THE PRESIDENT: Have they been filed by the American Prosecutor too?
M. DUBOST: Not all. Some were filed by the American Prosecution
THE PRESIDENT: All I am pointing out-- I think, M. Dubost,
M. DUBOST: Will you excuse me, Mr. President. I don't
THE PRESIDENT: I haven't finished the sentence. What I was document, if it hasn't already been put in, give it a number and Is that clear?
M. DUBOST: It is clear, Mr. President, but I believe that I
THE PRESIDENT: You may have put numbers on the documents, but you haven't announced them in some cases.
M. DUBOST: If the Tribunal will pardon me, one of these documents from which I have read was submitted before.
I just reached
THE PRESIDENT: Well, we have had a good deal of evidence already the battle zone.
You had quite a lot of evidence upon that subject.
France we should be most willing to hear it, but we don't desire to
M. DUBOST: I didn't think that I had brought cumulative proof for the execution of these orders which were carried out.
Document 510-PS, page 48, has not been read.
We submit it under the number 367, and we ask the Tribunal to consider it as officially filed; a units, No. 532-PS, which is the appendix to this document.
We submit population.
I don't have to go into this memorandum again. This is of Justice, in order that they might prescribe any prosecution against German civilians who might have murdered Allied aviators.
This is the purpose of Document 565-PS, which you will find in the appendix to the document book.
"Ministry of Justice of the Reich." This document will become number 370, and I submit it as an official French document.
"The Ministry of Justice of the Reich. 4 June 1944. To the Ministry of Justice of the Reich. Doctor Thierack:
"Concerning the justice of the people against Anglo-American citizens: the chief of the Party Chancery informs me by secret memorandum and asks me to make it known to you also. I put myself to do it in this letter in asking you to examine by what measures you wish to inform the tribunals and the public prosecutors." Kaltenbrunner, Ribbentrop, Goering (all three defendants), Himmler, Brauchitsch, and at which officers from the Luftwaffe were present, they decided to definitely fix the list of aerial operations which would be considered acts of terrorism. The original transcript established by Warlimont and bearing commentaries of Jodl and of Keitel is Document 735-PS, which I submit under number 371-RS. document book -- that lynching was the beet punishment to stop certain types of aerial operations directed against the civilian population. Kaltenbrunner promised, so far as the active collaboration of the SD was concerned -- page sixty eight at the end of the first paragraph. This document, so far as I know, was never read.
DOCTOR EXNER (Counsel for defendant Jodl): I am protesting against Document 532-PS dated 24.6.44. That is a sketch of a decree which was presented to Jodl, but which was not granted by him, and therefore is not to be considered. to the fact that we defense attorneys did not receive a document book the same as the one presented to the Tribunal, and it is therefore very hard for us to follow the speech of the prosecution.
refer to future and past proceedings. But a document book in chronological order I have not received in weeks. Furthermore, it would be desirable for us to receive the documents the day before. In that case, when testimony is presented, we could be of assistance.
THE PRESIDENT: Dr. Exner, are you saying that you have not received the document book, or that you have not received the dossier? Are you saying that you have not received the document book or this thing which is the dossier of the speech?
DR. EXNER: I did not receive the document book. I would like to add something further. Some of the documents which were just presented were quoted without signatures, without date, and it is questionable whether these so-called documents are to be considered as documents.
THE PRESIDENT: Well, I imagine that you have just heard -- I have told M. Dubost that he must announce the exhibit number which the French Prosecutor is giving to any document which he puts in evidence. As I understand it, he has been putting numbers upon the documents, but in certain cases, he has not announced the number in open court. The document, as you have seen, has been presented, and, as I understand, it has a number upon it, but he has not in every case announced the number, and the Tribunal has told M. Dubost that it wishes and it orders that every document put in by the French Prosecutor should have an exhibit number announced in Court. That meets the one point that you raised. of the order which the Tribunal has made that a certain number of copies of the documents should be deposited in the defendants' Information Center, or otherwise furnished to defendants' Counsel.
(Off the record discussion by the Court)
THE PRESIDENT: Dr. Exner, is there anything further you wish to say upon these points, because we are just about to have a recess for a few moments. We would like to have what you have to say before we have the recess.
