THE PRESIDENT: Do I understand you, Mr. Rapp, you are merely making an objection for the record and merely want to have stricken that statement by Dr. Sauter that it was properly sworn to and there is no objection to the affidavit?
MR. RAPP: That is correct.
THE PRESIDENT: The motion will be sustained. The affidavit will be received in this form, subject to the statement made and for the purposes of the record. You may proceed. In other words, Dr. Sauter, he is making an objection for the record and is not objecting to the document. You may proceed with the examination and the reading of the document.
DR. SAUTER: If the Tribunal please, I must apologize but I am not quite clear on what this objection is to mean. If there is no objection to the document and if the court recognized the fact, which cannot be doubted, that this document has been sworn to properly, then I really don't see what this objection by the prosecution amounts to.
THE PRESIDENT: If is possibly technical and for the purpose of his not acknowledging this type of acknowledgement, but he has no objection to it being received after having made his statement. You may proceed with the reading of the document.
DR. SAUTER: Then I offer as the next exhibit document No. 10.
THE PRESIDENT: Dr. Sauter, had you completed reading all this document. I believe you had completed it all, had you not? Yes, you had concluded it, so you may proceed with the next document.
BY DR. SAUTER:
Q. Yes, I have read it all, Now I shall come to document No. 10, which I offer as exhibit No. 5. This is an affidavit signed by General Franz Halder, former chief of staff of the German Army. It is duly certified by the officer in charge of the American camp, where it was sworn to. This document also deals with the question of how it was that General von Geitner as a reserve officer joined the general staff. I need not read the initial paragraph - it is the affidavit formula and he says in the second paragraph:
"I make the following statement on the basis of my 45 years of acquaintance with the personality of the former general Curt von Geitner. Geitner and I were officers of the Bavarian field artillery of the same year. Together we attended the War College and the Artillery School in Munich. From this common education developed a personal friendship, which in spite of the diversity in our roads of life never permitted the severance of contact between us. My statements are based on the knowledge of his person that I gained through this personal friendship, they are not based on our official relations.
"I know Curt v. Geitner "s a noble, pure character who remained guided by the austere views of honor and duty characteristic of the old German soldier caste, even during the many years after the first world war, during which he pursued a civilian profession. His excellent disposition and vivid temperament, together with an outstanding flair for practical matters, his untiring activity and pleasure in work have brought him recognition and appreciation everywhere. His thoroughness and unusual conscientiousness, which made it impossible for him to treat any thing superficially or lightly, or to evade discomfort, are just as characteristic of him as his frankness and courage with which he stands for his opinion without regard to advantages or disadvantages. Geitner is a man who believes in strict righteousness; selfishness or unhealthy ambition is foreign to him. He is a good--hearted person, who always helped others wherever he could. In the vast circles of his acquaintances I have never heard that he was spoken of in any other way, but in words of high esteem and reverence.
"The military re-employment of Geitner in the past war did not occur upon his wish or request. He accepted the tasks conferred upon him out of his sense of duty towards his fatherland. The shortage of older general staff officers was the reason why against his will he was put to service with the general staff. Von Geitner at that time approached me as the Chief of the General Staff of the Army with the request not to use him in the general staff.
For lack of available personnel this request could not be granted."
Then there is the signature by Colonel General Franz Halder, who was at one time chief of the general staff of the German army.
Witness, now that is how it came about that you found yourself on the general staff in Serbia. Did you in the following period of time become an active officer again or did you remain during the ensuing years a reserve officer?
A. I remained in the reserve.
Q. In other words you are the only reserve office in the dock?
A. Yes.
Q. When you came to Serbia what was your rank?
A. I had just been promoted to Colonel on the general staff.
Q. When was that?
A. I believe on the 1st of July or June of 1942.
Q. 1942?
A. 1942.
Q. When you came to Serbia who was commanding general in Serbia?
A. Paul Bader, general of Artillery.
Q. And how long did you hold the position as chief of the general staff with General Bader?
A. Until the end of August 1943.
Q. Over a year in other words?
A. Yes.
Q. And what did you do in August of 1943?
A. In August of 1943 this staff was sub-divided one part became the general command of the 24th Mountain Corps under General Bader and the other part was transferred to the staff of the newly established Commander in Chief Southeast under General Felber, General of Infantry.
