Chapter XXIX: Section C: of my Appendix A, that the crimes of the SS were committed, (11)

DR. SERVATIUS: I do not consider that I can forego calling him as a witness. It is of the utmost importance to have a witness who can say what conditions in the East actually were.

Witness 28, Dr. Jäger. We have a detailed affidavit, but it is extremely inaccurate. It has been submitted as Document Number D-288, Exhibit Number USA-202. I have also received the German translation.

THE PRESIDENT: Dr. Servatius, was it not the proper course to cross-examine Dr. Jäger when his affidavit was read?

DR. SERVATIUS: I assumed that it was accurate, as at that time I was not acquainted with conditions in the district in question. I have since made inquiries and can bring evidence to show that his statements were not only very much exaggerated, but in many cases actually false. The truth emerged by degrees on studying in detail some half dozen sworn statements which I obtained. Krupp had 60 camps. The witness deals with three or four of them at a time when the aerial war was at its peak—a fact which he does not mention. I do not anticipate much difficulty in proving his statements incorrect. I should like to reserve the right to submit further affidavits with which the witness can be confronted if he appears here in person, I also made an application, which has not yet been granted, for leave to make use of a number of medical reports made in these very factories, which in themselves prove that Dr. Jäger’s testimony is inaccurate. My chief difficulty was to obtain possession of this evidence, hence the delay. Otherwise I should have submitted it sooner. I attach great importance to Dr. Jäger as a witness.

The next witnesses, Dr. Voss and Dr. Scharmann, will testify on the same subject, but each in connection with a different area. They have attended the camps as doctors and can testify that the conditions there were irreproachable and good. I could name many such doctors if I had the time and opportunity to look them up. I know both of these and they will confirm what conditions were really like.

THE PRESIDENT: If that is so, why can they not both give an affidavit about it?

DR. SERVATIUS: They are in a camp. It is difficult for me to contact them; it would be easier to bring the witnesses here. Perhaps Dr. Voss can appear here so that one of the witnesses can be heard.

The next three witnesses are named for this purpose.

SIR DAVID MAXWELL-FYFE: My Lord, since I gave the explanation, I have had a chance of comparing the English text with the French text, and it would appear that an error has crept into the English text, which says:

“He seemed to be impressed and he gave an explanation of the
gravity of the communication Shiedlauski had given. Shiedlauski
had given an order that no prisoner should remain in
Buchenwald.”

The French text is, if I may translate it:

“He seemed very embarrassed and an explanation was given. The
Governor of Thuringia, Sauckel, had given the order that none of
the detained persons should remain at Buchenwald.”

So that apparently when I told the Tribunal that we could not find this reference, I was dealing with the English text, and it appears that there was such a reference in the French text. Since M. Dubost was calling the witness, the probability is that the French text is right, and as there is evidence that Sauckel had given this order, I think it is only fair that I should say that one witness should be permitted to deal with this point in the view of the Prosecution; it is, of course, a matter for the Tribunal.

DR. SERVATIUS: I agree with the Prosecutor and need only one of the three witnesses. Should none of the witnesses be found, I have in the document book an affidavit of one of Sauckel’s sons who was also present at the conference.

Witness 34, Skorzeny, will testify to the general connection between the Gauleitung and the concentration camps; in other words, to what extent the Gauleitung, by virtue of its official position, had knowledge of what went on in the concentration camps.

Witness 35, Reich Treasurer of the NSDAP, Schwarz. This question has been settled. I have received my interrogatory with the answers.

Witness 36, Frau Sauckel, was previously approved by the Tribunal. I can see that certain objections might be raised but the essential point is this: Among other things, the witness repeatedly heard that the Defendant Sauckel was criticized for treating foreign workers too well and for manifesting an international rather than a nationalistic attitude. That is one point. The other point is that which concerns the conspiracy, namely, that Sauckel kept aloof and had very little intercourse with other members of the Party. He worked consequently on his own and knew very little about major developments in policy.

That concludes my remarks on the list of witnesses.

THE PRESIDENT: Dr. Servatius, you probably realize that you have asked for a very much larger number of witnesses than other counsel and I have, therefore, to ask you whom you regard as the most important witnesses. It may be that it will be necessary to limit the number, as you are aware that we are directed to hold an expeditious trial, and so would you kindly give me the list of those witnesses whom you regard as the most essential.

DR. SERVATIUS: If I have time till tomorrow to think it over, I shall try to reduce the number. It is difficult because the field is so large. Also I did not receive a trial brief for Sauckel defining charges in detail, so that I must be prepared for all eventualities. I must define my position with regard to many points: food, wages, leave, workers, transport, illness and there are many aspects to which I must refer.

THE PRESIDENT: You will not forget that many of the defendants are concerned in various aspects and they have neither asked for nor been allowed this very large number of witnesses.

DR. SERVATIUS: May I turn to the documents now?

THE PRESIDENT: Well, I rather thought that perhaps Sir David was going to get in touch with you after the adjournment and perhaps you could then deal with the documents more successfully.

SIR DAVID MAXWELL-FYFE: I think that would be time usefully spent, My Lord, if the Tribunal would allow it.

THE PRESIDENT: Yes.