DR. EXNER: I have nothing further to add to that, your Honor, but if I may be permitted to make a further remark, we were advised that it was the wish of your Honor, the President, that we should hear every day what is to be the content of the proceeding the following day, which would, of course, aid our preparations no end, and this omission did not happen just once. I myself have never heard the day before what was to be considered the following day.
THE PRESIDENT: Thank you. M. Dubost, the Tribunal would like to hear what you have to say upon the points raised by Dr. Exner; first of all, upon the Document 532-PS; secondly, why he did not receive a document book; and lastly, why he has not received any program as to what is to be gone into on the following day.
M. DUBOST: As to the question of program, as Dr. Exner pointed out, the Prosecution may have been supposed to present this program, but no one has ever done it -- neither the French Prosecution nor its predecessors. Perhaps it has sinned, since this request was made, but I don't remember. We will request them to do that. not handed to the Defense in the form in which the Tribunal received it. However, I am certain that yesterday I sent to the Defense Quarters the text in German and several texts in French of all the documents which I was to submit today. I can't absolutely assure the Tribunal that they were placed in the order in which you have them, but I am sure that they had all the documents.
THE PRESIDENT: As to Document 532?
M. DUBOST. This document, 532, was not read in the hearing. I could not hide that there was a manuscript note in the margin, but I didn't read this document.
THE PRESIDENT: Is it a document that had been put in before?
M. DUBOST: I don't believe so, Mr. President. In my dossier there are a certain number of documents which I have not read, since the Tribunal ordered me to condense and shorten my exposition, and Document 532 is one of those, but I didn't read it.
THE PRESIDENT: I know you didn't read it, but did you purport to put it in evidence?
M. DUBOST: I didn't read it, Mr. President.
THE PRESIDENT: I know you didn't read it, but did you put it in evidence? Did you give it a number?
M. DUBOST: It is part of this series of documents which I did not read since I wish to summarize and shorten my presentation.
THE PRESIDENT: Well, M. Dubost, I have said that I knew that you did not read it, and I have asked you -- I think twice -- whether you purported to put it in evidence. Did you give it a number?
M. DUBOST: Yes, that is correct, 368, yes.
THE PRESIDENT: The document, according to Dr. Exner, is a draft of a decree which was presented to Jodl but wasn't granted by him. Those were his words, as they came through on the translation, and, therefore, he submits that it is not to be considered, and there is nothing to show that the document was ever anything more than a draft.
If so, isn't it clear that it ought not to be received in evidence?
M. DUBOST: This is a question which the Tribunal will decide after having heard the explanation of Dr. Exner. This document didn't seem to me of major importance in my presentation, since I didn't read from it. At any rate, I could not hide from the Tribunal that there was a manuscript note on the margin, and it is certain that this manuscript note is an element to be taken into consideration, and which the Tribunal will consider whether the document should be received or not be received, after having heard the explanations of the Defense.
(Whereupon the Tribunal recessed from 1540 hours to 1605 hours.)
DR. NELTE: Dr. Nelte, defense counsel for Keitel.
Mr. President, I had occasion during the intermission to talk to my client, Keitel. The French Prosecutor had before- this intermission referred to a document and had read from a note from Admiral Darlan, addressed to the French Ambassador Scapini. This had been introduced in evidence. this document that the German generals agreement concerning the French troops had not been kept. In consideration of the seriousness of this, I would be obliged to the French prosecution if they would declare with respect to this document, first, whether these recriminations of the French Government had been brought to the attention of the German Government.
THE PRESIDENT: Document 668, is it?
DR. NELTE: 668, yes.
THE PRESIDENT: Are you referring to Document S-668?
DR. NELTE: Yes, additional number No. 2.
THE PRESIDENT: It would be more convenient if you could refer to the document by the usual document number. The document I have is Document S-668, at the top of the document.
DR. NELTE: On my document it has been inserted in pencil.
THE PRESIDENT: Is it dated the 4th of April, 1941?
DR. NELTE: It has no date.
THE PRESIDENT: Will you hand it up?
(The paper was handed to the President.)
Yes, I follow now. What do you say about it?