Q. Is that the same General Felber, who was heard here in this trial as a witness?
A. It is.
Q. And where were you after August 1943?
A. I became chief of the general staff with the commander in chief Southeast.
Q. What were the tasks of General Bader and after August 1943 of General Felber in Belgrade?
A. General Bader was the commanding general and military commander Serbia. His first duty was the maintenance of law and order, security in Serbia in what was then described as Serbia, the old Serbia, above all protection of the communications leading down south to Athens over Salonika, the railroads and the communications to the east, to Sofia, and very important the protection of the Danube, a line of communications which was highly important for German oil supplies and graim supplies from Rumania, due to what was known as the "Iron Gate". This was the nucleus of his duties as it were.
Second, until about the middle of November, 1942 General Bader was in charge of what was called the fighting group "western Bosnia' under General Stahl who was fighting the Tito bands in western Bosnia, in the Kossara, on the Unasana-bend, Samaritza in the Ksune mountains.
Third, General Bader was in charge of the administration of Serbia. These were the tasks of General Bader.
THE PRESIDENT: Dr. Sauter, we will take our afternoon recess at this time.
THE MARSHAL: The Court is in recess until 3:15 o'clock.
(A recess was taken.)
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again in session.
BY DR. SAUTER:
Q Witness, you told us just before the recess something concerning the tasks of General Bader. You said that they consisted foremost in the securing of the land and the combatting of the Croatians and, thirdly, in the administration of the country of Serbia. I should now be interested to know how General Felber in August 1943 took over the office which was then created, the office of the Military Commander Southeast. Was there any change with regard to these tasks and if so which ones?
A Yes, to begin with, I would like to add something. General Bader was at that time subordinate to the Commander in Chief Southeast who had previously been Armed Forces Commander Southeast. With the creation of the Military Commander Southeast which was the official designation of General Felber, the following changes occurred. General Felber was the Territorial Commander or the Southeastern area. As Territorial Commander he had the task of:
(a) Dealing with purely military tasks in the Southeast, (b) Dealing with the administration or, rather, the supervision of the administration in Serbia, in Greece and in Montenegro and, at the same time, the Plenipotentiary Commanding Generals with the Albanian and Croatian government were also subordinate to him.
(c) General Felber in his capacity as Military Commander Serbia, which office he held at the same time as well as holding the office of Military Commander Southeast, was responsible for security, peace and order in Serbia.
His relation of subordination was the following:
A Territorial Commander and as supervisor over the administration he was subordinate immediately to the OKW and in between was the Quartermaster General of the Army. Besides he as Territorial Commander was more or less equal to the Commander in Chief Southeast.
With respect to his commission of the securing of Serbia which coincided with the tasks of General Felber to look after the securing of Serbia, he was also subordinate to the Commander in Chief Southeast who was at that time General Field Marshal von Weichs.
Q Considering these complicated channels of subordination we have heard something from General Foertsch a few days ago. Do you share his opinion in all points concerning these difficult questions or do you have a different opinion concerning one point or the other?
A I agree with General Foertsch to the following extent: regarding the chapter of reprisal measures, I think they came within the circle of the Territorial Commander inasmuch as he was the holder of executive powers and besides he was the judicial authority of the area and this concerning reprisal measures as far as causing them was concerned. However, in my opinion, one cannot deny that the reasons for and the effects of reprisal measures were matters of security or at least could have been matters of security.
Now, shortly before these channels of command had been changed, an order had arrived at the office of the Commander in Chief Southeast according to which reprisal measures were measures of security. That was laid down in writing in Exhibit 306 contained in Document Book XII, page 94. It was only natural that the Military Commander Southeast just as before had certain interests as well as the Commander in Chief had certain interests in the conditions in Serbia. However, there is also a service regulation of the Military Commander Southeast. This service regulation of the Military Commander Southeast has so far not been submitted by the prosecution but we can find it in the original of the document, I believe it is 1471, NOKW-1471. It is Exhibit 423 and it is contained in Document Book 17 on page 89.
Q That's on page 123 of the English Document Book and on page 89 of the German text - and 123 of the English text.
A This service regulation of the Military Commander Southeast is not contained in the document of the prosecution which I have just described but it is contained in the original document and in the photostat of the original document.
It says in this document that the Military Commander Southeast is to receive directives from the Commander in Chief Southeast concerning all matters. If I remember correctly, it says: "In all matters closely connected with tasks of combat and security". This service regulation is dated the 7th of October and was issued by the OKW.
Q Witness, this regulation to which the witness is referring here and which is contained, in Document NOKW-1471 -- I repeat NOKW-1471 reads literally under figure "8":
"The Military Commander receives instructions apart from the General Staff of the Army - the Quartermaster General, according to figure "Ia", also from the Commander in Chief Southeast in matters which are closely connected with combat and security measures."