I call on Dr. Exner on behalf of the Defendant Jodl.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, Dr. Exner and Professor Jahrreiss were good enough to approach the Prosecution on this matter and put forward certain considerations, including the names of the witnesses to whom they attached the greatest importance, and over a considerable part of the field there is no difference between us. On certain matters there is a difference of principle, which I shall point out to the Tribunal in a moment, but the effect is, if I might run through the application, that the Prosecution will not offer any objections to General Winter, who speaks as to the organization of the OKW and the respective duties of the Defendants Keitel and Jodl. They will not offer objections to Major Professor Schramm, although the need for his evidence is perhaps not so obvious. On the other hand, with regard to Number 3, the evidence of Major Kipp, that the fettering or chaining of prisoners took place at Dieppe and as to the cause of the shooting-of-Commandos order, the Prosecution submit that these matters are irrelevant. With regard to Major Büchs, Dr. Exner tells me that he will be satisfied with interrogatories. The Prosecution do not object.

With regard to Number 5, General Von Buttlar, Professor Exner suggests that he should be a witness, and the Prosecution do not object.

With regard to Number 6, the Prosecution are content that there should be interrogatories.

With regard to Vice Admiral Bürckner, the Prosecution are prepared to take no objection.

Then with regard to Number 8, General Buhle, a questionnaire has been sent off.

With regard to Number 9, it is suggested that there should be interrogatories.

Number 10, interrogatories.

With reference to Numbers 11 to 21, the Tribunal has allowed an interrogation in each case, and in many cases a questionnaire has been sent off, and therefore the Prosecution could not object at this stage when action has been taken on the Tribunal’s suggestion. That would mean that the Defendant Jodl would have four oral witnesses, apart from the interrogatories which have already been largely approved by the Tribunal. The objection of the Prosecution to Number 3 is maintained.

DR. EXNER: I should like, first of all, to mention Number 3, Kipp. The Prosecution have its objections to this witness. We need him to give information as to how the Hitler order of 18 October 1942, that is, the Hitler order regarding Commandos, originated. This order has been made the basis of a highly incriminating charge against Jodl and it is of great importance to hear how this order came to be given. It concerns the killing of Commandos dropped by planes or landed from boats. As I understand it, the objection to this witness and this subject generally is that it appears to concern for the most part the events of Dieppe, in consequence of which this order was admittedly issued. But we are not concerned with an exact portrayal of what actually happened at Dieppe. The witness Kipp is, in any case, unable to do so, since he was in the OKW and was not a witness of those events. We are concerned with something else, namely, the fact that certain reports were presented to the OKW which caused this order to be made. We are furthermore concerned with the following facts to which Kipp is in a position to testify.

When these reports about the events at Dieppe arrived, the Führer was enraged and ordered strict measures to be taken against these Commandos. Jodl refused to issue or draft the order as demanded by the Führer. When pressed, he said he did not know what reason he could give for that order.

Jodl then passed the matter to Major Kipp for investigation, as it was peculiarly complicated from a legal point of view and Kipp, being a professor of law, should know something about legal matters.

In addition, a kind of poll was held in Jodl’s office in the Wehrmacht Operations Staff and the opinions of other offices on the matter in question were collected. Varying opinions were received from the Ausland Abwehr, the legal department, et cetera. As in the meantime 10 days had passed, Hitler lost patience, sat down and drew up the entire order himself, as well as a further decree, establishing the reasons for the order. Jodl, therefore, was not the author of this order. All that he did was to express his doubts regarding it. The story of the origin of the order of 28 October 1942, which, as I have said, has been made the basis of a grave accusation against Jodl, is of the utmost importance. Kipp will testify to it. Further, it has already been said that there is no objection to witness Number 5, Buttlar.

As to Number 4, I am satisfied with an affidavit or an interrogatory, but I must reserve the right to call him as a witness, should the interrogatory be inadequate or not clear. I hope, however, that this can be avoided.

Regarding witness Number 7, Vice Admiral Gottlieb Bürckner, I should like to point out that he is the same Admiral Bürckner who was the subject of discussion this morning in connection with the witnesses for the Defendant Raeder. Perhaps that will clear up the difficulty about Raeder.

Regarding Number 8, the interrogatory has already been sent out. We have, however, distinctly, reserved the right to resort to oral testimony should the interrogatory again prove unsatisfactory. Otherwise, I have nothing further to say on the subject and the Prosecution has no grounds for protest.

I have just received a note saying I was relying on the appearance of Büchs as a witness and therefore why did I not ask for him. This is on behalf of Göring, is it not? I shall have to leave the decision to the Tribunal. I had in fact intended to call Büchs as a witness and I only agreed to forego his personal appearance in the course of the discussion.

THE PRESIDENT: Which witness were you talking about?

DR. EXNER: Witness Number 4.

THE PRESIDENT: Do you say you are asking for him as an oral witness?

DR. EXNER: Göring has also asked for him as a witness.

THE PRESIDENT: Has he been allowed to the Defendant Göring?

DR. EXNER: He had counted on my calling him as a witness, on his being allowed and on being able to question him. He is here in Nuremberg. May I now turn to the documents?

THE PRESIDENT: Yes.

DR. EXNER: Regarding Points 1 and 4, the Prosecution has no objections. I take this to mean that I put into my document book an extract of the part I read. I submit the entire document to the Tribunal without a translation of anything except the part which I am going to read; and which deals with an important point which must be clarified. If I am dealing with a large document and I need to quote only one paragraph, it is sufficient if I submit the original document to the Tribunal in its entirety and include in my document book only the particular paragraph in question and its translation.

