"At his press conference on July 26, 1943 the Secretary of State was asked whether he anticipated any change in our policy of unconditional surrender in respect to Italy as a result of the conditions that had taken place. Mr. Hull said that he had no information to that effect from either the president or the War Department, who are dealing immediately with that matter. He added that he was not anticipating anything from them to the contrary."
I call your Honors' attention only to footnote 55:
"King Victor Emmanuel announced on July 25 the resignation of Prime Minister Mussolini and his cabinet. Field Marshal Pietro Badoglio was appointed Prime Minister, Head of the Government."
Next on the bottom of page 2, Document entitled No. 38:
"Allied Occupation of Italy: Statement by Secretary of State Hull, September 3, 1943.
"We are all observing the occupation of a portion of continental Europe."
Then the footnote 62: "General Eisenhower reported.....Nine months after the first landings in North Africa, the Allied Force had not merely cleared its shore of enemy forces, but had wrested from him the Sicilian bridge to use as our own in an advance onto the Italian mainland."
Then we come to No. 39: "Italian Military Armistice: Radio Announcement by General Eisenhower September 8, 1943.
"COUNTRIES IN A STATE OF ARMISTICE RELATIONS "Italy "An announcement which was issued by the Allied headquarters in North Africa at noon on September 8, 1943, and which was read over the radio by General Eisenhower beginning at noon on September 8, 1943, reads in part as follows:"
I think we need not read that but I call your Honors' attention to footnote 63a: "ALLIED HEADQUARTERS IN NORTH AFRICA. Sept. 8." I ask your Honors to make note of that date because I am sure it will come up in the future, September 8, 1943.
"A special communique: The unconditional surrender of the Italian armed forces was announced today by Gen. Dwight D. Eisenhower. The following statement from the Allied Commander in Chief was broadcast at 16:30 G.M.T. on the United Nations Radio:
"The Italian Government has surrendered its armed forces unconditionally. As Allied Commander in Chief I have granted a military arnustice, the terms of which have been approved by the Government of the United Kingdom, the United States and the Union of Soviet Socialist Republics.
"Thus I am acting in the interest of the United Nations. The Italian Government has bound itself to abide by these terms without reservation. The armistice was signed by my representative and representative of Marshal Badoglio, and it becomes effective this instant.
"Hostilities between the armed forces of the United Nations and those of Italy terminate at once.
"All Italians who now act to help eject the German aggressor from Italian soil will have the assistance and the support of the United Nations."
Document 40 consists of a series of documents relating to the Italian Armistice. We call your Honors' attention only to a few of the conditions of the Armistice which was presented on September 3, 1943.
"The following conditions of an Armistice arc presented by GENERAL DWIGHT D. EISENHOWER Commander-in-Chief of the Allied Forces, acting by authority of the Government of the United States and Great Britain and in the interest of the United Nations, and are accepted by MARSHAL PIETRO BADOGLIO Head of the Italian Government "1. Immediate cessation of all hostile activity by the Italian armed forces.
"2. Italy will use its best endeavors to deny, to the Germans, facilities that might be used against the United Nations.
"3. All prisoners or internees of the United Nations to be immediately turned over to the Allied Commander in Chief, and none of these may now or at any time be evacuated to Germany."
And I call your Honors' attention especially to paragraph 8, which is on page 5 of the English, termed No. 8 of the Armistice.
"8. Immediate withdrawal to Italy of Italian armed forces from all participation in the current war from whatever areas in which they may be now engaged.
"9. Guarantee by the Italian Government that if necessary it will employ all its available armed forces to insure prompt and exact compliance with all the provisions of this armistice."
On page 6, the signatures of Marshal Pietro Badoglio, Head of the Italian Government, and General Eisenhower, appear and then in Document, Subject 3: "ADDITIONAL CONDITIONS OF THE ARMISTICE WITH ITALY, September 29, 1943."