DR. NELTE: The French Prosecutor had concluded from this document that what was contained in this document was also proved. I would like to point out that it is an excerpt from a note of Admiral Darlan, addressed to the French Ambassador Scapini. In other words, this document does not show whethe Ambassador Scapini had taken the necessary steps with the German Government or, furthermore, what the German Government had answered to this note. For this reason I would like to ask the French Prosecutor to declare whether he can find in his document that these very serious recriminations have been brought to the attention of the German Government, and secondly, what the German Government answered. Since that document is in possession of the Allies, it is not possible to ask Keitel to produce it.
(M. Dubost stepped before the microphone.)
THE PRESIDENT: Perhaps the most convenient course would be, if you wish to say anything about the objection which Doctor Nelte has just made, for you to say it now. As I understand it, that objection is that this document, 668, is a note by Admiral Darlan complaining that certain French troops were surrendered on the terms that they were not to be made prisoners of war, but were afterwards sent to Germany as prisoners of war. What Doctor Nelte asks is, was that matter taken up with the German Government, and if so, what answer did the German Government give?
That seems to the Tribunal to be a reasonable request for Doctor Nelte to make.
M. DUBOST: A reply has been given, Mr. President, through the reading of the appendix of Ambassador Scapini's statement addressed to Ambassador Abet.
THE PRESIDENT: My attention is drawn to the fact that the two documents to which you refer are dated the 4th of April. The document to which Doctor Nelte refers is a subsequent document, namely, one dated the 22nd of April. Therefore it does not appear from documents which were anterior to the document of 22nd April as to what happened afterward.
(There was no reply.)
THE PRESIDENT: Did that not come through to you?
M. DUBOST: Mr. President, I am not aware of this. These documents were given to me by the official French service. They are from regular parliamentary archives and were put together by the French official service.
THE PRESIDENT: Perhaps it should be investigated and found out whether the matter was taken up with the German Government and what answer the German Government gave. Not at the moment but in the course of time.
M. DUBOST: I shall have to apply to the French Government in order to discover whether in our archives there is any trace of any communications in the sense indicated, that is, by the French Government to the German Government.
THE PRESIDENT: In the event of your not being able to get any satisfactory explanation, the Tribunal will take notice of Doctor Nelte's objection, or criticism, rather, of the document.
you are referring are documents addressed by the Ambassador of France to M. Abetz, the Ambassador of Germany, and it may be, therefore, that they are similar correspondence in reference to Document No. 668 here in the same file, which is the file that the French Government presumably has accomplished, or might have accomplished.
M. DUBOST: It is possible that is the hypothesis, and I naturally think that that was possible.
THE PRESIDENT: Therefore, you can not express yourself for the moment as to the other matter which is raised by Dr. Exner; then the Tribunal stress itself that Document 532-PS should be stricken out of the record insofar as it is in the record. For the present if the United States and the French prosecutors wish to say that the document will again probably be put in evidence at a future date, they may apply to do so. Then assume that the defendant's counsel, Dr. Exner, for instance, wishes to make any use of the document, of course, he is at liberty to do so.
In reference to the other matters which Dr. Exner raised, it is the wish of the Tribunal to assist defendants' counsel any way possible in their work, and that they are, therefore, most anxious that the rules which they have laid down as to documents should be strictly complied with, and they think that copies of the original documents certainly should contain anything the original documents do contain.
This particular Document No. 532-PS, as a copy, I think I am right in saying does not contain the marginal note in the script which the original contains. At any rate it is important that copies should contain everything which is in the originals.
Then there is another matter to which I wish to refer. I have already said that it is very important that documents, when they are put in evidence, should not only be numbered as exhibits, but that the exhibit number should be stated at the time, and also even more important, or as important, that the certificate certifying where the document comes from should also be produced for the Tribunal. Every document put in by the United States bears upon it a certificate stating where it had been found, or what was its origin, and it is important that that practice should be adopted in every case.
both to defendants' counsel and to the Tribunal too, that they should be informed at least the night before of the program which counsel proposes to adopt for the following day. It is true, as was said, that perhaps that has not been absolutely regularly carried out by the prosecutor on all occasions, but it has been done on quite a number of occasions within my recollection, and it is at any rate the most important practice which the Tribunal desires should be carried out, and they would be glad to know above all what you, Mr. Dubost, propose to address yourself to tomorrow, and the Tribunal would be very grateful to know how long the French prosecutors anticipate their case will take. They would like before you finish, or at the conclusion of your address this afternoon, to indicate to the Tribunal, and to the defendants' counsel, what the program for tomorrow is to be.