I believe that is the provision, witness, which you are referring to.
A Yes, it is.
DR. SAUTER: This is NOKW-1471, Exhibit 423, and we find it in Document Book XVII on page 123 of the English text but, may it please the Tribunal, I would like to make the following remark concerning this: this part of the Document NOKW-1471 is not contained in the document book of the Prosecution and in my document book Geitner No. IV. I shall have to reproduce this part of the Document 1471 and submit it as a document. This is then the service regulation for tie Military Commander Southeast; that is for the agency where the defendant worked as Chief of Staff.
Q Now, witness, maybe you can continue.
A Now, we have the provision of the Commander in Chief Southeast which also refers to this problem. It refers to the channels of command in the Southeast Area. It says there that the Commander in Chief Southeast is responsible for the security in the country itself and for the combatting of sabotage acts.
It is, therefore, not surprising that the Military Commander Southeast was of the opinion that the Commander in Chief Southeast was considerably interested in the measures which he, for instance, would take for the combatting of sabotage acts because the very same band which today attacks a certain command may tomorrow attack a railway line and, therefore, the Military Commander Southeast must have been under the impression -- at least, under the personal impression - of being dependent from the Commander in Chief Southeast concerning these matters. I think, to say the least, the responsibilities overlapped here.
DR. SAUTER: May it please the Tribunal, this service regulation to which the witness has now referred, the one from the Commander in Chief Southeast for the Military Commander Southeast, is the service regulation of the 30th of October 1943 - that is, of October 1943. It is Document NOKW-1010. It is Exhibit 351 and is contained in Prosecution Document Book XIV on page 75 of the German text and on page 89 of the English text and the passage to which the defendant referred just now is obviously figure "4" of this document which reads, and I quote:
"Commander in Chief Southeast: As the Commander in Chief over the Southeastern area bears also the responsibility for the security within the country itself as for the combatting of the bands and the countering of sabotage acts " -- that is the end of the quotation.
Q Witness, is that the passage which you had in mind?
A Yes.
Q Is there any connection between this regulation and the question to whom you had to deliver your daily reports?
A Yes, we had to give our daily reports to the Commander in Chief Southeast. As far as I know, that was done in the original and for information a copy was passed on to the OKW Operational Department "Q" and to the German Quartermaster of the OKH.
Q Now, witness, up until now you have described the task of your Commander, your commanding officer. What were your own tasks concerning your work with your commander?
A I had the official position of Chief of General Staff and in the regulation it actually read, "Chief of the Command Staff." I was the Chief of that Staff which had to deal with the operations, supplies, training, organization of the troops.
Q That was the so-called General Staff or, as you put it, the Command Staff.
A Yes, the Command Staff.
Q In your agency - I mean the Commander of Serbia - were there anyother departments or staffs?
A There was one administrative staff which dealt with matters of administration of Serbia. The Chief of this administrative staff was at first State Counsellor, Dr. Thurner, and later the War Administrative Chief Boenner.
Q Boenner? Maybe you would like to spell it.
A B o e n n e r, Boenner.
Q He was in the Administrative Staff?
A Yes, the Administrative Staff.
Q And what other staffs were there with your agency?
A Then my agency also had a Plenipotentiary for the Economy.
Q And who was that?
A That was the NSFK Gruppenfuehrer or Obergruppenfuehrer Neuhausen. This Plenipotentiary for the Economy was subordinate to time Commanding General and Commander. Only concerning his own person. He received his directives concerning the direction of Economy from the 4-Year-Plan.
Q You have told us that you headed the General Staff and it was the task of this staff to deal with operations, training, supplies and organization of the troops. Now, what tasks did the Administrative Staff have?
A The Administrative Staff was to deal as a kind of supervisory administration for the Serbian administration, i.e. the administration of the country.
Q What did you have to do with the Administrative Staff?
A The Administrative Staff was not subordinate to me. It was subordinate to the Commander directly.
Q What units were at your disposal or, rather, of your Commander at the time for security in the country?
A I would like to say this immediately. I am just mentioning it briefly for the total period. Originally, when I got there there were the following units committed. In Serbia there were two German divisions, the 704th and the 717th Division. These were divisions consisting of older men. They were poorly trained regarding their equipment and regarding the means of supply at their disposal; for mountain warfare they were not suitable. Small parts of these two divisions had been stationed in Croatia temporarily. Besides, there was in Serbia the Bulgarian occupation corps which at that time contained three relatively good Bulgarian Divisions.