I call your Honors' attention only to sub-paragraph 1, which is on page 7:
"1. (A) Italian participation in the war in all Theaters will cease immediately. There will be no opposition to landings, movements or other operations of the Land, Sea and Air Forces of the United Nations. Accordingly, the Italian Supreme Command will order the immediate cessation of hostilities of any kind against the Forces of the United Nations and will direct the Italian Navy, Military and Air Force authorities in all Theaters to issue forthwith the appropriate instructions to those under their Command."
And, on page 13 of the English, sub-paragraph 25, the Armistice terms:
"Relations with countries at war with any of the United Nations, or occupied by any such country, will be broken off. Italian diplomatic consular and other officials and members of the Italian Land, Sea and Air Forces accredited to or serving on missions with any such country or in any other territory specified by the United Nations will be recalled. Diplomatic and consular officials of such countries will be dealt with as the United Nations may prescribe."
Then turning to page 20 of the Declaration of War by Italy against Germany, and the message of Marshall Badoglio to General Eisenhower, October 13, 1943:
EXCERPTS FROM BOOK: UNITED STATES AND ITALY 1936-1946. CONTINUED (page 69 of original) 43.
DECLARATION OF WAR BY ITALY AGAINST GERMANY (1) MESSAGE OF MARSHAL BADOGLIO TO GENERAL EISENHOWER, OCTOBER 13, 1943 I take great pleasure in informing you that His Majesty the King of Italy has declared war on Germany.
The declaration will be handed by our Ambassador in Madrid to the German Ambassador, at 3 o'clock p.m. (Greenwich time) on October thirteenth. By this act all ties with the dreadful past are broken and my Government will be proud to be able to march with you on to the inevitable victory. Will you be good enough, my dear General, to communicate the foregoing to the Anglo-American, Russian and the other United Nations Governments. I should also be grateful to you if you would be kind enough to inform the Italian Embassies in Ankara, in Buenos Aires and the Legations in Bern, Stockholm, Dublin and Lisbon.
(2) PROCLAMATION BY MARSHAL BADOGLIO TO THE ITALIAN TROOPS TO THE ITALIAN PEOPLE:
Italians, with the declaration made September 8th, 1943, the Government headed by me, in announcing that the Commander in Chief of the Anglo-American Forces in the Mediterranean had accepted the Armistice requested by us, ordered the Italian troops to remain with their arms at rest but prepared to repel any act of violence directed at them from whatever other source it might come. With a synchronized action, which clearly reversed an order previously given by some high authority, German troops compelled some of our units to disarm, while, in most cases, they proceeded to a decisive attack against our troops. But German arrogance and ferocity did not stop here. We had already seen some examples of their behavior in the abuses of power, robbery, and violence of all kinds perpetrated in Catania while they were still our allies. Even more savage incidents against our unarmed populations took place in Calabria, in the Puglie and in the area of Salerne. But where the ferocity of the enemy surpassed every limit of the human imagination was at Naples. The heroic population of that city, which for weeks suffered every form of torment, strongly cooperated with the Anglo-American troops in putting the hated Germans to flight. Italians! There will not be peace in Italy as long as a single German remains upon our soil. Shoulder to shoulder, we must march forward with our friends of the United States, of Great Gritain, of Russia, and of all the other United Nations. Wherever Italian troops may be, in the Balkans, Yugoslavia, Albania, and in Greece, they have witnessed similar acts of aggression and cruelty and they must fight against the Germans to the last man.
I think we need not read the remainder of the document, your Honors.
Now, if your Honors will turn to Document Book XXIV, for one final document from that book, NOKW 1664 which is on page 82 of the English, and page 53 of the German Document Book.
Your Honors will recall that ten documents were passed from Document Book XXIV because they had previously been introduced into evidence. The Prosecution is prepared now to offer seven of those because they checked and discovered the error of itself, and of the other three, one was pointed out by Dr. Laternser and was admitted in part and withheld in part, the other two, upon recheck were found to have been errors made by the defense counsel in protesting so we offered one yesterday and we offer the final one today. I make this statement only that our hard working research staff may be protected from any allegations of carelessness in the compilation.