SIR DAVID MAXWELL-FYFE: If your Honor please, if I could say one word in regard to the position of that document, because I had an opportunity during recess to consult my friend Mr. Dodd, and also my friend M. Dubost; it is that all PS documents, every one of a series of captured documents, their origin and the steps taken subsequent to the article, were verified on 22 November by Major Coogan, and were put in by my friend Colonel Storey. is delighted to elaborate any time convenient to the Tribunal, that all such documents being captured and verified in that way are admissible. I stress the word admissible, but the weight which the Tribunal will attach to any respective document is, or course, a matter at which the Tribunal would arrive from the contents of the document and the circumstances under which it came into being. That, I say, is the only reason I ventured to intervene at the moment because there might be some confusion between the general verification of the document as a captured document, which is done by Major Coogan as his service, and the individual certificate of translation, that is, of the correctness of the translation of the different documents, which appear at the end of each individual American document. The fact is that my friend, Mr. Dodd, and I were very anxious that it should be before the Tribunal, and we should be only too delighted to give to the Tribunal any further information which it desires.
THE PRESIDENT: Does what Major Coogan did apply to all the other series of documents put in?
SIR DAVID MAXWELL-FYFE: It applies to PS and later to the letters RC and EC.
THE PRESIDENT: What about the L?
SIR DAVID MAXWELL-FYFE: What about L? I think it is L.
THE PRESIDENT:EC applies to that also?
SIR DAVID MAXWELL-FYFE: RC and EC.
THE PRESIDENT: Does the certificate then cover this particular sheet of paper, which is marked 5-C-2-PS, and has it no other identifying mark?
SIR DAVID MAXWELL-FYFE: Yes. The affidavit proves that that was a document captured from that series. I have not troubled the Tribunal with reading it, because on the whole we submit that it is now admissible as just an admission; of course, the matter of weight may vary.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL-FYFE: I don't want the Tribunal to be under a misapprehension that every document was certified individually, but what is certified is a non-captured document. If a document comes from any of the sources in Article 21, then some one with authority from this Government certifies it as coming from one of these sources and that we do individually. But concerning captured documents, we don't make any individual certification; we depend on Major Coogan's affidavit.
THE PRESIDENT: Yes, but just a moment. Sir David, it is perhaps right to say in reference to this particular document, 532-PS, or the portion of it which has been produced, first of all, that the copy which was put before us didn't contain the marginal note, and that it is, therefore, wrong. We are in agreement with your submission that it has been certified, as you say, by Major Coogan's affidavit, which is admissible; but, of course, that has nothing to do with its weight. That is the point upon which Dr. Exner was addressing us.
SIR DAVID MAXWELL-FYFE: So I appreciate it, Your Honor.
THE PRESIDENT: If a document be complied with, without a question it is admissible; but any document, of which we can take judicial notice, which has not been read for court by government or other prosecutors is not in evidence now because it has not been read by Mr. Dubost.
SIR DAVID MAXWELL-FYFE: Your Honor, with that, of course, I don't desire anything further, *---* is the ruling of the Tribunal. The only part that I did want to stress w*---*t the PS as such is being verified and, of course, subject to reading it *---*t it could be put in.
THE PRESIDENT: Thank you. We quite understand that. French prosecutor and his staff because it's just been pointed out to me that this marginal note got here upon the translation and, therefore, M. Dubost, I tender to you my apology.
M. DUBOST: Mr. President, the Tribunal will certainly remember that this morning document 1553-PS was set aside, which includes in it bills of gas destined for Oranienburg and Auschwitz. I believe that, after the explanation given by Sir David, this document 1553-PS may now be admitted by the Tribunal inasmuch as its verification has been established.
THE PRESIDENT: Was it read, M, Dubost?
M. DUBOST: Yes, Mr. President, I was in the process of reading it this morning at number 27 in the second book of documents, but the Tribunal set it aside because the Tribunal demanded that I furnish an affidavit. The intervention of Sir David is in a sense such an affidavit, and I beg the Tribunal go forgive me in formulating this request of you, but may I ask you to accept the document which was refused this morning?
THE PRESIDENT: M. Dubost, it was a question of gas, wasn't it?
M. DUBOST: That's right.
THE PRESIDENT: There was one bill of lading and then there were a number of other bills of lading which were referred to.