Finally, there was also xis German rifle battalions of which, according to my memory, three or four were used for the protection of the railroad lines and to be distributed to administrative subarea headquarters. Then there were native forces, the Russian Protective Corps, three weak regiments consisting of Russian immigrants. They were old men but willing to serve and then there was about to develop the Serbian Volunteer Corps. I shall not say anything about the Serbian State Guard. That belongs to the police.
Then there was in Croatia the combat group West Bosnia with the 714th and 713th Divisions under General Stahl. Parts of the 704th and 717th Divisions were there also. If one wants to calculate the strength, if I remember it correctly by heart, around October 1942 one arrives at a figure of about 48 Battalions in Serbia without the native forces which I did not calculate. Of these 48 Battalions there were 56% German, may be 46% Bulgarians.
A. In the meantime another division had been inserted, and that was the SS Division Prinz Eugen. This division had been recruited in the Banat, and around the first of October it took over the securing of the Western part of Serbia. During the course of time this picture changed considerably. A year later there were, instead of 48 battalions, according to my memory, only 36 battalions. Amongst those 22% were German and 78% were bad Bulgarian troops. The original active Bulgarian divisions had been replaced by divisions of another wave, and every six months officers and men were interchanged, and these officers and men were employment from their civilian occupation. Worst of all was around January, 1944. At this time we had only 34 battalions, and of those 18% were Germans and 82% were bad Bulgarian units. These German battalions were Infantry men, and there was one police regiment which was subordinate to the Higher SS and Police Leader.
Q. Witness, you just previously mentioned the administrative sub-area headquarters. What kind of authorities were these? Just a minute please. And in what relation were they to your own agency and to your person?
A. The administrative sub-area headquarters and district headquarters were the German territorial authorities in the country. There was one administrative sub-area headquarters in Belgrade and a district headquarters in Pozarevac, which was subordinate to it, if I may say this, and then there was one administrative sub-area headquarters in Sabac and a district headquarters in Valjevo which was subordinate to it. And then there was one administrative sub-area headquarters in Vanacka-Banja, which was later called Cacak. I will spell it: V-A-N-A-C-K-A, Vanacka-Banja,; C-A-C-A-K, Cacak. These had district headquarters in Uzice and in Kosovska-Mitrovica, in Krusevac, and in Kragujevac.
Q. Witness, what were the tasks of these headquarters? I mean in relation to the Military Commander?
A. They were the territorial administrative authorities. They were a kind of sub-division of the total administration. As such they had comparatively few military tasks.
The focal point of their work was on the administrative side. For this purpose they had a socalled administrative group attached to them with administrative officials.
Q. Witness, were these headquarters, the ones which you have enumerated here subordinate to the Military Commander?
A. Yes, they were.
Q. Did they belong to the group of which you were in charge, as Chief, or were they within the sphere of authority of the administrative staff?
A. They were both. Concerning their military and territorial tasks they were dealt with at the command staff; concerning their administrative staff these matters were dealt with at the administrative staff.
Q. You have just previously told us something about the Higher SS and Police Leader, at least you mentioned it. As Chief of Staff did you have anything to do with him? Was he subordinate to you in any way or what was the relation of the Higher SS and Police Leader? Please always make a pause, Herr von Geitner.
A. The Higher SS and Police Loader was subordinate to the Commanding General and Commander immediately, and that concerning only his person. He received his directives and instructions concerning the police security measures for Serbia from the Reich Fuehrer SS directly. And he and his police troops had only to be subordinate to the Military Commander if an open insurrection had to be fought down. I remember this service regulation fairly precisely.
Q. Did this Higher SS and Police Leader have the obligation to inform the Commander for Serbia, that is, your agency, about the directives which he received directly from the Reich Fuehrer SS Himmler?
A. I don't know any more the exact working concerning this regulation. I only know that something was contained in the Service Regu lation about this matter, but in actual fact he did neither inform the Military Commander concerning his directives which he received from Higher Quarters, nor concerning the reports which he, in turn, sent to Higher Headquarters.
Quite soon I realized that this man, beyond that, also spied on our agency. He gave his personal opinion and judgment on personalities and measures taken by this agency. And he complained. Subordinate to him were the supervision over the Serbian police and the Serbian State Guard. He did not only supervise the Serbian State Guard but also the Serbian police administration.