PRESIDING JUDGE BURKE: The best proof of their evidence is to present that document in proper form and shape and let the Tribunal attempt to judge for itself.
MR. FENSTERMACHER: Page 82 of the English, page 53 of the German, a series of reports from the 65th Special Corps Command to the Armed Forces Commander Southeast. The first is War Diary of the Commanding General, Commander in Serbia, to Wehrmacht Commander Southeast, Daily Report, under Wehrmacht activity.
I think we can skip most of paragraph 1 and pick it up again on page 83 of the English, page 33 of the German:
"As reprisal for the soldier shot to death on 3 September in Belgrade on the open road 50 Communists executed."
The report is signed Commander in Serbia, Command Staff, Department Ia, 4 September 1941.
And on page 84 of the English, and page 54 of the German, daily report of the 8 September 1941 from the 65th Corps Command to the Wehrmacht Commander Southeast, who at that time was the defendant List and his Chief of Staff the defendant Foertsch; that section of the report dealing with activities of the 714th Infantry Division.
PRESIDING JUDGE BURKE: Will you kindly orient the Tribunal as to the page.
MR. FENSTERMACHER: I am reading now from page 84 of the English, your Honor, page 54 of the German.
PRESIDING JUDGE BURKE: Document Book XXIV?
MR. FENSTERMACHER: Document Book XXIV.
PRESIDING JUDGE BURKE: Designated Exhibit number?
MR. FENSTERMACHER:NOKW 1664.
PRESIDING JUDGE BURKE: 1664?
MR. FENSTERMACHER: Yes, your Honor.
JUDGE WENNERSTRUM: The page 84 I have is NOKW 1660.
MR. FENSTERMACHER: Perhaps we can get you another copy of your Honor, of NOKW 1664. Is it in your other copy?
PRESIDING JUDGE BURKE: It will be a matter of some convenience to the Tribunal to be able to refer to the appropriate page designated by Council and not some other page, upon personal investigation.
JUDGE WENNERSTRUM: Go ahead.
MR. FENSTERMACHER: This is daily report of 8 September 1941 for the 65th Corps Command of the Wehrmacht Corps Commander Southeast, 714th Infantry Division:
"One-half armored train 23 guards the repairing of the place of the explosive attempt on railway near Mala Krana.
"By order of the Commander in Serbia in the Benat in Mokrin, Melenci, Kumane 10 Communists hanged in each place by 721st Infantry Regiment as reprisal measure."
Next, the daily report from the Commander in Serbia, to the Wehrmacht Commander Southeast, bottom of page 84, of the English 54 of the German:
"Daily Report:
"Appeal of Prime Minister Nedic repeated on the radio since it evidently had good effect. Distribution by leaflets.
"Decree concerning civilian court martial available.
"Encircled works at Baric (East of Obrenovac) was liberated by Stuka attacks. 50 guilty communists executed as reprisal for attack on soldier at the station Belgrade-Topicer."
I think we need not read the rest of the report, signed on page 86 of the English, 55 of the German, Commander in Serbia, Command Staff Ia, 16 September 1941.
Next the report of the Commander Serbia dated Belgrade 29 September 1941, to Plenipotentiary Commanding General in Belgrade, at bottom of page 86 of the English, page 56 of the German, Daily Report:
which is offered as Prosecution Exhibit 556. These are a series of extracts from the war diary of the 22nd Infantry Division. The entry in the war diary for 8 October 1943. Your Honors will recall that the 22nd Infantry Division was active on Crete at this time and was directly subordinate to the Commander in Chief Southeast simultaneously Commander of Army Group F, defendant Weichs.