THE PRESIDENT: That is right.

DR. EXNER: Regarding Points 5 and 6, the Prosecution objects and I withdraw these two documents.

Point 7 is a curious one. That is Document Number 532-PS, submitted by the Prosecution and to which I made objection at the time. The document was removed from the record, and now I myself apply for this document to be submitted again. This is for the following reason: The document is an order that was submitted to Jodl in draft form. Jodl did not approve it, crossed it out, and sent it back without signing it. This draft was submitted by the Prosecution, and I objected to its being presented as if it were actually an order signed by Jodl. I want to submit it now in order to prove that Jodl, by making it impossible for this order to be carried out, deprived an illegal order of its effectiveness.

Regarding Points 8 to 15, the Prosecution also has no objection.

SIR DAVID MAXWELL-FYFE: Points 16 and 17 are the subjects of objection from the Prosecution. Point 16 relates to the English “Close Combat Regulations” of the year 1942, and 17 is the English order for the Operation Dieppe of the same year. With regard to the “Close Combat Regulations,” the only relevance they could seem to have would be in relation to an objection to this form of training, and in the submission of the Prosecution it would be irrelevant on the question of the Commando order.

With regard to the question of shackling, I think the simplest way of dealing with it is to point out that the Prosecution, as my friend Mr. Dodd pointed out, have not introduced that matter into their case, and therefore it would appear that, the English order in question was not relevant. Apart from the two general objections, neither of these matters seems connected with points in the case.

I might just indicate Number 20, which is another objection that is on the same basis as the old document, which I think the Tribunal has had before—the implication of the German Foreign Office on breaches of international law, and it is sought for, as the Tribunal will see, as evidence of the reports that were made to the High Command of the Wehrmacht, and that gave occasion to take reprisal measures.

Then a similar ground of objection applies to Number 21, a history of the White Russian partisan war, which is sought for as evidence that the danger of bandit warfare gave cause for undertaking sweeping countermeasures.

These objections can be all grouped together. They fall under the general objection to _tu quoque_ evidence which the Prosecution has maintained throughout the Trial.

DR. EXNER: May I say something about this? As far as 16 and 17 are concerned, we just want to see these documents. We want to see them first in order to judge whether or not we want to submit them in evidence. I have stated so at the foot of the page.

As to irrelevance, we do not say that we regard these orders as illegal. But if for instance, in the “Close Combat Regulations,” English soldiers are ordered to perform actions for which our soldiers are censured, it would constitute a discrepancy of some importance. For in that case it would be obvious that the British Government regarded such methods of warfare as legitimate. If, however, such methods are legitimate for them, they must also be legitimate in our case, since it is impossible to have two standards in these matters. In order to establish this, we wanted to see these “Close Combat Regulations.” That is Number 18.

Number 19 is a similar case, but I can more readily understand that that was refused, as it may be a secret order. Number 20, the White Book. . .

THE PRESIDENT: Sir David did not deal with 19, did he? He only dealt with 16, 17, 20, and 21.

DR. EXNER: Yes. 18 and 19 have not been objected to.

THE PRESIDENT: As I understood it, his objection to 16 and 17 was that there was no complaint against the German forces, either with the reference to close combat or with reference to shackling, in the Indictment.

DR. EXNER: If these “Close Combat Regulations” should happen to include illustrations—there are actually pictures in there—of the shackling of prisoners and orders for doing so, one would be obliged to say that the British Government does not consider this kind of treatment illegal and that if it happens on our side we cannot be censured for it. It is difficult for me to estimate their importance to us, because I have not had these “Close Combat Regulations” in my own hands. If I had them, I could make my application. I should like to know whether I have to include them in my evidence or whether there is no need.

No objection has been raised to 18 and 19. As to 20, these are the White Books already approved for Göring. Consequently, I need not ask for them myself.

Regarding Point 21, I am convinced that this cannot be settled with a charge of _tu quoque_. It is a Russian book, describing partisan warfare. The author of this book is a Russian who, himself, participated in partisan warfare for several years as chief of staff and he writes from personal experience.

We do not assert that the Russians did the same as we did, which would be a _tu quoque_ argument; I should like to have this book for another reason. To understand and appreciate our regulations regarding partisans, one must know these partisans. One must have knowledge and experience of their methods, and be able to appreciate the danger which they represented. This Russian book describes all that, and is therefore important. The author himself, as stated, played an active part in the warfare carried on against the partisans.

In the Indictment it is stated, “The war against the partisans was simply an excuse for the annihilation of Jews, Slavs, and so on.” This book shows that the war against the partisans was a real war and not an excuse on our part.

If the book is unobtainable, I ask permission to read the short account of the contents recently published in The Stars and Stripes. To conclude, it should be emphasized that the book was written by a Soviet Russian and for this reason cannot be assumed to have an anti-Russian bias.

Therewith I have concluded my presentation.

THE PRESIDENT: Sir David, the Tribunal would like to know what your argument is with reference to 21.

SIR DAVID MAXWELL-FYFE: I was opposing it for the reason that was given. The book is asked for as evidence that the danger of bandit warfare gave rise to undertaking sweeping countermeasures.