Q. And you, as Chief of Staff, what did you have to do with the Higher SS and Police Leader in Belgrade?
A. He was not subordinate to me. I had, therefore, nothing to with him unless there were some matters which we had to deal with together.
Q. Was there then yet another plenipotentiary in Belgrade by any chance, a man who made the work of the Military Commander even more difficult?
A. Yes, there was the plenipotentiary of the Foreign Office pre in Belgrade. That was the envoy Benzler. He was to be informed by the Military Commander of all measures which might have been of a political significance and importance. I expressly put it this way. Political significance, not only foreign political significance, and I especially put it this way, which might have had this significance during war-time.
That was a lot actually regarding the administration.
Q. How, then, did these works next to each other get along? I mean this work of various agencies and various plenipotentiaries in the administrative spheres. How did they got along, especially concerning your own activity?
A. This parallel work, as we put it, this multiple work had a disastrous effect. What can an administration be which has no influence whatsoever on economy? What can an administration be which has no in fluence on police matters?
It is only a torso. Not even in National Socialist Germany where, after all, according to my knowledge, Himmler was Minister of Interior, or even before Himmler became Minister of the Interior, in this Germany there was in the lower and middle administrative authorities the police and the administration combined in one hand. The Landrat was at the same time in charge of the administration and of police matters. And the same applied to the district president in Serbia; however, in this difficult country with this difficult population there existed beside the administrative organization a parallel police administrative organization, so that in the office of an administrative sub-area headquarters for instance, there would be the sub-area headquarters commander with his administrative group. Then, the police district headquarters and the Serbian district commander would also be there. They all existed next to each other. The separation of authorities between police and actual administration had been handled according to the service schedule of the Reich Ministry of the Interior and was to be carried out according to this schedule. However, this regulation was so flexible that not very much could be done with it. I'll just give you one example: The registration of inhabitants and the supervision of the inhabitants belonged to the scope of the police work. Next to it there was at the office of the same district commander. And this deputy also interfered in all matters going on in the district. One can therefore, imagine or rather I'd like to add something: A similar state existed at the office of the district headquarters where there was also a police district leader, a representative of the economy, and a Serbian district chief. These agencies always came into conflict with each other. I'll just give you one strong examply: The Military Commander whose task it was to provide peace and order in Serbia, was particularly interested in supplying for the Serbian population with food as smoothly as possible, in order to keep the population pacified. The Plenipotentiary for Economy, who was subordi nate to the Four-year Plan, did not even deem it necessary to inform the Military Commander of what turn-over in food and grain the Fouryear Plan demanded.
Only on request, and much too late, was the Military Commander informed. I was concerned with this matter, and I realized that it could not be handled this way. I can assure you that during the first weeks and months of my activity I don't believe I exaggerate if I say that 75% of my whole work was concerned with coordinating those various elements, in order to create the basis for peace and order in the country. My Military Commander had already, for six months, tried to cope with the situation. And now I made the attempt, but I did not succeed.
Q. Witness, the Prosecution charges you with somehow having participated in reprisal measures, in arrests of hostages, in shootings of hostages, and in similar actions. Who was responsible in Serbia for such matters? Who was the responsible person?
A. When, in July, 1942, I arrived in Serbia I was informed by General Bader amongst other things of the fact that, in accordance with an order which was issued by the OKW, 50 Serbians were to be shot to death for every killed German soldier; for every wounded German soldier 25 were to be shot to death, and apart from that a certain number was to be shot in case of sabotage acts and surprise attacks.
Q. What did General Bader tell you? Who was to issue this order?
A. He immediately told me that he, on the basis of his experience, had ordered the following arrangement. The decision was to be made and the order was to be issued only and solely by him. He added that he had done this in order to relieve the units, as well as the district commanders, of the responsibility for these measures.
Q. May it please the Tribunal, in this connection I would like to submit as Exhibit No. 6, Document No. 15, in Document Book Geitner No. I. This is Document No. 15, Exhibit No. 6, and we find it on Page 49. This is an affidavit by Dr. Wenzel von Kohoutek. He was an agricultural economist, a German National. I am only reading under Roman numeral II, the Arabic numerals 1 through 4, and the reading of the rest of the document I reserve for another context. It says under Roman numeral II:
"The following statements refer to my position as intelligence officer on the staff of the Military Commander for Serbia from 15 April 1941 to 30 Sep 1943 and then as liaison officer at the German embassy in Belgrade from 1 Oct 1943 to 31 Dec 1944.:
1.) I know Herr v. Geitner very well, since I often received instructions and orders from him in the course of my official employment and likewise made verbal reports to him.
