[Page 139]

CROSS-EXAMINATION - Continued by DR. DIX:

Q. Witness, it has been pointed out that I am putting my questions too soon after your answers and that you are replying to them too quickly.

MR. JUSTICE JACKSON: I should like to take up a matter before the examination of the witnesses, if I may ask the indulgence of the Tribunal.

I regret to say that this matter of printing documents has proceeded in its abuses to such an extent that I must close the document room to printing documents for German counsel. Now, that is a drastic step, but I know of nothing less that I can do and I submit the situation to the Tribunal.

We received from the General Secretary's Office an order to print and have printed a document book number one for Rosenberg. That document book does not contain one item in its 107 pages that by any stretch of the imagination can be relevant to this proceeding. It is violent anti-Semitism and the United States simply cannot be put in the position, even at the order, which I have no doubt was an ill-considered one, of the Secretary of the Tribunal, of printing and disseminating to the Press just plain anti-Semitism; and that is what this document is. Now, I ask you to consider what it is.

I should say it consists of two kinds of things: anti- Semitism and what I would call, with the greatest respect to those who think otherwise, rubbish; and this is an example of the rubbish we are required to print at the expense of the United States, and I simply cannot be silent any longer about this.

"The philosophic method suited to bourgeois society is the critical one. That holds true in a positive as well as a negative sense. The domination of purely rational form, the subjugation of nature, the freeing of the autonomous personality, all that is contained in the method of thinking classically formulated by Kant. Likewise, however, the isolation of the individual, the inner depletion of nature and community life, the connection with the world of form which is contained in itself and with which all critical thinking is concerned."

Let us look at some of the anti-Semitism.

Now, let us look at what we are actually asked here to disseminate, Page 47 of this document book:

"Actually, the Jews, like the Canaanites in general, like the Phoenicians and Carthaginians, represent a bastard population...."

"The Jews are arrogant in success, obsequious in failure, shrewd and crooked wherever possible, greedy, of remarkable intelligence, but nevertheless not creative."

[Page 140]

Most of this book, as far as we have been able to check it, has already been rejected by the Tribunal; and nobody pays the least attention to the Tribunal's rejection, and we are ordered to print. Now, with the greatest deference, I want to say that the United States will print any document that a member of this Tribunal certifies, but we can no longer print these things at the request of the German counsel nor on the ill-considered directions which we have been receiving.DR. THOMA (counsel for defendant Rosenberg): At the moment I want merely to explain that on 8th March, 1946, I was expressly given permission by the Tribunal to quote excerpts from philosophical books in my document book.

THE PRESIDENT: Yes, Dr. Thoma.

DR. THOMA: Consequently, I have based my work on the assumption that Rosenberg's ideology is an offspring of the so-called new Romantic philosophy and have quoted philosophical excerpts from serious new Romantic philosophical works, works which have been recognised by science.

Secondly, your Honours, I have earnestly endeavoured not to submit any anti-Semitic books. What has just been read to me must be simply mistakes in translation. I have quoted the work of a famous evangelical theological teacher, Heman-Harling; and secondly, I have quoted a work of a recognised Jewish scholar, Isma Elbogen; and, thirdly, I have quoted from an excerpt from the periodical "Kunstschatz," written by a Jewish university professor, Moritz Goldstein.

I have deliberately refrained from bringing anti-Semitic propaganda into this court-room. I request, therefore, that the documents quoted by me be investigated to see whether they are really trash and literary rubbish.

I still maintain that the works which I have quoted were written by American, English and French scholars, recognised scholars, and that the quotations which Mr. Justice Jackson has just read about the bastard race, etc., come, as far as I know, from non-German scholars. But I should have to look at that once more, At any rate, may I ask the Tribunal that my collective excerpts be investigated to see whether they are in any way non-scientific or not pertinent.

THE PRESIDENT: Mr. Justice Jackson, the Tribunal thinks that there must have been some mistake in sending to the translating division this book of documents without their having been presented first to counsel for the prosecution. The Tribunal made an order some time ago, saying that counsel for the prosecution should have the right to object to any document before it is sent to the translating department.

