"2. A great number of leading Jews were, after a short examination in Paris, again released. The attempts on the lives of members of the armed forces have not stopped; on the contrary they continue. This reveals an unmistakable plan to disrupt the German-French cooperation, to force Germany to retaliate, and, with this, evoke a new defense on the part of the French against Germany. I suggest to the Fuehrer that, instead of executing 100 Frenchmen, we substitute 100 Jewish bankers, lawyers, etc. It is the Jews in London and Now York who incite the French communists to commit acts of violence, and it seems only fair that the members of this race should pay for this. It is not the little Jews, but the leading Jaws in France, who should be held responsible. That would tend to awaken the Anti-Jewish sentiment.
"/Signed/ A. Rosenberg."
THE PRESIDENT: May I ask you to speak slowly so that your application will come to me through the telephones correctly.
DR. THOMA (Defense Counsel for Rosenberg): I should like to take this opportunity, at this moment when the Prosecutor has been treating of my client, Rosenberg, I should like to bring an objection to the Commission. Document 212 PS, US Exhibit 272. The Prosecutor stated that this document was an instruction by the Eastern Minister. It begins with the words--
THE PRESIDENT: None of that has come through on the earphones. I don't understand you. You had hotter begin again.
DR. THOMA: The Prosecutor put in a document, No. 212 PS, US Exhibit 272, and stated that that was an instruction given by the Eastern Minister about the treatment of Jews. In this document, he had instructed that violations against German measures, only be punished by death.
This document has not been shown to my
THE PRESIDENT: More slowly, please.
DR. THOMA: This document was not given by the Defendant Rosenberg.
It bears neither his address nor his signature. I, therefore, object
THE PRESIDENT: Wait a minute. I don't think that Counsel for from Rosenberg.
I didn't so understand him.
DR. THOMA: I understood him to say that it was an instruction given by the Minister for the East.
If I'm not mistaken, he also said it was dated April, 1941.
At that time there was no Ministry for the East.
Rosenberg was not a party to it.
THE PRESIDENT: I'll ask the Counsel for the Prosecution.
MAJOR WILLIAM L. WALSH: It is my understanding, Sir, that that
DR. THOMA: That is true, but it was filed among the papers of
THE PRESIDENT: You see, Rosenberg, when he is called as a he has never seen the document before.
All that Counsel for the was found in Rosenberg's file.
You can say or prove by Rosenberg's saw the document.
Do you understand?
DR. THOMA: Yes.
THE PRESIDENT: It is five o'clock now, so we will adjourn.
(Whereupon at 17.00 hours the Hearing of the Tribunal adjourned to reconvene at 10.
00 hours on 14th December, 1945.)
Tribunal, in the matter of: The United States of
DR. KAUFFMANN (Counsel for the Defendant Kaltenbrunner):
I should be so bold as to present two points to the Court. In yesterday's and today's presentation of evidence in that section dealing with war crimes, I should like to strike from the record the affidavit of the witness Pfaffenberger. It is possible to summon this witness personally. His testimony is fragmentary in the following important points: It cannot be seen whether in many cases it is a matter of his personal observations, or of assertions from hearsay. From this it is all too easy to draw false conclusions. The witness did not say that the Lager Commandant Koch, along with his inhumane wife, were condemned to death by an SS court, and precisely for these reasons. It is not possible to communicate the complete truth of an event in that a witness can be heard later on in the trial. Until then every one, Judges, Defendants, and Prosecution, stand under the impression of such terrible testimony. the human spirit, that one would like to turn one's eyes and ears away from it. In the meantime, such statements make their way through the whole press of the world. Civilization is justifiably indignant. The consequences of such premature testimony are not to be calculated. The Prosecution well recognizes the significance of this testimony, and presented the documents yesterday in court. set aright, the previous effects of it can never be eliminated. Truth suffers and justice is endangered. According to the 19th Article in the Charter, such a condition should not have been brought about.
the trial, that we do not read the testimony of witnesses who live in Germany. Their appearance here is, therefore, possible because at this point in the trial it is a question of accusations, the subject of which is even more terrible than the subject of the accusations regarding the war of aggression, because it is a question here of the terrible living and death of human beings. the testimony of the witness Schuschnigg, and it is my opinion that what was valid then, should be all the more valid at this point in the trial. regards to the Defendant Kaltenbrunner himself. It was not until the spring of 1943 that he became Chief of the Reich Main Security Office, but according to the testimony of the Defense, many, if not all, of his signatures were forged, although the administration of the concentration camps and everything concerned with concentration camps, lay in his hands. I hope to be able to prove that. I have mentioned that in order to justify my second suggestion.
