DR. GAWLIK: (Counsel for General Dehner.) For the record, I would like to state that under the date 10 September, 1943, - I am sorry, under the 11th September 1943, page 10 of the original, page 4 of the German, under the XV Mountain Army, the SS division Prinz Eugen is entered. It states: "XV Mountain Corps, the SS Division Prinz Eugen occupied Ragusa on the afternoon of 11 September." Further under 10 September, 1943, page 7 of the original, it states: "XV Mountain Army, SS Division Prinz Eugen." This statement I make for this reason, because in the legal brief the Prosecution asserted that the SS Division Prinz Eugen was subordinate to the 69th Reserve Corps.
DR. FRITSCH: In connection with the document which has just been submitted, Exhibit 655, I would like to make a motion. I would ask that I be allowed, with regard to the presentation by the Prosecution, to bring re-rebuttal evidence through another examination of the defendant in the witness stand.
MR. RAPP: Your Honor, we object to this procedure. The defendants have rested their case. The defendant Rendulic had time to rebut or to make his own statements when he was on the stand, we could go on forever.
THE PRESIDENT: I think we have been very liberal, we have endeavored to be, in connection with the presentation of the defendant's case and evidence. There necessarily must be some time and some period where we commence to be a little more strict in our limitations, and inasmuch as this particular document was the matter of discussion and was a matter of presentation in the defendant's case in chief, the objection will be over-ruled and the request denied.
DR. FRITSCH: Your Honor, do I understand the Tribunal correctly, i.e., that in as far as this document contains new presentation of evidence by the Prosecution and I think I have discovered this by just glancing through it, then insofar as this is the case, can I then call the defendant to the witness-stand?
THE PRESIDENT: The objection is over-ruled in its entirety - the entire document I understand was there for your examination at the time of the presentation of your case. The Court will give consideration to such matters as it deems is proper rebuttal evidence.
DR. FRITSCH: Excuse me, your Honor, I would just like to say something else, - one comment. In the presentation of the case this document was not available during the direct examination. This is a document which came from Washington.
MR. RAPP: Your Honor, if that would be the fact, then I don't see how Dr. Fritsch could have already put part of this document in his document book, which he already said he had done, and he was trying to admonish me with the fact that I went ahead and put it in again.
DR. FRITSCH: Your Honor, I think Mr. Rapp is mistaken. It was like this: during the examination of the defendant in the witness stand, these documents were not available, therefore it was impossible at that moment to take this document into consideration. This document was in the chest which came from Washington, and as soon as I saw it there I presented it, but that was after I had examined the defendant.
MR. RAPP: Your Honor, does the defendant Rendulic need documents to talk about facts which he recollect? Such matters as to whether duress was used? I don't believe that is necessary.
THE PRESIDENT: The Tribunal will give consideration to the matters which it feel are of rebuttal in nature here, and will not give undue weight to those matters which may appear to have been brought in here at a later time if those are the facts; but as I stated a moment ago, we necessarily must limit the rebutts and the sur-rebuttal if any. The previous ruling will be adhered to.
You may proceed.
MR. FULKERSON: I will first take up documents which have to do with the Strassbourg incident, the incident about which Dr. Laternser has already introduced the affidavits of General Eisenhower and the other generals. He read them, if you will remember, only in part into the record.
They are found in List document book No. 8, which I believe was never translated into German as far as I know, and they were introduced into evidence as Lanz Exhibit 141 through 145 inclusive. Now, I would like to introduce as the Prosecution's Exhibit 656, document NOKW 2656, but before I actually introduce it, I would like to make a few remarks. You can see even from a distance it is a pretty bulky affair, what it is, is this: it is the entire file from the Adjutant General's Records Division from the Headquarters of the VI Army Group, concerning this incident about the proclamation at Strassbourg. Nov, it may be that the Defense will be interested in some of the material that is in here, but in order to be perfectly fair, since we had the whole file here I am introducing it all for what it is worth, but I shall simply read a few extracts from it.
DR. LATERNSER: Your Honor, - excuse me, might I get to the rostrum? since the Tribunal has just announced the ruling that re-rebuttal evidence is not possible, we must adhere correctly to the rebuttal regulations. This means therefore that the prosecution can merely submit evidence in rebuttal which refutes a new fact brought forward by the defense. The declarations which came in from the American Generals I have submitted in full. What is then to be refuted? The Prosecution wants to submit and supplement new evidence. This is something which they should have done in the main case. This evidence does not concern at all any assertions by the defense, but it only is a repetition of something which has already been submitted. Since the Tribunal has made the ruling that rerebuttal evidence will probably not be allowed, then we must adhere exactly to the rebuttal regulations. Therefore, The Tribunal will not be able to accept the document, which the Prosecution is now submitting as rebuttal evidence.
MR. FULKERSON: The Defense has alleged here that the Allied armies have been guilty of various reprehensible actions and one of the actions that they have cited is the Strassbourg incident. I assume that they had some purpose in doing that and I do think that the document, which I am now offering and which Dr. Laternser has not looked at, so I therefore think that his comments about it should be discounted somewhat - since it is composed of the actual documents that passed back and forth between the various authorities involved at the time, would be of a great deal of assistance to the Court in clearing up what this incident was about and what happened there.