The Schubert Detachment was able to arrest 50 suspicious men who were not resident in the locality in the upper Rethimnon sector during the pursuit bands in the locality of Kalikrates. The following was secured in weapons: 7 rifles, 1 hunting rifle, 7 pistols, among them 1 Italian army pistol. The 50 men, bandit suspects, were shot by the Schubert Special Detachment.
Next on page 2 of the English, page 2 of the German, Document NOKW 812, which is offered as Prosecution Exhibit 557. This is an extract from the War Diary XXI Army Corps. Your Honors will note the XXI Mountain Corps was from 5 September, and those words crossed out and 25 August inserted instead in the blame under the command of the 2nd Panzer Army. The 2nd Panzer Army at this time was commanded by the defendant Rendulic. Headquarters, 12 March 1944. Down at the bottom of the English page 2 and German page 2, handwritten in pencil, Enclosures 57;
"225 Serbian Concentration camp prisoners are being brought by truck via Skutari - Urvsevac to Mitrovica to work in the Trapca mines."
Next on page 4 of the English, page 3 of the German, Document NOKW 1790, which is offered as Prosecution Exhibit 558. These are various reports from and to the XV Mountain Corps. The first one, Ic Activity Report for October 1943:
Court5 , Case 7 Enclosure to 114th Jaeger Division Section, Ic No.1339/43 secret, dated 15 October 1943.
The mission is:
To advance from the Slavica plant into the area South of the road Mandio-Drnis, to discover the bandits living here and to ascertain their intentions.
On 10 October 1943, 2100, the squad left the plant by truck and was brought to a point on the road to Dranis, about 500 m East of Mandic. The squad set up camp in the area Knesic (see map). The inhabitants of Knesic were very careful in their statements. No information could be obtained from them. However, it was clearly established that inhabitants of this village went in and out with weapons. Furthermore, it was established without a count that inhabitants participated in the attack on the Slavica plant during the morning of 11 October 1943, for several of them returned individually with arms. Unfortunately, it was not possible to apprehend these bandits since because of the deficiency of cover in the terrain and many stone walls if was impossible to effect a speedy approach.
During the morning of the 11 October 1943 the camp site was moved East of Pekas (see map.). During this 3 civilians whom the squad met on the way wer eliminated. When my scouts appeared the male inhabitants of the small village of Pekas stated that they were ready at any time to fight with us (bandits) so that Jugoslavia would be free again, that one should kill the "German pigs" whenever they were met, what do the Germans really want in our country. These men were eliminated.
Through personal observation and through scouts it was ascertained that patrol activity exists between Knesic across height 274 (1½ km South of Konjevrate) and that there are local bandits in this sector.
Furthermore bandit positions and sentries we re confirmed on the heights 270 (Glavica) and 384.
On the basis of these findings the local partisans from the village of Knesic were asked to build road blocks in the evening of 12 October 1943 and to bring their arms along. They enthusiastically responded to this request but without weapons. Hereupon they were shot at a distance from the village. In spite of searches no weapons were seized because the hiding places are very well made (probably underneath stones, etc.) A total of 19 (nineteen) bandits from the village were shot.
I abstained from advancing in to the villages of Goris - Labori as well as Brnjica of Sv. Ivan (Konjevrate).
The squad returned at 2000 hrs on 12 December 1943 to the strongpoint at Slavica.
Next on page 6 of the English, page 5 of the German, the report To 2nd Panzer Army Ic/Counter Intelligence, dated 14 October 1943:
Daily Report 14 October:
114th Jaeger Division Strong bands around Gospic.
Croatian units yielded Bilaj (Southeast of Gospic) on account of enemy Artillery fire (crosses out: on account of enemy pressure). According to prisoners' statements, on 10 October a band 2000 strong (presumably North Dalmatian Division) crosses over by ship from Razanac to Stari Grad (20 km and 28 km Northeast of Zara). Strong band with truck 22 km Northwest of Drnis. During mopping Southeast of Sibenik 30 enemy dead.