Now, broadly, the case for the Prosecution is that the countermeasures against partisans constituted atrocities, and evidence of that kind has been given. It is, in my submission, no defense to the committing of atrocities against partisans, of the kind given in evidence, that their warfare was of a great extent or very fiercely or bravely waged. This is just the _tu quoque_ argument in its nakedness—because partisans fight you, therefore you can burn their villages, shoot their women, and kill their children. That is the argument which we say is irrelevant and is inadmissible.

My Lord, I should like to say that I have no objection, if any of these documents can be obtained, to Dr. Exner’s looking at the documents; on that point to which the Prosecution attached importance, I thought it right—and I know my colleagues desired it—that I should make our position clear.

THE PRESIDENT: That concludes your address, Dr. Exner, does it?

DR. EXNER: May I add something concerning the last point. I am, of course, perfectly aware that those atrocities, as described here, cannot be justified by the activities of the partisans, but the more violent the actions of the partisans became, the harsher—of necessity—were the German military countermeasures, so that there is, after all, a connection between these matters.

THE PRESIDENT: The Tribunal will consider your argument.

The Tribunal will now adjourn.

[_The Tribunal adjourned until 7 March 1946 at 1000 hours._]

SEVENTY-SIXTH DAY
Thursday, 7 March 1946

_Morning Session_

THE PRESIDENT: I call on counsel for the Defendant Von Papen.

SIR DAVID MAXWELL-FYFE: If the Tribunal approves, I shall indicate the views of the Prosecution on the witnesses requested by Dr. Kubuschok.

THE PRESIDENT: Very well.

SIR DAVID MAXWELL-FYFE: The first witness is Von Lersner and there is no objection. This witness is called to cover, among other things, the period of the coming into power of the Hitler Government, which is a time of material importance in the case against Von Papen.

If the Tribunal would consider the next three witnesses, there is a minor point: The witness Tschirschky was, as I understand it, Von Papen’s private secretary from 1933 to February 1935. That is, he covered the period of the rise to power of the Nazi Party. And he also covers some of the Austrian period.

The next witness, Von Kageneck, is also a private secretary. He does not cover the period of the rise to power, but covers the whole Austrian period.

The next witness, Erbach, was counsellor at the Embassy in Vienna, that is, he covers the period 1934 to 1938.

The Prosecution has always been reluctant to oppose the calling of secretaries who could assist the memory of the defendant, but it did seem to us that the witness Tschirschky was cumulative both on the period of the rise to power and the Austrian period and that it would be sufficient to have interrogatories in that case. Therefore, the Prosecution, apart from that, would not object to Von Kageneck and Erbach.

THE PRESIDENT: That is, you suggest interrogatories for 2 and calling 3 and 4?

SIR DAVID MAXWELL-FYFE: Yes, My Lord, interrogatories, and calling of 3 and 4.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: And with regard to Number 5, the witness Kroll, the Prosecution submits that he is irrelevant. He is called for the period when the defendant was an ambassador in Turkey and he allegedly is able to say that Von Papen had no aggressive thoughts with regard to Russia. The Prosecution would submit that Von Papen is really the person who can speak on a matter like that, and the Prosecution has had no evidence as to any subversive activity of the Nazi Party in Turkey; which is the other point that this witness is said to speak on.

Then the next five witnesses, 6, 7, 8, 9, and 10: The Tribunal granted interrogatories and, so long as the matter is limited to interrogatories, the Prosecution will make no objection.

And Number 11, the Baroness De Nothomb: The Prosecution object to evidence on acts of intercession on behalf of members of the resistance movement, and individual acts of that kind, in the opinion of the Prosecution, are not really relevant to the matters before the Court.

With regard to Archbishop Gröber, if the Tribunal would not mind looking at Number 12 in the application, in the opinion of the Prosecution the matters raised by the questions are not relevant. The first is, “Were the Concordat negotiations between Germany and the Holy See brought about by Defendant Von Papen’s own initiative?” The second part of this question is, in short, “Did Von Papen make efforts with Hitler regarding the conclusion of the Concordat?” Well, the Concordat was made, and what the Tribunal are really concerned with is the breaches of the Concordat, of which the Prosecution has given written evidence.

The second question—I am afraid that I do not understand that, and in its present form I submit that it is irrelevant, in addition to being vague—“Were the activities of the defendant directed by his positive religious attitude after the conclusion of the Concordat also?”

Then the third question: “Was the conclusion of the Concordat welcomed by the German Episcopate?” I don’t think that really helps.

And fourth: “Did the Concordat give legal backing to the Church during the latter’s religious struggles?” And, “Could the Church, in the end, fall back on the Concordat?”

The Concordat is there and speaks for itself, and, as I say, the issue in this case is the breaches of the Concordat, not its contents. So we object to Number 12.

Number 13, the witness Von Beaulieu—that is very short, if the Tribunal would be good enough to look at it:

“I shall submit an affidavit of the witness, which deals with
the intervention of the defendant as President of the Union Club
on behalf of Jews.”

The Prosecution submit that the intervention in a racing club on behalf of some Jewish members is not really a relevant matter, even on the Jewish issue.

Number 14, the witness Josten—Dr. Kubuschok asks for the use of a statement which has been sent to the Tribunal. The Prosecution would prefer that to be in the form of an affidavit or interrogatory, if this is possible.

THE PRESIDENT: That is 14, is it?

SIR DAVID MAXWELL-FYFE: 14, My Lord, yes.