THE PRESIDENT: The Tribunal would like to hear Counsel for the Chief Prosecutor of the United States.
JUSTICE JACKSON: May it please the Tribunal, Mr. Dodd, who had charge of the matter, which is under discussion, left for the United States yesterday, and I shall have to substitute for him as best I may. impossibility of covering a decade of time, a continent of space, and a million acts, by ordinary rules of proof, and at the same time to finish this case within the lives of living men. We don't want to have a trial here, like the trial of Warren Hastings, that lasted seven years. Therefore, the Charter set up only two standards by which any evidence, I submit, may be accepted. The first is that evidence must be relevant to the issue. The second is that it must have some probative value.
That was made mandatory upon this Tribunal in Article 19 because of the difficulty of ever trying this case, if we used the technical rules of common law proof. ordinary court of law, was in order to avoid the precedent-creating effect of what is done here on our own law, and the precedent control, which would exist if this were an ordinary judicial body. technical rules of evidence. It shall adopt and apply, to the greatest possible extent, expeditious and non-technical procedure and shall admit any evidence, which it deems to have probative value. That was made mandatory, that it shall admit any evidence, which it deems to have probative value. The purpose of that provision, your Honors, I may say, was this: that the whole controversy in this case -- and we have no doubt there is room for controversy -- should be centered upon the value of evidence and not on its admissibility.
We have no jury. There is no occasion for applying jury rules. Therefore, when a piece of evidence is offered, there are two questions, which arise: Does it have probative value? If it has no probative value, then it should not encumber the records, of course. The second is, Does it have relevancy? If it hasn't, of course, it should not come in.
The evidence in question has relevance. No one questions that. No one can say that an affidavit duly sworn does not have some probative value. What probative value it has, the weight of it, should be determined on the submission of the case. That is to say, if a witness has made a statement in an affidavit, and it is denied by Mr. Kaltenbrunner, and you believe that the denial has weight and credibility, of course, the affidavit should not be considered in the final consideration of the case. But we are dealing here with events that took place over great periods of time and great distances. We are dealing with witnesses widely scattered and the situation where communications are almost at a standstill. unchallenged, it is not then beyond belief that you would give it value and weight.
An affidavit might lack credibility, such as had no personal knowledge.
I don't say that every affidavit that comes along has probative value just because it is sworn to.
But long consideration, must be followed; that if when a piece of should be admitted.
If it stands undenied at the close of the take an indefinite period of time as we have already seen.
I may it could have been placed before us; and if it were to be denied We want to adhere to this Charter.
I submit it is no reason time are both involved in this.
I think that the Tribunal should days and days of proof.
I may say that this ruling is more There is another reason perhaps.
We have some situations his admission.
We have to make our proof largely from enemy sources.
All this proof, and every witness, eight months ago were in the hands of the enemy.
We have to make our proof from them.
God alone knows how much proof there is in this world that we haven't been able to roach.
We submit that the orderly affidavits.
If they stand unquestioned at the end of the case, there is no issue about them.
If they are questioned, then the
THE PRESIDENT: Mr. Justice Jackson, I have three questions I should like to ask you.
The first is: where is Pfaffenberger?
JUSTICE JACKSON: That I cannot answer at the moment, but I will get an answer as quickly as I can.
It is unknown to us at the moment.
If we are able to ascertain, I will inform you at
THE PRESIDENT: The second point to which I wish to draw your attention is Article 16 (e) of the Charter, which contemplates cross-examination of witnesses by the Defendants.
The only point
JUSTICE JACKSON: I think that this provision means just exactly what it says.
If we call a witness, they have the right of cross-examination.
If he is not called, they have the right course, the right of cross-examination.
The provision itself,
THE PRESIDENT: Then the next point to which I wish to draw your attention is Article 17 (a). As I understood it, you were evidence which was relevant.