Some difficulty then arose because documents had been mostly in German. There was a difficulty about counsel for the prosecution making up their minds as to their objections until they had been translated. That difficulty was presented to us a few days ago; I think you were not in court at the time, but no doubt other members of the United States counsel were here. We had a full discussion on the subject, and it was then agreed that counsel for the prosecution should see counsel for the defence and, as far as possible, discuss with them and point out to them the documents which counsel for the prosecution thought ought not to be translated, and, in case of disagreement, it was ordered that the matter should be referred to the Tribunal. So that, so far as the Tribunal is concerned, it has done everything that it can to lighten the work of the translating division. Of course, in so far as documents have been presented to the translating division for translation, which the Tribunal had already denied, that must have been done by mistake because the General Secretary's office no doubt ought to have refused to hand over to the translating division any document which the Tribunal had already denied. But the general principles which I have attempted to explain

[Page 141]

MR. JUSTICE JACKSON: Well, if your Honour please, I do not think it is a mistake. It arises from a fundamental difference which this Tribunal has not, I think, made clear.

What the issues here are: Counsel says that he thinks he should try the new Romanticism of Rosenberg. We are charging him for the murder of four or five million Jews. The question here is one of ideology. The only purpose in ever referring to the anti-Semitic sentiments is the motive. There is no purpose here in trying the question of anti- Semitism or the superiority of races, the fundamental difference in viewpoint. They believe - and, of course, if they can try this issue with this Tribunal as a sounding board, it forwards their purpose - they believe in trying that issue.

The first thing we get is this book with the order to print it. We cannot tell when they are going to present something in the document room. I simply must not become a party to this spirit of anti-Semitism. The United States cannot do it, and the Tribunal's directions to counsel are simply being ignored. That is the difficulty here.

THE PRESIDENT: I do not know if you have in mind the Order which we made on 8th March, 1946, in these terms:

"To avoid unnecessary translation, defence counsel will 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 the translation of the entire document.

MR. JUSTICE JACKSON: I am calling your Honour's attention to the fact that your Honour's order is not being observed and that we are being given these documents to print without any prior notice. The boys in the press-room are not lawyers; they are not in the position to pass on these things. I do not have the personnel. My personnel, as this Tribunal well knows, is reduced very seriously. I cannot undertake, in the press- room here, after an order comes from the General Secretary's office, a review of what can be done.

THE PRESIDENT: Well, but did you ...

MR. JUSTICE JACKSON: The order is not being carried out; that is the difficulty.

THE PRESIDENT: You mean that none of these documents were submitted to the counsel for the prosecution.

MR. JUSTICE JACKSON: The documents were not submitted to counsel for the prosecution. They came to the press-room with an order to print from the General Secretary's office. That is what I am arguing, a grievance; one I shall have to remedy. We are in the very peculiar position, your Honour, of being asked to be press-agents for these defendants. We were ordered to print 260 copies of these stencils that I have. The United States cannot be acting as press-agents for the distribution of this anti-Semitic literature which we have protested long ago was one of the vices of the Nazi regime, particularly after it has been argued upon and has been denied by the Court. This, it seems to me, is a flagrant case of contempt of court, to put these documents through after the Tribunal has ruled on them and ruled out this whole document book of Rosenberg.

[Page 142]

SIR DAVID MAXWELL FYFE: May it please your Lordship, my understanding of the matter is that the Rosenberg documents had been processed - that was what we were informed - before our last discussion of the matter, and I therefore suggested to the Tribunal that the practical application of the procedure should begin with the documents of the defendant Frank. That is what I said to the Tribunal.

THE PRESIDENT: Then my recollection is that, after we made this rule of 8th March, 1946, counsel for the prosecution - I think all four prosecutors, and I rather think the document came in signed by the United States, but I am not certain of it - pointed out that there were great difficulties in carrying out this ruling of 8th March, because of the difficulty of counsel for the prosecution making up their minds about what documents were irrelevant, having regard to the fact that they had to be translated for them to do it. Is that not so?

SIR DAVID MAXWELL FYFE: That difficulty arose with Dr. Horn over the Ribbentrop documents.

THE PRESIDENT: But a written application was made to the Tribunal to vary this rule of 8th March, 1946, and it was then after that that we had the subsequent discussion in open court when we came to the conclusion that we had better adhere to the ruling of 8th March, 1946. And I see from Rosenberg that the document - these documents - had been processed already beforehand.