Then under that section of the report, 15th Army Corps, 2nd Panzer Army which deals with 373rd Infantry Division:
122 counted and 360 estimated enemy dead, 3 prisoners, 42 arrests Reprisal measures: 7 hostages arrested, 2 villages burned down.
Next is the Daily report from the XVth Mountain Corps, to the 2nd Panzer Army for 16 October 1943, on page 8 of the English, page 6 of the German, that section of the report which reads as follows:
369th Infantry Division and IInd Croatian Corps:
Enemy was unable to prevent us from bringing strong forces to Travnik (in course of this a band 500 men strong was repelled Northwest of Vitez partly in close combat), but attacked Travnik in spite of this during the night with Artillery and Panzer support.
20 arrestees were hanged for attempting to blow up the railway (near Metkovic).
Signed: XVth Mountain Corps, Page 9 of the English, and page 8 of the German, Document NOKW 1747, which is offered as Prosecution Exhibit 559.
This is an order from the Commander in Chief of the 2nd Panzer Army to the Commanding General of the XV Mountain Corps.
"I agree with the measures taken. In case of capture the three escaped officers are to be shot dead."
The order is signed Rendulic.
DR. VON TAGWITZ: (Attorney for defendant Rendulic):
Your Honor, I would like to interrupt hero on principle to object on the following grounds: In my opinion there has to be a border line, that is, a border line according to which documents, which belong together, should be submitted under one exhibit number together and presented that way; the document which has just been presented, Exhibit 559, NOW 1747, consists as we can see here, of only one page, and thus is not incomprehensible only in itself but it becomes apart of the section where it belongs, and it belongs to a document which has already been submitted, and that is, NOKW 1242, Exhibit 328 that is contained in Document Book XIII, and I move this document NOKW 1747 not to he admitted as Exhibit 559, But instead it be incorporated as a page of Exhibit 328, NOKW 1242, contained in Document Book XIII.
MR FENSTERMACHER: If Your Honor pleases, this particular document was only received from Washington last week. We put it in here and I think it speaks for itself.
PRESIDING JUDGE BURKE: Is it a part of the document which has previously been admitted by the Tribunal under another exhibit number?
MR. FENSTERMACHER: That I don't know; I only had the same information that was given by Dr. Tagwitz just now.
PRESIDING JUDGE BURKE: For the reasons heretofore assigned by the Tribunal it will be admitted. The objection is over-ruled.
MR. FENSTERMACHER: Next on page 10 of the English, page 9 of the German Document Book NOKW 1784, which is offered as Prosecution Exhibit 560. This is a report from the 22nd Infantry Division, dated Division Staff 20 October 1943; this is a situation report to the Commandant of the Crete Fortress. I think we need not read much of this report into the record at this time. I call Your Honors attention to sub-paragraph c, Intelligence Situation, which is on page 12 of the English, and page 10 of the German.
c) Intelligence Situation:
3 cases of cable sabotage were reported, in the report period; of these, 2 in upper Rethimnon sector where it was a matter of a repetition. In the Eastern upper Sector the telephone line of Lazida was out by the means of a cloud trust. It is supposed that the sabotage there was carried out by Italian soldiers.
A total of 5 Italian officers and 18 men who tried to resist when arrested when captured in a raid action in the mountains. The officers were shot by sentence of a court-martial; the soldiers were evacuated as prisoners of war.
The report is signed on page 13 of the English, page 11 of the German: "For the Division Headquarters, the first General Staff Officer."
Next, on page 14 of the English, page 12 of the German, Document NOKW-1796 which is offered as Prosecution exhibit 561. These are various extracts from the far Diary of the 15th Mountain Corps and, as is indicated on the first page of the document "the 15th Mountain Corps was subordinate from 26 August 1943 until further notice to the 2nd Panzer Army."