Therefore, I draw your attention to Article 17 (a) which gives the Tribunal the power to summon
JUSTICE JACKSON: That is right. I think there is no conflict in that whatever. The powers of the Tribunal to summon witnesses and to put questions to them was introduced into this Charter through the continental systems of jurisprudence. Usually there are not Tribunal witnesses in the States. Witnesses are called only by one of the parties, but it was suggested by the continental scholars that in this kind of a case, since we were utilizing a mixture of the two procedures, the Tribunal itself should have the right to do several things. One is to summon witnesses, to require their attendance, and to put questions to them. I submit that this witness, whose affidavit has been received, can be called, if we can find him, by the Tribunal and questioned. Article 17 is the Tribunal has the right to interrogate any defendant. Of course, under our system of jurisprudence, the Tribunal would have no such right, because the defendant has the unqualified right to refrain from being a witness; but in deference again to the continental system, the Tribunal was given the right to interrogate any defendant, and his immunities, which he would have under the Constitution of the United States, if he were being tried under our system, were taken away. power the Tribunal on its own motion (Article 17) to summon witnesses, to supplement anything that is offered, to put any questions to witnesses, and to any defendant. be denied, but that does not abrogate Article 19, which was intended to enable us to put our case before the Tribunal, so that the issue would then be drawn by the defendants, and the weight of what we offer determined on final submission.
THE PRESIDENT: Lastly, there is Article 17 (e), which I suppose, in your submission, would entitle the commission, if they thought right, after receiving the affidavit, to take the evidence on Pfaffenberger on commission.
JUSTICE JACKSON: Yes, I think it would, Your Honor. I may say, in reference to that section, that what perhaps would be surprising to those accustomed to our system of jurisprudence, that it was one of the most controversial issues we had in the framing of this Charter. We had in mind the authorization of what we call "Masters", to go into various localities, perhaps, and take testimony, not knowing what might be necessary; and our practice of appointing Masters in Equity to take testimony and make recommendations, was not acceptable to the continental system, and we finally compromised on this provision, which authorizes the taking of testimony by commissions. That was the extent of it.
THE PRESIDENT: Thank you.
GENERAL RUDENKO: Mr. President, I am addressing you after my colleague, Mr. Jackson, so that I could come out with my own statement, inasmuch as the Defense motion, from my standpoint, is principally wrong, and it should be objected to by the Prosecution. Prosecutor of the United States, Mr. Justice Jackson. I also would like, Your Honors, to point out the following circumstances: The Defense Counsel, in his motion, put the question as to which the prosecution would refer and read to the public the documents of witnesses' testimony, testimony of those persons who live in Germany. Such a statement, from the standpoint of the Prosecution, is absolutely wrong, because inasmuch as it was known from the previous stages of the trial, we find that most of the atrocities were committed by the defendants in all parts of Europe. Therefore, it is clearly understood that those witnesses live in different parts of Europe, and the Prosecution, unavoidably, must use the testimony of those witnesses, both written and oral. will be relating the facts of atrocities, which pertain to military war crimes and crimes against humanity, the scope of which was enormous; and Your Honors, we shall present, as testimony or as evidence, documents originating from the defendants themselves, and also the victims of those crimes, crimes of a warlike nature, and it would be impossible to present to the Tribunal all of those witnesses, in order that they could give their oral testimony.
It is impossible, and the presenting of written affidavits is unavoidable.
Your Honors referred Mr. Jackson to Article 17, with respect to the calling of witnesses by the Tribunal. This is quite correct. Article 17 establishes this right; and the Prosecution naturally understands that the calling of witnesses to trial is unavoidable; but it is impossible to call all the witnesses, all those people who could give their testimony about those crimes which were perpetrated by the defendants. Therefore, Your Honors, once again I want to refer to Article 17 of the Charter, which provides that the Tribunal shall not be bound by rules of technical evidence. The Tribunal establishes and adopts whatever most expeditious -- and I emphasize, Your Honors, "most expeditious" -and less complicated by formalities the order of procedure, and it admits any evidence which, in its opinion, has probative value.
I also would ask Your Honors to consider this as a basis, and this naturally allows acceptance of such written testimony by the witnesses, which is being presented. Justice Jackson said, and whatever he said, I fully share.
MR. ROBERTS: May it please the Tribunal, as far as the British Delegation is concerned, they desire to support what the American Chief Prosecutor has said, and we do not feel we can usefully add anything.