Then 15 is His Majesty, the King of Sweden. That is a new application and general in its scope. It is difficult to judge how much King Gustav could contribute, and, therefore, the Prosecution do not object to interrogatories.

THE PRESIDENT: Sir David, in 14 Dr. Kubuschok says that he requested that the statement made by the witness to the legal department of the Military Government headquarters, Düsseldorf, be furnished him. Are you objecting to that being furnished him?

SIR DAVID MAXWELL-FYFE: No, I thought that he had got it.

DR. KUBUSCHOK: I got it this morning.

SIR DAVID MAXWELL-FYFE: Dr. Kubuschok says that he received it today, this morning.

THE PRESIDENT: Are you objecting to his offering it as evidence?

SIR DAVID MAXWELL-FYFE: No, I only say that we should prefer it in the form of an affidavit or interrogatory, if that can be done. I do not make any great objection.

DR. KUBUSCHOK: In regard to the witnesses I should like to say the following: Witness Number 1, Baron Lersner—the Tribunal granted only an interrogatory at first. The prosecutor has today agreed to have the witness called before this Tribunal. I also ask very urgently that this witness be questioned before the Tribunal.

The witness was the president of the German peace delegation at Versailles. He is a very well known German diplomat, who since 1932 has worked very closely with the Defendant Von Papen. A man like Lersner had, of course, a particularly fine understanding for every policy of aggression. Therefore, it is very important that this co-worker of the Defendant Von Papen be heard and be allowed to tell us how he has observed the defendant in his activities up to 1944. It is particularly important that Lersner, at the instigation of Defendant Von Papen, could go to Turkey.

THE PRESIDENT: Dr. Kubuschok, Sir David agreed, I think, with reference to Number 1.

DR. KUBUSCHOK: Yes, if the Tribunal also agrees, then the matter is taken care of.

The second witness, Tschirschky—Tschirschky was the private secretary of the defendant from 1933 to 1935, the first private secretary during the time that the defendant was Vice Chancellor. He is a man who was himself persecuted by the Gestapo and had to go into exile in 1935, where he still is. He is a man who can give exhaustive information on the whole period from 1933 to 1935 in regard to the external activity of the defendant and his personal attitude.

I believe that, especially for the time from the beginning of 1933, we shall not get a thorough picture if we do not hear this closest co-worker of the defendant personally. The other witnesses concern mostly different periods. Only in some cases do they overlap with the activity of this witness.

Number 5, Kroll. . .

THE PRESIDENT: Supposing that the Tribunal thought it right to grant you Number 2 as an oral witness, would it not be possible to dispense with one of 3 or 4 and have interrogatories from one of them and call the other one? They deal with somewhat the same period.

DR. KUBUSCHOK: We definitely need 3 for the following reasons:

Witness Kageneck was present when Hitler entrusted Papen with the Austrian mission. This is a very important point, since the Prosecution alleges that he was entrusted with this mission for those purposes of which he was accused. The witness will testify that Papen accepted the mission only after a clear guarantee concerning the purpose of the mission. Furthermore, Count Kageneck was also in Vienna after 1935, that is to say, from 1935 until the Anschluss, and for this period we should not have any other witness. Kageneck can also confirm a very important point, that is, that he was entrusted with taking diplomatic documents to Switzerland and safeguarding them there, since from these documents the documentary proof for the activity of the defendant in Vienna could be deduced. Therefore, in my opinion, the witness Kageneck also cannot be dispensed with.

If we can dispense with any witness, it would be witness Number 4, Erbach, in regard to whom I might then ask for permission to use an interrogatory, because here, too, questions are to be asked which the other witnesses cannot answer.

Witness Number 5, Minister Kroll—Papen is accused of a conspiracy for aggressive war. The Indictment is not limited in respect to time. For the largest part of the time in question, namely 1938 to 1944, Papen was in a position which would have been particularly designed for an activity directed at undermining the peace. Turkey was for a long time an important pillar in military and, therefore, political considerations. It is, therefore, of the greatest interest whether Papen used his position for any activity in the nature of such a conspiracy.

Moreover, I should like to bring proof of the opposite. The fact was that his activity was directed at preserving the peace and that he was, in particular, against any extension of the war by means of military measures against Russia, and was against every political measure for the destruction of the relations between Turkey and the Allied Powers.

The witness was, during the Turkish period, the closest co-worker of the defendant. He is, therefore, in a position to give us information about the entire period.

Baroness De Nothomb—I have asked in this case to be permitted to present an affidavit or interrogatory. I want. . .

THE PRESIDENT: Which number are you dealing with?

DR. KUBUSCHOK: Number 11.

THE PRESIDENT: You are not dealing with 6 to 10?

DR. KUBUSCHOK: No, we are in agreement about 6 to 10.

THE PRESIDENT: Very well, 11.

DR. KUBUSCHOK: Number 11, Baroness De Nothomb—in this case I asked for an interrogatory or for permission to submit an affidavit. The subject of the evidence is:

During the years 1940 to 1944 the defendant continuously supported the witness in her intervention on behalf of persecuted members of the French resistance movement. I want thereby to prove that the Defendant Von Papen shows again, in this case, that he was greatly interested in a peaceful shaping of German-French relations, and that during the war he always had in mind the postwar time, when the poison should be removed from these relations. The intervention on the part of the defendant was also a result of general humanitarian considerations. This is not without considerable importance in connection with the charge of conspiratorial activity.