SIR DAVID MAXWELL FYFE: Since our last discussion, of course, we have been trying to get this procedure going. Dr. Dix has met Mr. Dodd and me on the Schacht documents, and I understand that other learned defence counsel are making arrangements to meet various members with regard to theirs. But before this time, before the matter arose sharply on the Ribbentrop documents, there hadn't been any discussion with counsel for the prosecution. That is the position.

THE PRESIDENT: But what I am pointing out is that that was because the prosecution was not carrying out the rule of 8th March, 1946. It may have been impossible to carry out, but it was not carrying it out.

SIR DAVID MAXWELL FYFE: I don't know exactly how your Lordship means, "The prosecution was not carrying it out."

THE PRESIDENT: Both the prosecution and the defence, I suppose, because the application which came to us after the ruling of 8th March, 1946, was made on behalf of the prosecution, who had such difficulties in getting translations for the documents that it proposed another ruling.

SIR DAVID MAXWELL FYFE: I am sorry, my Lord, if we haven't carried it out. It is the first time that anybody suggested this to me....

THE PRESIDENT: I don't mean to criticise you.

SIR DAVID MAXWELL FYFE: We all have taken immense trouble, everyone co-operated in every way. I wasn't aware that we were at fault; I am very sorry if we were.

THE PRESIDENT: I don't mean that, Sir David, but I think there was a difficulty in carrying this out, and I think there was a proposal that the rule should be varied. I will look into that and see whether I am right about it, I remember seeing such an application and then we had the subsequent discussion in open court in which we decided to adhere to this rule of 8th March, and no doubt this difficulty has arisen, as you pointed out, because of the Rosenberg documents having been processed before.

Probably the best course would be now ...

(Brief conference on the Bench.)

Mr. Justice Jackson, wouldn't the best course be for you to object in writing to all the documents which you object to, and then they will be dealt with by the Tribunal after argument?

[Page 143]

What I think must be done here, if we are going to get this solved, is that the Tribunal - if I may make a suggestion, which I do with great deference; I may be a biased judge of what ought to be done; I never pretended to complete impartiality - that the Tribunal name a Master to represent it in passing these things. We won't finish this by discussion between Dr. Thoma and anybody I can name. My suggestion is that an official pass on these documents before they are translated. If the Master finds a doubtful matter he can refer it back to you. We shouldn't be in the position either of agreeing or of disagreeing with them in any final sense, of course. I realise it is too big a burden to put on the Tribunal to pass on these papers in advance and too big a burden on the United States to keep printing them. Paper is a scarce commodity today. Over 25,000 sheets have gone into the printing of a book that has been rejected. I think there is no possible way except that a lawyer with some idea of relevance and irrelevance represent this Tribunal in passing on these things in advance, rather than leaving it to counsel.

I wouldn't even venture to sit down with Dr. Thoma, because we start from totally different viewpoints. He wants to justify anti-Semitism. I think it is not an issue here. It is the murder of Jews, of human beings, that is an issue here, not whether the Jewish race is or is not liked by the Germans. We don't care about that. It is a matter of settling these issues.

COLONEL POKROVSKY: With the Tribunal's permission, I would like to add a few words to what Mr. Jackson has said.

I do not wish to criticise the counsel either, but the Tribunal has already said that there may possibly be a mistake. And I would like to draw the attention of the Tribunal to the fact that this mistake has taken place too often. I will permit myself to remind you about the documents, in connection with the Versailles Treaty, which were rejected by the Tribunal in the most decided manner as not relevant; the Tribunal will remember also that a considerable amount of time was spent in listening to the reading of the documents presented by Dr. Stahmer and Dr. Horn. And I would like to remind the Tribunal about another fact, when another decision of the Tribunal was violated. Perhaps it was done by mistake; perhaps not. It took place when one of the documents which was presented by Dr. Seidl was published in the papers before it was accepted by the Tribunal as evidence. And it seems to me that it would be very useful if the Tribunal could, for the purpose of saving time, guarantee more effectively that the rules set out by the Tribunal should be obeyed not only by the prosecution, who always follow them carefully, but also by the defence counsel.

THE PRESIDENT: Yes, Dr. Thoma?

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