On page 15 of the English and page 12 of the German under the entry in the War Diary for the 22nd of October 1943:
"Banja Luka: Lieutenant General Infantry von Leyser (now Commanding General) arrived."
And then under the entry for the 23rd of October, 1943:
"Banja Luka: The Germany Ambassador in Zagreb, SA Obergruppenfuehrer Kasche, Croatian Minister of the Interior Lorkovic and Croatian Minister for the Devastates Territories Dr. Alajbogovic for conference at headquarters.
Present: Lt. General Infantry von Leyser, Chief of the General Staff Chief of the Civil Administration with the XV Mtn. Corps, Dr. Benak."
And then the entry for the 23rd of October 1943, Banja Luka, continuation:
"In case of increase in tension of the situation, Lieutenant General Inf. von Leyser demands unilateral, concise executive authority, which was confirmed to him on the part of the Ministers (draft of the Law of the XV Mtn. Corps Adm. No. 154/43 Secret of 29 Oct. 43).
Next the entry in the Mar Diary for the 27th of October 1943:
"Banja Luka: Lt. Gen. von Leyser flies to Sink-Split. Farewell evening of Commanding General Lueters."
Entry for the 26th of October 1943, Banja Luka:
"Return of the Commanding General from Sinj-Split because of the weather situation not possible.
Transfer of command General Lueters General von Leyser delayed accordingly."
Finally, the entry of November 1, 1943, "Turning over the headquarters to Liuetenant General Infantry von Leyser by Lieutenant General Infantry Lueters."
If your Honors will make note of that date, 1 November 1943, as the date when the defendant Leyser took over command of the 15th Mountain Corps -- the war diary which is enclosed on 31 December 1943 is signed in his own hand by the Commanding General of the 1.5th Mountain Corps, "Lieutenant General Infantry von Leyser."
Next document NOKW-1754 has already been introduced in evidence so we do not offer it. We turn instead to page 25 of the English, page 21 of the German document book, NOKW-1746, which is offered as Prosecution exhibit 562.
DR. GAWLIK (Counsel for defendant Dehner): Your Honors, I ask you not to admit the document 1746 because this document has no probative value. It is not relevant and for the following reasons:
The document originates from the 187th Reserve Division and is addressed to the Commanding General of the 69th Reserve Corps. This is merely a proposal which the 187th Reserve Division made and I draw the attention of the Tribunal to the first sentence and that is: "The Division suggests." It is not quite relevant what somebody else suggests. The only decisive point is what the Commanding General of the 69th Corps did subsequently and that, unfortunately, we do not have here.
PRESIDING JUDGE BURKE: It should be a comparatively simple matter for defense counsel at an appropriate time to point out the deficiency as shown by the offered exhibit and if a portion of the document is not available to you, it should be made available to you at the appropriate time also.
MR. FENSTERMACHER: Page 25 of the English, page 21 of the German, from the 187th Reserve Division, dated "Staff Headquarters 1 November 1943", "Subject:
Application for transfer of a reinforced battalion of 367th Infantry Division to Dubrava", and the application is sent to "Corps Headquarters 69th Reserve Corps", which on this date, 1 November 1943, was commanded by the defendant Dehner.
I call your Honors' attention only to the reference in the middle of the page, 25 of the English, 21 of the German, to:
"Communist brigades have begun to transfer from the Moslavine into the Kalnik Mountains and vice versa via Dubrava. The attack with about 5000 men on Xv. Ivan Zabno on 21 September during which the police headquarters were destroyed by direct artillery hits started from there. Numerous blastings of the railroad line Krizevci-Bjelovar and Dugo Sel-Ivanic Grad were carried out from Dubrava."
I call your Honors' attention only to the final paragraph of the application which is on page 26 of the English, page 21 of the German:
"The population of the villages around Dubrava are up to 80% house partisans. Large scale seizure of hostages by a fairly large operation is necessary."
"Signed in draft: Brauner, Major General."