Number 12, Archbishop Gröber—the Indictment asserts that the Defendant Von Papen used his position as a prominent German Catholic for a dirty business of deception, and that the conclusion of the Concordat, as such, was effected in the course of a policy directed against the Church; that the conclusion of the Concordat was not intended seriously, as one could see from the later violations of the Concordat. Archbishop Gröber was, at the time of negotiations concerning the Concordat, at the Holy See. He was present during all the negotiations. He knows that the initiative for starting negotiations came from Von Papen himself, who did not get Hitler’s approval until later. He knows that the draft which had been made by Von Papen for the Concordat was strongly disapproved by Hitler and that Papen was able to advance this draft only after long struggles. The witness knows the Defendant Von Papen very well. He also knows from what inner stand toward the Catholic question the defendant approached the matter of the conclusion of the Concordat. As an influential dignitary of the Church he can also judge the consequences of the Concordat. He is in a position to judge that the contents of the Concordat at a later time also were still a protection for Church interests; and from his knowledge of the personal relations of the defendant and all the relations of the Church in Germany, he can testify as to whether the defendant had anything at all to do with the violations of the Concordat.

THE PRESIDENT: Dr. Kubuschok, does witness Number 2 deal with the same subject? Where you say in your discussion of the subject of the evidence, that witness Number 2 accompanied the defendant to Rome to conclude the Concordat—can he testify that against Hitler’s strong opposition he succeeded, at the last minute, in concluding the Concordat? At that time was the witness present at all the speeches?

DR. KUBUSCHOK: The witness Tschirschky was introduced into the negotiations concerning the Concordat by the defendant. It is very important, in my opinion, to examine also a witness who was present at the negotiations as representing the other side. In particular, this witness, Archbishop Gröber, could also express an opinion in regard to the later period, the violations of the Concordat. He can judge the entire situation from the point of the Church better than can the private secretary Tschirschky. He can also give an essentially more reliable picture of Von Papen’s personality, which in this matter is very closely connected with his political activity. I have been very modest in my requests; but I should like to ask urgently, in this case, that an interrogatory or an affidavit by Archbishop Gröber be granted, for it is indeed clear that the accusation that a prominent German Catholic uses his position for evil purposes of deception is a very serious one, and the defendant also is very greatly interested in having this question clarified, within the framework of the Indictment and also beyond that.

Witness Number 13—an affidavit of Herr Von Beaulieu, who shall testify that the defendant, in his position as president of a very large and prominent German organization, intervened until the very end for the non-Aryan members, as this term was used at that time. Everything which is of importance in judging the Papen case lies, for the most part, in the sphere of the subjective. We will see very few actual actions in the Papen case. The accusations are, for the most part, based on the fact that he was present. It is, therefore, relatively difficult to bring proof and therefore the counterevidence must to a large extent be subjective in nature. To judge a person’s character in its entirety, it is not unimportant to know what, for instance, his attitude was in 1938 toward the question of the treatment of Jews, for, if Papen here definitely deviated from a general line followed by Hitler and the Nazis, one will certainly be able to draw a conclusion as to whether he was really the faithful follower of Hitler which the Indictment tries to picture him.

Witness Number 14—I received the statement today. I have not yet had time to look through it. I shall submit either the statement or an affidavit which I shall try to get.

Number 15—a questioning of His Majesty King Gustav of Sweden, to be conducted in every way possible. This is a very important question. It touches a major point of the Defense, namely, in how far it was possible for a person not entangled in the ideas of Nazism to collaborate to a certain extent. To what extent could he hope, by his personal activity, to change things or at least to modify them? If, on the basis of the evidence submitted, we prove that Von Papen not only exhausted his means to serve this end within Germany, but also, beyond this, used his foreign political connections for this purpose, then this should, I believe, round out the picture of the character of the defendant in an important way. This strong activity in the interest of peace is such that, in my opinion, simply on the basis of such activities, the absolute falsehood and untenability of that charge of the Indictment that the defendant at any time could have approved of the aims of an aggressive policy within the framework of a conspiracy becomes apparent.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, with regard to the documents, Numbers 1 to 8, the Prosecution asks Dr. Kubuschok to submit the extracts, and then we can consider the relevancy at that time. I think that Dr. Kubuschok has Number 9.

DR. KUBUSCHOK: I have in my possession only the photostat which I received from the Prosecution.

SIR DAVID MAXWELL-FYFE: I am sorry. I should have said he had a photostatic copy, but the Prosecution have certified the photostat. The original is not obtainable at present. If it comes into our possession we shall let Dr. Kubuschok see it.

The third point is that Dr. Kubuschok says that he may have to make a supplementary application after Herr Von Papen, Jr. returns. That is, of course, a matter for him and the Tribunal. The Prosecution make no objection.

THE PRESIDENT: With reference to 1 to 8, has Dr. Kubuschok got the books?

DR. KUBUSCHOK: Yes.

THE PRESIDENT: Very well. Then he will be prepared to specify what parts of them. . .

DR. KUBUSCHOK: Yes, Sir; yes, indeed. I should merely like to add one point to the list. Yesterday I received from the Prosecution a further report to Hitler by Von Papen at the time of his activity in Vienna—Number 9, also a report to Hitler. I have also received it in the form of a photostat. I shall also submit this report for purposes of evidence.

