as a witness. In order to shorten and simplify the proceedings, I have decided to forfeit the right to hear the witness because there was an affidavit. I have received the affidavit. While my application to dispense with the witness was pending, however, the witness arrived in Nuremberg. He is here now, and I think therefore, that it will be best for him to stay and for me to be allowed to examine him by confronting him with his own affidavit, asking him to confirm it and then putting some additional questions to him. I think that would be much more practical than having the witness here to no purpose, sending him back again and retaining only the affidavit. My purpose was, in any case, partly to avoid the complications connected with getting him here.

SIR DAVID MAXWELL FYFE: Withdraw the application to have the affidavit -

THE PRESIDENT: Is the witness Huelse a prisoner or not, or an internee?

DR. DIX: He is a free witness. He is not in detention and he is free to move about Nuremberg.

THE PRESIDENT: Can he remain here until the defendant Schacht's case comes on?

DR. DIX: I hope so. He has told me that he can stay and that he is willing to do so.

SIR DAVID MAXWELL FYFE: My Lord, we have no objection. The Tribunal has already granted him as a witness. If Dr. Dix wants him as a witness, of course we have no objection to it.

The next one is an application on behalf of the defendant Streicher, for an affidavit from a Dr. Herold. To put it quite shortly, the prosecution suggests that it should be interrogatories rather than an affidavit, and on that basis we would make no objection.

My Lord, there is only one thing I have to say. I had a most useful discussion with Dr. Dix last night, following out the Tribunal's suggestion of going through the documents. Dr. Dix was most helpful in explaining the purpose of his documents and what they were. I do suggest that if any of the defence counsel when they are explaining the documents would also care to explain the purport of their witnesses - I don't want to embarrass them in any way - but if they would voluntarily explain the purport of witnesses, either to Mr. Dodd or myself, we might be able to save them a great deal of time by indicating whether the evidence of that witness would be agreed to or might be the subject of objection.

[Page 92]

I suggest it now as we are going to meet over the documents, and if they would extend it to witnesses, I am sure it would prove a most profitable co-operation.

THE PRESIDENT: You are suggesting, Sir David, are you, that they should explain to you the nature of the evidence which the witnesses are going to give?


THE PRESIDENT: And if the prosecution Were not going to dispute it, that it might be incorporated in an affidavit?

SIR DAVID MAXWELL FYFE: Yes, that we could probably dispense with the witness, and probably incorporate that in an affidavit. Of course, I have been told the general purport of the witness, because I attended on the application, but if they could elaborate on it a little more, as often happens when they see the witness and let me know what the scope of the witness's testimony would be, I could probably concede, either in whole or in part, and save them a lot of work and the Tribunal a lot of time.

THE PRESIDENT: Well, I think the Tribunal would like to know whether the defendants' counsel think that is a possible course, whether it might lead to some shortening of the defence. Could Dr. Dix possibly tell us whether he thinks it would be possible?

DR. DIX: Of course, I cannot make any statement on the views of my colleagues, since I cannot read their minds. All I can say at the moment is that I will recommend to my colleagues as unusually helpful and practical the kind of conversation which I had the honour of having with Sir David yesterday. Personally, I think that my colleagues too will agree to this procedure unless there is any particular objection to it, which is, of course, always possible. I cannot say any more at the moment.

THE PRESIDENT: You understand what Sir David is suggesting, that such a conversation should apply not only to documents but also to witnesses, and if you could indicate rather more fully than you do in your applications what the subject of their evidence was going to be, possibly the prosecution might be able to say in those circumstances that upon those matters it would not propose to dispute the evidence and therefore it might be incorporated in an affidavit?

SIR DAVID MAXWELL FYFE: My Lord, if your Lordship allows me to interject, if they care to bring a statement on a particular witness's testimony, the prosecution would, I am sure, in many particulars be prepared to say, "Well, you produce that statement on that point and we will admit it without any formality."

THE PRESIDENT: Perhaps, Dr. Dix, you and the other counsel for the defendants could consider that matter. DR. DIX: I share your view entirely, my Lord, as you have just stated it. I discussed both the witnesses and the documents with Sir David and that was very helpful and, accordingly, I will ...

THE PRESIDENT: If that is all we need do at the moment, then -

SIR DAVID MAXWELL FYFE: If your Lordship pleases, yes.

THE PRESIDENT. The Tribunal will adjourn.

(The Tribunal adjourned until 8th April, 1946, at 10.00 hours.)

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