2.) I have always known Herr v. GEITNER as a warm-hearted man of humane sentiments. As a superior, he always required strict obedience and performance of duty, and he himself set a perfect example in this respect in ever way. He always maintained his position as Chief of the General Staff, without, however, laying claim to any special powers which exceeded the scope of his official position. "The commander was, and always remained, General of Artillery BADER", As General v. GEITNER repeatedly emphasized.
3.) I know that the Military Commander for Serbia, General of Artillery BADER, reserved orders for the arrest of hostages, for the shooting of prisoners taken in reprisal and for other retaliatory measures exclusively to himself end that nobody else had any influence on his decisions. From many conversations which I had the opportunity to hold with Herr v. GEITNER I gather that he was not in agreement with the measures regarding retaliation ordered from supreme quarters and that he suffered in his mind from the impossibility of altering these.
4.) Herr v. GEITNER rejected in particular the methods and train of thought of the SD (SD is the abbreviation for Security Service). His position as Chief of the General Staff, however, did not give him the opportunity and authority to stop these measures."
That is half as far as I want to read this document from 1 to 4. The document has been sworn to properly and has been sworn to properly.
MR. RAPP: Your Honors, this particular affidavit raises only one point and that is that the affiant lives in Nurnberg. Now, I don't know whether or not at a later time we will call this particular individual for cross-examination or not. However, I feel that if the defense is of the opinion that this particular affidavit is of enough importance to submit it in evidence, the affiant being available in Nurnberg, the witness then in person is better evidence than his affidavit. I just wondered how the Tribunal feels, if Dr. Sauter had produced this witness rather than his affidavit without additional delay and without inconveniencing anybody.
THE PRESIDENT: Is there any ruling in connection with these trials that bears upon your comment?
MR. RAPP: Yes, there is, Your Honor. In the other courts it has been so ruled in a number of Tribunals.
THE PRESIDENT: Is there anything in the general rules that set up these courts that bears upon this?
MR. RAPP: The rule I am at present following is the rule of best evidence, being the person rather than his affidavit, and procedures have been established and of which I would like the Tribunal to take judicial notice, in other courts, including the INT, where when witnesses are available, that is right in town, and at liberty, they should be produced in lieu of their affidavit.
DR. SAUTER: May I add something to that?
THE PRESIDENT: Yes, Dr. Sauter. I would like to have your explanation as to why the witness was not called.
DR. SAUTER: I have worked here in Nurnberg in the Courthouse for two years, and am somewhat versed in this sphere. We have always assumed that the person who submits the evidence, either the defense counsel or the Prosecution, should have the liberty to decide whether he wants to submit an affidavit or whether he wants to call the witness to the witness stand. The allegation of the prosecution that a practice to the contrary exists is not correct.
In the various trials which have been conducted here in Nurnberg we quite frequently experienced that the Prosecution brought affidavits of important witnesses who sat next door in jail, and if the defense then demanded to have the witnesses produced on the witness stand then we were told by the Tribunal and by the Prosecution always and at all times the defense can do that. It can demand to have the witness called on the stand, but that does not change the admissibility of the affidavit.
In numerous cases the prosecution referred to this procedure, and whatever right the prosecution demands for itself should also be available to the defense. If the prosecution therefore wishes to call this witness who lives in Nurnberg to the stand then he can be produced for cross-examination, but still the affidavit is admissible. Just as we had on the other hand agreed to the fact that the Prosecution submit affidavits of witnesses who sat next door in jail.
MR. RAPP: The reply of Dr. Sauter is a little general in nature. I admit at the very beginning of the INT proceedings, and I am also here as long as Dr. Sauter, if I may mention that parenthetically, the prosecution tried to submit a number of affidavits of witnesses who when signing the affidavits were here and who later were transferred, and returned and were gone again. Those affidavits were not at that time admitted and it was ruled that the witness must be produced in person. There was no clear cut decision on this particular basis. However, unless we are going in a retrograde movement and revert back two years ago, I say that in all following trials, in the Pohl case, in the Justice Case, and in other cases, if they form a basis for this ruling, if a witness was in jail the prosecution has produced that witness and it has not submitted an affidavit in lieu of this witness.
THE PRESIDENT: Let me interrupt, and shorten this a little bit. I think the liberality of these rules has been good for the general purpose of getting to the truth and to the facts, but we still must be conscious of certain fundamental rules of evidence, and one of them is we should produce the best evidence where it is possible.