THE PRESIDENT: I call on counsel for the Defendant Seyss-Inquart.

SIR DAVID MAXWELL-FYFE: May we state our position?

May it please the Tribunal, with regard to this defendant, the position as to the first four witnesses is that they deal with the Austrian part of the case. On the 2d of December the Tribunal allowed this defendant a choice of four out of nine. He has chosen Glaise-Horstenau, who was a minister in the Austrian Government; Guido Schmidt, who was the Foreign Minister at the time of the Schuschnigg-Hitler-Ribbentrop interview; Skubl, who was the Police President and State Secretary for Security in Vienna; and Rainer, who is a well-known Nazi and who was afterwards Gauleiter of Carinthia.

The Prosecution have no objection to these witnesses.

Then we come to the Holland period, and the Prosecution have no objection to Wimmer and Schwebel, but they do object to Bolle’s being called as an oral witness. The position is that he was refused by the Tribunal on the 26th of January. After the refusal interrogatories were submitted, but these seem to be almost entirely covered by the interrogatories administered to the witness Von der Wense, who is the second under the heading of affidavits. I think out of the 20 questions suggested for Bolle, there are only two that are not covered by Von der Wense, which are Numbers 17 and 18, and two others which seem to deal with very obvious points. So that is the objection with regard to Bolle, and the Prosecution submit that he would really be cumulative and is unnecessary. They make no objection to Fischböck, who speaks on the Jews, financial administration, art treasures, and forced labor. They make no objection to Hirschfeld, who speaks about confiscations and destruction of factories and the food situation. So, on the oral witnesses, the only objection is regarding Bolle.

With regard to the affidavits there is no objection—or rather, they should be interrogatories. They were all granted by the Tribunal on the 26th of January, and under these circumstances the Prosecution make no objection to them.

THE PRESIDENT: Yes, Dr. Steinbauer.

DR. GUSTAV STEINBAUER (Counsel for Defendant Seyss-Inquart): Mr. President, Your Honors, my client, Dr. Seyss-Inquart, had at first asked for a large number of witnesses and then, at my advice, and according to the desire of the Tribunal, reduced this number considerably.

I ask that the witness, construction supervisor Bolle, be admitted before the Tribunal because in my opinion the objection made by the Prosecution, that this is a cumulative witness, is not quite correct. Bolle was, before the occupation, Director of the Port of Hamburg, and then during all the years of the occupation he was director of the transportation department in Holland.

In particular he can testify about the railroad and shipping strike in October 1944. This chapter of the history of the occupation is extraordinarily important, because this strike resulted in a blocking of traffic which led to an embargo. The Indictment asserts, moreover, that the causes of the later famine catastrophe in Holland, as we may call it, can in part be traced back to measures which the Defendant Seyss-Inquart took in October 1944. Quite understandably, the Armed Forces wanted to use the few means of transportation which were still functioning, for their own purposes. The very examination of the witness Bolle should prove, however, that Seyss-Inquart endeavored, insofar as possible, to mitigate the effects of the measures taken by the Wehrmacht in this matter. In an interrogatory this complex of questions could not be treated exhaustively.

I ask you, Gentlemen, to realize that we are dealing here with the examination of the administration of a kingdom of 9 million within a period of 5 years. If we read through the report submitted by the Dutch Delegation we see, in regard to the financial consequences, alone, that it is alleged that the damage, which had been brought about by the administration on the one hand and by the events of war on the other hand, in short, by the occupation of Holland by Germany, reaches a figure of 25,725,000,000 Dutch guilders, to which, considering the difference in prices between 1938 and now, we have to add a margin of 175 percent.

I wish to point out that we are dealing here with the examination of administrative, legal, financial, and economic measures over a period of 5 years. I therefore believe that the request of the defendant that this witness be admitted is quite justified.

Concerning the affidavits, I took the liberty of making two more applications which have not yet been granted. This is on the last page, a very short affidavit by Baron Lindhorst-Hormann. He was formerly Commissioner of the Province of Groningen and should in particular be examined in regard to one point, in regard to the treatment of the so-called hostages in the hostage camp, and also in regard to the fact that none of these hostages was shot.

In addition to getting this affidavit, I have also asked that some official announcements be obtained, announcements by the Higher Police and SS Leader Rauter regarding the executions in order to prove who had done these things, that is, that the point of view of the defendant is that these regrettable measures were taken by the police and not by the civil administration.

I also intend to submit two affidavits which are already in my possession. One of them is an affidavit by a German judge, Kammergerichtsrat Rudolf Fritsch. In Seyss-Inquart’s administration in Holland he was in charge of appeals. He can tell us how Seyss-Inquart handled this important chapter of jurisdiction.

Another affidavit which I have in my possession comes from a Dr. Walter Stricker. It is cited as Document Number 30. Dr. Walter Stricker was a lawyer in Vienna and emigrated in 1938 to Australia. He served in the Australian Army and, without my asking, he sent me an affidavit, notarized by an Australian notary public, in which he testifies about conditions in Vienna in the critical days of October and November 1938. I ask also that this affidavit be admitted. As to the documents, as I have already told Sir David, I shall submit an exact list.

THE PRESIDENT: One moment, before you deal with that. Sir David said that with reference to the affidavits, which are mentioned on Page 2, that these ought to be called interrogatories. I do not know whether you wish to ask particularly for affidavits, which are different from interrogatories.