THE PRESIDENT: (To a member of the French Delegation, Mr. Edgar Faure) Do you wish to add anything?
MR. FAURE: Mr. President, I wish simply to inform the Court that the French Prosecution is entirely in accord with the remarks which weremade by the American Prosecutor, and by the Soviet Prosecutor. that it is not possible to settle the questions of evidence in this trial, solely by the practice of verbal testimony in the courtroom, or under these conditions, it might be opportune to call to the witness stand, which is obviously impossible, all the inhabitants of the territories who have been involved, and which have been occupied. The defense has every opportunity to discuss, later on, the documents which have been presented by the Prosecution, and notably, the written testimony.
THE PRESIDENT: I don't think that Counsel for Kaltenbrunner was suggesting that every witness must be called, but that witnesses who were in Germany and available should be called, and that their evidence should not be given by affidavit.
MR. FAURE: The Defense has a right to call them as witnesses if it desires to hear them.
DR. KAUFFMAN: Excuse me if I add just a few words to this important question. Those who have just spoken have said that one of the main principles of this trial is the circumstance that the trial should proceed speedily. That is also expressed in Paragraph 19 of the Charter. No one can more hope that this principle is put into execution than we Defense Counsel ourselves; but it is nevertheless my opinion that one principle, which is the highest that mankind knows, cannot suffer in the interests of speed, and that principle is the principle of truth; and if it were simply a possibility that an over-hasty trial might give offense to truth, then the formal methods of procedure must step into the background.
There are principles in mankind that are unspoken, and that do not have to be spoken. essential content. The objections I raised to the testimony of the witness in question, seem to me so justified, that the correct principle of speed should be confronted with the principle of truth, and should withdraw in its favor. It is a question of humanity. Humanity is in question here, and we want to find the truth for our children. If such testimony remains uncontradicted for months, then a part of humanity could feel desperation, and particularly, the German folk would suffer as a consequence.
DR. BERGOLD: (Counsel for Defendant Bormann) If it please the Court, I am Dr. Bergold, Defense Counsel for Bormann.
In this debate, I should like to bring up one point. It appears important to me, because it has apparently be the source of this debate. According to our system of jurisprudence, the Prosecution has the duty, not only of producing the incriminating evidence, but also that which serves to help the defendants. I can well understand the Defense Counsel for Kaltenbrunner, because he protests if this important point is net observed. his wife, and condemned them to death, it is highly probably that the Prosecution knew of this fact, and that the horrible exhibits that were presented to us were found in the files of the German Government. along with this exhibit, had made the statement that the German authorities had condemned such terrible things, and had condemned the perpetrators of them to death.
procedure, the Prosecution in this case simply presents incriminating evidence, and on the basis of a single document or a single witness, but it does not present the exculpating evidence from the same sources. If this procedure were changed, and if the prosecution had stated that this man had been condemned to death, then, first of all, the impression about Kaltenbrunner would not have been so bad: and secondly, public opinion would have been left with a different impression. Then, presumably, in this case, my colleague, Kauffmann, could have limited himself to the request that in the further course of this trial, Kaltenbrunner would have been given the opportunity to say that he had nothing to do with it; but the terrible impression which has been left with the world and on us, would have been avoided.
THE PRESIDENT: Will you refer me to the part of the German Law to which you were referring, where you say it is the duty of the Prosecution, not only to produce evidence for the Prosecution, but also to produce evidence for the Defense.
DR. BERGOLD: That is a general principle of jurisprudence, Paragraph 161 of the Reichsstrafgesetzblatt. That is one of the basic principles of law that we have in Germany.
THE PRESIDENT: Give me that reference again.
DR BERGOLD: Paragraph 161. This principle, according to German Law
THE PRESIDENT: 161 of what?
DR. BERGOLD: Reichsstrafprozessordnung. The same thing is true of Austria. There is a similar paragraph in Austrian jurisprudence. This principle is supposed to permit that a defendant should have the whole truth said about him, because frequently he is not in a position to produce all the evidence in his favor. Therefore, German jurisprudence has commissioned the Prosecution also to present exculpating evidence, along with its incriminating evidence.