M. DUBOST: And the whole constituted document 1553-PS. This document is included in the series covered by the affidavit, of which Sir David has spoken to you.
THE PRESIDENT: M. Dubost, if you attach importance to it, would it not be possible for you to give us the figures from these other bills of lading? I mean the amount of the gas.
M. DUBOST: Quite willingly, Mr. President.
THE PRESIDENT: Just in order that it may be upon the shorthand notes.
M. DUBOST:
14 February 1944 Gross weight: 882 kilos Net weight:
557 kilos 16 February 1944 Gross weight:
832 kilos Net weight:
555 kilos The first is addressed to Auschwitz and the second to Oranienburg.
13 March 1944 Gross weight: 896 kilos Net weight:
590 kilos to Gross weight:
887 kilos Net weight:
598 kilos Gross weight:
632 kilos Net weight:
555 kilos Gross weight:
832 kilos Net weight:
555 kilos Gross weight:
832 kilos Net weight:
555 kilos Gross weight:
832 kilos Net weight : 555 kilos Gross weight:
832 kilos Net weight : 555 kilos This appears to me to be all in document 1553-PS, and there is added thereto the statement by Echner and also the statement by the chief of the American service who collected these documents.
presentation of the crimes for which we reproached the defendants on the allied prisoners of war who were interned in Germany. Document 735-PS, page 68 of the document book, which we have placed before you some time ago under No. 371-RS, relates important meetings which brought together Kaltenbrunner, Ribbentrop and Goering, in the course of which were decided the dealing with air operations which constituted terroristic acts. It was decided in these meetings that lynching would be the best punishment in regard to all actions directed against civilian populations as to which the German Government attached a terroristic character. On page 68 it involves the proposals of Ribbentrop. We read in one of the three copies of the notes of the meetings that were held that day, in the first paragraph, 11th line:
"Contrary to the proposals of the Minister of Foreign Affairs, who wanted to consider it as such, all terroristic attacks against the civilian population and consequently air attacks against cities were placed in this catagory. The proposals made by Ribbentrop were therefore in excess of what was accepted at the time of this meeting. The three lines which follow deserve the attention of the Tribunal.
Lynch law would be the means of settlement. There was, on the other hand, no question of having a judgment rendered by a tribunal or the turning over of the people to the police. In paragraph B, bottom of the page:
"One had to distinguish from the enemy airmen who were suspected of terroristic acts, and we should prepare for their admission in the airmen's camp at Oberursel, and if there are any suspicions, they should be turned over for special treatment by the SD." of this "special treatment" by the American prosecution. What is involved is purely and simply the extermination of allied airmen who had fallen in the hands of the German Army.
On page 69 the Tribunal may read, under No. 3, the enumeration of the acts which are to be considered as terroristic acts and as justifying lybching procedures.
"(A) Attacks were weapons against the civilian population as well as against isolated individuals or against gathering of civilians.
"(B) Shots against German aviators, jumping in a parachute from their aircraft when brought down.
"(C) Attacks were weapons against passenger trains, public transport; attacks were weapons against hospitals or hospital trains that are visibly equipped were a red cross."
Three lines below:
"If such acts should be established in the course of interrogations, the prisoners will have to be turned over to the SD." This document comes from the Fuehrer's headquarters. It was brought there on the 16th of June 1944, and it bears the number of the assistant chief of staff of the Wehrmacht.
THE PRESIDENT: I think that has all been read, M. Dubost. I think that document was all read before.
M. DUBOST: Mr. President, I had been told that it had not been read.
THE TRIBUNAL: I haven't verified it.
M. DUBOST: We place before the Tribunal Document 629-PS, under No, 372. This document concerns the preceding one that comes from the Fuehrer's Headquarters, dated 15 June 1944, and it reiterates the orders already cited; but it is signed by General Keitel, Marshal Keitel, whereas the preceding one was signed "K" and we could not verify who the author of this initial was: 730-PS, which was placed before you under No. 373, is likewise from the Fuehrer's headquarters, still dated 15 June 1944. It is addressed to the Ministry of Foreign Affairs through Mr. Ambassador Ritter. The Tribunal will find it on page 71 in the document book.