Next on page 27 of the English and page 22 of the German Document Book is NOKW-1808 which is offered as Prosecution Exhibit 543.
PRESIDING JUDGE BURKE: I think you are in error. That number should be 563, should it not?
MR. FENSTERMACHER: I beg your pardon, your Honor?
PRESIDING JUDGE BURKE: Isn't that Exhibit No. 563?
MR. FENSTERMACHER: That is what I thought I said, your Honor.
PRESIDING JUDGE BURKE: We understood you to say "543".
MR. FENSTERMACHER: I am sorry, your Honors. It should be Exhibit No. 563.
This, if Your Honors please, is a military identification card of Miles Uzelac of the National Liberation Army, Croatia.
It gives his name, date of birth, place of birth, rank and profession, as well as the unit or organization to which he belonged, Staff of the 19th S.D. (North Dalmatian) Division of the N.O.V. (National Liberation Army) Yugoslavia. It also lists the personal characteristics of the man, his identification number -- he entered the National Liberation Army 27 July 1941.
Your Honors will note the date at the bottom of the document, 24 November 1943 and on the final page of the document; which is 28 of the English and page 22 of the German, is the stamp of the 19th North Dalmatian Division, National Liberation Amy Croatia, signed: "Kommandant Lieutenant Colonel Kupresanin."
Signed: "Political Commissar: Petar Babic."
Turning now to page 29 of the English, 24 of the German -
THE PRESIDENT: Before you get to that, where is this to be inserted?
MR. FENSTERMACHER: That's the photograph, your Honors, which accompanies, which is NOKW-1808 and it should be inserted at page 27 of the English Document Book.
THE PRESIDENT: All right.
MR. FENSTERMACHER: Next, on page 29 of the English, 24 of the German, NOKW-1752, which is offered as Prosecution Exhibit 564. This is an order of the Military Commander Southeast to a subordinate unit, the administrative sub-area headquarters 610. The order Appears in the bar Diary of the Military Commander Southeast under the entry for the 1st of December, 1943. Your Honors will recall that at this time the Military Commander Southeast is General Felber as Chief of Staff of the defendant Geitner. I call your Honors' attention only to the final 4 lines of the document which is on page 30 of the English, page 24 of the German;
"610th Administrative sub-area headquarters receives a teletype to shoot 10 Communist reprisal prisoners in retaliation for the murder of the Mayor of Lemmica on 15 November 1943".That is on page 31 of the English.
PRESIDING JUDGE BURKE: At this point, Mr. Fenstermacher, we will recess until one--thirty this afternoon.
THE MARSHAL: The Court will recess until one-thirty this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 22 May 1947)
THE MARSHAL: The Tribunal is again in session.
PRESIDING JUDGE BURKE: The Tribunal is prepared at this time to dispose of the matter of the application of the defendants for recess at the conclusion of today's session.
The application of the defendants for a four weeks recess has received the very serious consideration of this Tribunal. We desire to afford the defendants every reasonable opportunity to present all evidence favorable to the defendants. On the other hand, unnecessary delay must be avoided.
It appears that the principal impediment to an immediate presentation of the defense is the failure of the prosecution to have present the documents and war diaries which have heretofore occupied the attention of this Tribunal. The uncertainty of the time of their production, if they are to be produced at all, does appear to be an uncertainty which troubles the Tribunal as well as the defense. On the other hand, these defendants have a general knowledge of the contents of these documents. Defendants either prepared them, were responsible for their preparation or had notice of their contents, otherwise they have no probative value. Anything contained in these documents and diaries, if favorable to the defendants, can only be corroborative of the knowledge that the defendants already have. Under such a situation, it is not essential that these documents and diaries be in the court room at the commencement of the defense. If the defendants know that these diaries and documents contained evidence in support of their defense, they should, of course, have made application for their production long ago. Their production under the rule announced by the Tribunal is for the purpose of determining the meaning of the portions offered is in no way changed when the document or diary is considered as a whole.