DR. STEINBAUER: Yes, Sir.

THE PRESIDENT: You want affidavits?

DR. STEINBAUER: Interrogatories, Sir.

THE PRESIDENT: Would there be any objection to the affidavit from the lawyer in Australia being shown to the Prosecution, so that they may see whether they wish to put cross-interrogatories to that witness? Australia is too far away from here for him to be brought here for cross-examination.

DR. STEINBAUER: Certainly.

SIR DAVID MAXWELL-FYFE: I have just been handed that affidavit from the witness Stricker and also Number 6, on the Dutch questions, from Judge Fritsch; and if the same course could be taken with regard to that from Baron Lindhorst-Hormann, I shall be ready then to consider that, too.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: With regard to the rest of the documents in the usual course, I ask that the Defense make extracts and show them to us.

THE PRESIDENT: Yes.

SIR DAVID MAXWELL-FYFE: There is one point I call to the attention of the Tribunal. It may be helpful that Number 28, Document Number D-571, is already in as Exhibit Number USA-112. I do not know if the Defense really wants Number 3. I shall not deal with it now, but the Prosecution will submit that it is really unnecessary and irrelevant, but I think that is a matter that we can more conveniently discuss when it comes up.

THE PRESIDENT: Yes. Then with reference to Number 2, under the heading concerning the Dutch question, will it be satisfactory if that is in the form of an affidavit and is submitted to you, so that you can put cross-interrogatories if you want to?

SIR DAVID MAXWELL-FYFE: That would be very satisfactory.

THE PRESIDENT: Dr. Steinbauer, have you got the affidavit mentioned in Paragraph 2 of the last heading?

DR. STEINBAUER: No, Sir; I have not received it yet. But I have requested that the Tribunal question the witness.

THE PRESIDENT: Could the interrogatories be in a more convenient form?

DR. STEINBAUER: Yes, Sir.

THE PRESIDENT: Then we need not trouble you further about the documents.

DR. STEINBAUER: I have only the request that, if possible, two books, which are not in my possession, be obtained: Document Number 8, Guido Zernatto, _The Truth about Austria_, and Number 9, the book _A Pact with Hitler—The Austria Drama_ by Martin Fuchs. I was told by Austrian people that both these books contain worthwhile information on clarifying the events in 1937 and 1938. Both books were, of course, prohibited in Austria during the Nazi regime and therefore I cannot get them.

The second book is also on the list presented by the French Prosecution, and from this I have learned that the book appeared in the publishing firm of Plon in Paris. Perhaps it is possible, with the assistance of the Prosecution, to get these books in time. All other documents I have in my possession.

THE PRESIDENT: Did you say Number 2? You said 8 and 9, but did you also say Number 2?

DR. STEINBAUER: Number 2, _Three Times Austria_, by Schuschnigg.

THE PRESIDENT: I thought you mentioned the third book. You said you have not got Numbers 8 and 9 and I thought you went on to mention a third one.

DR. STEINBAUER: No, Sir; only these two books.

THE PRESIDENT: Very well. Then, no doubt, the Prosecution will help you to get them.

SIR DAVID MAXWELL-FYFE: We will make inquiries, My Lord, and we will communicate with them.

THE PRESIDENT: Yes. I call on counsel for the Defendant Speer.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, the Defendant Speer has asked for 22 witnesses, who are all to answer in writing. There are no oral witnesses. And he asked for 41 documents. He has also asked that the Court appoint a panel of experts to interrogate a number of witnesses on what are termed “economic questions.” Now, I think it would be convenient if I summarize in four sentences the points of defense that appear on Page 26 and the following pages of the application, because if the Tribunal have these in mind it will make consideration of the witnesses easier.

There are four points. Number 1 is to show the responsibility of Speer. The Defendant Speer says that he was not responsible for the mobilization, allocation, or treatment of labor. The second point is to prove that his functions were merely technical and not political. The third point, to prove his actions to stop the importing of foreign labor and the treatment of concentration camp labor in the armament factories, which were his concern. The fourth point is his efforts, at the end of the war, to stop destruction in Germany and so to benefit the Allies and Germany after the war.

Now, of the witnesses, the following are from his own ministry, Numbers 1 to 6, 8, 10, and 12. The Prosecution submit that nine is rather a large number dealing with the position of the ministry. They are cumulative on many points and we should suggest that, if counsel would pick three, that that would cover that part of the case.

Now, the following witnesses, Numbers 15 to 21, are designed to show the attitude of the defendant at the end of war. There are a number of documents on this point, and again the Prosecution submit that that number of witnesses could be cut down to two or three.

Now, dealing with the remaining witnesses, Number 7, Field Marshal Milch, has already been allowed to Defendant Göring, so that point does not arise.

And Number 9, Dr. Malzacher, although not a member of the defendant’s ministry, was in charge of armaments in the southeast, and would appear to be cumulative as to the members of the ministry.

Number 11 is the liaison officer between the ministry and the OKW and also appears cumulative, unless counsel could indicate any special point that escaped the Prosecution.

Number 13 is really cumulative of Number 12, speaking on a point on which Frau Kempf can speak.

Number 14 is the defendant’s doctor, to speak on a period of illness. Again, unless there is some point that the Prosecution have not appreciated, they would have thought that the defendant and his secretary could speak on a period of illness.