This document reproduces the instructions signed "Keitel" in the preceding document, and it is likewise signed by Keitel. We shall place it under No. 374, Document 733-PS, which concerns the treatment which is to be reserves to airmen falling into the hands of the German Amy. It is a telephone message. The call is from the Adjutant Marshal of the Reich, Captain Breuer.
D. NELTE (Counsel for Keitel): I assume, Mr. Prosecutor, that you have finished with the question of lynching. In the presentation of this case the words "Orders of Keitel" have been used. The prosecutor has not read those documents. I would be obliged if the prosecutor would produce a document which contains an order, which makes an order of the lynching us it has been claimed by the prosecution. The defendants Keitel and Jodl state and claim that such an order has never been given at these conferences concerning which documents have been produced, and that these documents have never become orders because that has been prohibited by other quarters.
THE PRESIDENT: The documents speak for themselves.
M. DUBOST: The Tribunal did not want to have the complete reading of these documents which are signed by Keitel. They are not orders, they are projects. That was emphasized when I submitted them to the Tribunal, but in regard to Keitel, page 80 of our Document Book, you will find dated 30 June 1944, with Keitel's visa, a note for a meeting. The purpose was the treatment of enemy terroristic aviators. Herewith, it has the project for written reply by the Minister of Foreign Affairs to the Reich, to the Chief of the OKW - project which is transmitted to the Operational Staff of the Wehrmacht.
Second, and skipping the sub-paragraph: "The Marshal of the Reich. Approved the definition of the terroristic aviator communicated by the OKW as well as the procedure which is proposed therein. This document will be placed before you under No. 375. I did not put before the Tribunal a regular formal order but I brought three documents which, in my opinion, are equivalent to a formal order because with the visa of Keitel we have this note which is signed by him, which states: "The Marshal of the Reich. The definition of a terroristic airman communicated by the OKW as well as the procedure which is proposed." This document bears the visa of Keitel".
We shall now place under No. 376, a document L-154 which has already been placed before you by our American colleagues under No. USA 335. My colleague has read this text in extense. I will merely refer to three lines. That is the second paragraph under three. "It is not possible to take away from popular anger any aircraft flying low, who might be brought down." This is signed by Albert Hoffmann.
Under Deposit No. 376 we shall place document S-686, on page 82 of our document book. This is about the minutes of an interrogation held on 29 December 1945. This was M. Gruener, who was subordinate to M. Wagner, Gauleiter in the Duchy of Baden. In the last lines of this document, Page 82 of our document, Geuener states: #Wagner gives the order, the formal order, to bring down all prisoners taken from the Allied aviations or air forces who might be captured, and in this connection Gauleiter Wagner explained to us that Allied airmen caused great ravages on German territory;
that he therefore considered that he was acting - that there was involved inhuman warfare, and that under the circumstances any airmen captured should not be considered as prisoners of war and deserved no mercy".
Page 83. It is really 84 at the top of the page, "He stated that Kreisleiters, if the occasion offered it, should not fail themselves to shoot the allied airmen who might be captured. As I have told you, Roehn was already assistant to Wagner but he did not speak. I can make it clear that General Hoffmann, who was the SS Leader of the police for the Southwest Region, was present when the order was given to us by Wagner to bring down allied airmen."
THE PRESIDENT: Where are you reading that?
M. DUBOST: Page 83, second paragraph. This witness, Hugo Gruener, confesses that he participated in the execution of allied airmen.
Going through Rheinweiler, six paragraph: "This took place in October 1944 or November 1944. As I went through Rheinweiler... I noticed that English or American airmen had been fished out of the Rhine River by soldiers. The four airmen were wearing khaki uniforms. They were bareheaded. They were of average height. He did not speak to them because he does not know the English language. The Wehrmacht refused to take them in." That is the third paragraph at the bottom of the page. I am reading: "I have stated to the gendarmes that I had received from Wagner the order to "execute any allied aviator taken prisoner. The gendarmes replied that it was the only thing that could be done. I then decided to execute the four allied prisoners and one of those gendarmes who was present suggested to me as a place of execution the banks of the Rhine."
The next page, page 84, paragraph 1. "Gruener describes the arrangements made by him to assassinate those airmen."
Second paragraph: "He confesses that he killed them with machine gun shots in the back".
"He gives the name of one of his accomplices 'Erich Meissner,' who was a Gestapo agent from Lorrach.