DR. KUBSCHOF (Counsel of Defendant von Papen): Specifically, with regards to the question of Pfaffenberger, Pfaffenberger does not concern the Defendant von Papen, since he is not concerned in this part of the indictment. I am simply speaking here as regards the principal involved. the Prosecution and the Defense Counsel cannot be competent. Justice Jackson agrees with us that every witness whose affidavit can be presented, be thus presented, and then be given over to the Defense, if he is obtainable. If in every case in which the Defense stands on the point that an affidavit does not adequately serve as proof, and that only first-hand evidence, such as oral testimony, should be taken, in such a case, if this point of view were taken, there would always be a double hearing of testimony, namely, first the affidavit, and secondly, the hearing and cross-examination of the witness. Thus undoubtedly would lead to a prolongation of the trial. In each of these cases, the Court would, right at the very beginning, not allow the reading of the affidavit, in order to prevent this delay. Consequently, it is probably just as pointless if the Prosecution presents affidavits of which it can be expected that the witness will later be called and heard. (At this point there was no translation of some of Dr. Kubuschof's argument). about this. The Defense, of course, want nothing more than what we already assume of the Prosecution, namely, a speedy but also just course of the trial; and it is, of course, not well if things are presented through an affidavit.
The hearing of witnesses must be clarified.
THE PRESIDENT: The Tribunal will consider the objection that has been raised when the Court adjourns.
JUSTICE JACKSON: May I have one word?
THE PRESIDENT: Mr. Justice Jackson, it is unusual to hear counsel who oppose an objection for a second time.
JUSTICE JACKSON: I merely want to give you the answer to the question which you asked me as to the whereabouts of Pfaffenberger. My information is that these affidavits were taken by the American Army at the time they liberated the people in these concentration camps, at the time the films were taken, and the whole evidence available gathered. This witness was present at the concentration camp, and at that time his statements were taken. We do not know his present whereabouts, and I see no reasonable likelihood that we will be able to locate him within any short time. We will make an effort.
MR. ROBERTS: May it please the Tribunal, might I endeavor to assist? I think I have now found the German order to which the Defense Counsel referred, paragraph 161. It is, of course, an order in German. Perhaps I might hand it up, and the Court Translators will no doubt deal with the paragraph (handing up volume to the Tribunal).
JUSTICE JACKSON: I think one bit of that initial information must be furnished, in view of the statements made here that we have information that we are witholding. Kaltenbrunner has been interrogated. At no time has he made such a claim, so I am advised by our interrogators; and under the Charter, our duty is to present the case for the Prosecution. I do not, not in any purpose, serve two masters.
THE PRESIDENT: Now, I call upon Major Walsh.
THE PRESIDENT: Major Walsh, did you give a lettering to the document books with which you are dealing?
MAJOR WALSH: I didn't understand, Your Honor.
THE PRESIDENT: Did you give a letter of the alphabet to the document books with which you were dealing?
MAJOR WALSH: Yes. If Your Honor please, it is the letter "T".
THE PRESIDENT: "T"?
MAJOR WALSH: Yes. May it please the Tribunal, during the last session the Prosecution presented briefly the preliminary steps leading to the ultimate objective of the Nazi Party and the Nazi controlled state, that is, the extermination of the Jews. Propaganda, decress, the infamous Nurnberg Laws, boycotts, registration and ghettoization were the initial measures in the program. I shall, with the Court's permission, continue with a discussion of the methods utilized for the annihilation of the Jewish people.
I would like to first discuss starvation. Policies were designed and adapted to deprive the Jews of the most elemental necessities of life. Again the Defendant Hans Frank, then Governor General of Poland, wrote in his diary that Hunger rations were introduced in the Warsaw Ghetto and, referring to the new food regulations in August 1942, he callously, and perhaps casually, noted that by these food regulations virtually condemned more than one million Jews to death. I offer in evidence that part of Document 2233E-PS, diary of Hans Frank, Conference Volume, 24 August 1942, US Exhibit 283.
THE PRESIDENT: What letter is after 2233?
MAJOR WALSH: That is 2233E-PS.
THE PRESIDENT:Thank you.
MAJOR WALSH: And I quote.
"That we sentence 1,200,000 Jews to die of hunger should be noted only marginally. It is a matter of course that should the Jews not starve to death it would we hope result in a speeding up of the anti-Jewish measures." End of quotation.
Frank's diary is not the only guide to the deliberate policy of starvation of the Jews. They were prohibited from pursuin agricultural activities in order to cut then off from access to source of food. I offer Document 1138-PS in evidence, US Exhibit 284.
I refer the Court to page 4 of the translation, marked with the Roman Numeral V, paragraphs a und b. The document is entitled "Provisional Directives on the Treatment of Jews", and it was issued bt the Reichscommissar for the Ostland I read:
"Jews must be cleaned out from the countryside. The Jews are to be removed from all trades, especially from trade with agricultural products and other foodstuffs." End of quotation. meat, eggs and milk. paragrph 2 on the first page of the translation before the Court. This ist an original decree dated 18 September 1942, from the Ministry of Agriculture. I quote:
"Jews will no longer receive the following foods, beginnung with the 42nd distribution period (19 October 1942): meat, meat products, eggs, wheat products (cake, white bread, wheat rolls, wheat flour, etc.) whole milk, fresh skimmed milk, as well as such food distributed not on food ration cards issued uniformly throughout the Reich but on local supply certificates or by special announcement of the nutrition office on extra coupons of the food cards.
"Jewish children und young people over ten years of age will receive the bread ration of the normal consumer." End of quote. food concessions allotted to non-Jews. Seizure by the State Police of food shipments to Jews from abroad was authorized, and the Jewish ration cards were distinctly marked with the word "Jew" in color across the face of the cards, so that the storekeepers could readili identify and discriminate against Jewish purchasers.
The Czechoslovakian Government published in 1943 an official document entitled "Czechoslovakia Fights Back". I offer this book in evidence, Document 1689-PS, US Exhibit 286.
To summarize the contents of page 110, it states that the Jewish food purchases were confined to certain areas and to certain days and hours. As might be expected, the period permitted for the purchases was during the time when food stocks were likely to be exhausted.
By Special Order No.44 for the Eastern Occupied Territories, dated 4 Nov. 1941, the Jews were limited to rations as low as only one-half of the lowest basic category of other people, and the Ministry of Agriculture was empowered to exclude Jews entirely or partially from obtaining food, thus exposing the Jewish community death by starvation.
THE PRESIDENT: Did you read anything from 1689-PS?
MAJOR WALSH: Just to summarize, Sir, the contents of page 110
THE PRESIDENT: I see. Now you are offerin L...
MAJOR WALSH:L-165, Your Honor, US Exhibit 287. I refer the Court to the last half of the first paragraph of the translation. This is a press bulletin issued by the Polish Ministry of Information, dated 15 November 1942. The Polish Ministry concludes that upon the basis of the nature of the seoarate rationing and the amount of food available to Jews in the Warsaw and Cracow ghettos, the system was designed to bring about starvation, and from the quotation I read:
"In regard to food supplies they are brought under a completely separate system, which is obviously aimed at depriving them of the most elemental necessities of life." End of quotation. Justice Jackson in his opening address to the Tribunal made reference to Document 1061-PS "The Warsaw Ghetto is No More", marked USA Exhibit 275. bound, profusely illustrated, typed on heavy bond paper, is the almost unbelievable recital of a proud accomplishment by Major General of the Police Stroop, who signed the report with a bold hand. General Stroop in this report first pays tribute to the bravery and heroism of the German forces who participated in the ruthless and merciless action against a helpless, defenseless group of Jews, numbering, to be exact, 56,065, including, of course, the infants and the women. In this document he proceeds to relate the day-by-day account of the ultimate accomplishment of his mission -- to destroy and to obliterate the Warsaw Ghetto. Warsaw in November 1940, was inhabited by about 400,000 Jews, and prior to the action for the destruction of this Ghetto, some 316,000 had already been deported. The Court wall note that this report is approximately 75 pages in length, and the Prosecution believes that the contents are of such striking evidentiary value that no part should be omitted from the permanent records of the Tribunal, and that the Tribunal should consider the entire report in judging the guilt of these defendants. of the document at least twenty days ago, and have had ample time, I am sure, to scrutinize it in detail. If the Court, in the exercise of its judgment, determines that the entire report may be accepted in toto, the Prosecution believes that the reading of a portion of the summary, together with brief excerpts from the daily teletype reports, will suffice for the oral record.