To that extent I think that it certainly falls within the proper scope of rebuttal evidence.
DR. LATERNSER: Your Honor, I don't think the Prosecution understood me. I have always asserted and proved that according to the regulations, also the American Rules of Wars, hostages can be shot as reprisals, and the Prosecution must present counter evidence or to this. For instance, since I said this regulation was issued in 1940, if they can present a regulation dated 1941 rescinding this regulation, that would be re-rebuttal evidence, but not what they are now trying to do. They are just trying to supplement their own evidence. I think the rebuttal regulations should be strictly adhered to.
THE PRESIDENT: Testimony of this character was admitted as I remember as the question as to whether or not International law was settled as to the bearing upon matter of reprisals and hostages; as bearing upon that question and as perhaps indicating, without deciding, the attitude of the American Military, it will be admitted, pending upon the question and the matter in which the other matters were presented.
MR. FULKERSON: I'd first like to read an extract from the affidavit of General Robert M. Young. It never was translated into German. The part I am reading is from the List document book, not from the document. It's page 10 in List document book No. 8. I will read slowly, because I don't believe this was ever translated into German.
General Young says that:
"Late in November 1944 the Second French Armored Division (General Leclerc commanding), part of the Fifteen Corps, broke through the Vosges Mountains at the Savernne Gap and advanced rapidly into Strasbourg. The Third Infantry Division (U.S.) (Major General John W. O'Daniel commanding), part of the Sixth Corps broke through the Vosges on the Axis St. Die, Saales, Schirmeck, Mutzig, and relieved the Second French Armored Division of the occupation of Strasbourg about 26 November 1944.
Upon the arrival of the US troops in Strasbourg it was reported that the French Commander, General Leclerc, had issued several orders for the government of that city. I did not see such orders nor do I have official knowledge of them except as referred to in the following letter from Major General Barr.
On or about 5 December 1944, Major General John W. O'Daniel left the Third Division to return to the United States. The undersigned assumed command."
I read that simply to show the sequence here, that apparently this order, which can be found in List document book on page 1 and which is dated November 25, was in force one day at the most before the American troops entered the city.
Now, I would like to read from General Eisenhower's affidavit beginning at the last paragraph of page 1.
THE INTERPRETER: Is that on page 1 of the document book?
MR. FULKERSON: I am sorry on page 4 of the List document book:
"On 1 December, 1944, General Devers, Commanding General Sixth Army Group, by letters to the Commanding Generals Seventh and First French Armies, expressed disapproval of this order and stated that future orders would conform strictly to the principle of International Law."
and then the last paragraph from the affidavit:
"To the best of my knowledge and belief no other allied orders concerning reprisals which were similar in content to that of General Le Clere were issued."
And, now I would like to read from page 19 of document 2656. This is a letter from the Headquarters Sixth Army Group, that is from General Devers Headquarters, to the Commanding General, Seventh Army, who I believe at the time was General Patch. It is dated 1 December, 1944, that is either five or six days after this order was issued.
"Your attention is invited to the attached translated copy of a memorandum or notice issued by the Commanding General, 2nd Armored Division.."
The Court will remember that that was General Le Clere..
"... on 24 November 1944 on the occasion of the occupation of the city of Strasbourg.
It will be noted that the provisions of the cited memorandum are completely at variance with the provisions of international law which provide that hostages are entitled to the privileges of prisoners of war and which prohibit summary executions of persons in the power of the occupant in any event.
It is realized that the notice in question was issued without prior knowledge on your part. However, it is desired that immediate steps be taken to inform all commanders of elements of the Seventh Army that the operations of forces comprising the Sixth Army Group will be conducted in accordance with the established rules of international law, and that no proclamations or notices at variance therewith will be published by such commanders."
I would also like to call the Court's attention to the fact that a copy of this letter was sent to the First French Army as is shown at the top of the following pages of the document.
Now I would like to turn to page 14 of the same document which is an interrogation submitted, or rather answers to questions submitted by General Allen to Lt. Colonel LeVien, and I would only like to read the first paragraph, the first question and answer:
"Q. Has the proclamation been canceled by anyone in authority?
A. The proclamation was never put into effect. Whatever effect it had or might have had, was lost when the division moved out of Strasbourg, day or two after proclamation was issued."
Next, I would like to read from page 8 which is a letter dated December 6, 1944 from the Commanding General of the Seventh army to the Commanding General of the Sixth Army Group. -
The difficulty, if your Honors please, is that in translating it they did not put the page numbers in German, naturally, on this, since this is the original document. -
"The following message from the Commanding General 3rd Infantry Division.." -
And if your Honors please, you will recall that that was General Young, who made the first affidavit from which I read at this time, because he had already relieved General O'Daniel -
".. is paraphrased for your information.
"The appointment of French Civilian administrators for the Administration of the city of Strasbourg was included in the regulations issued by General Leclerc. Curfew hours, control of circulation outside of the city and assembly within the city, the bearing of arms, and a system for enlisting a police force for the city were also prescribed in those regulations. These regulations were necessary for the proper control of the civilian population of the city and for the proper military defense. They were therefore kept in force by the CG 3rd Inf.
Div. Penalties for the infraction of these regulations, such as shooting of hostages were not subscribed to and will not be in forced. There has always existed a definite understanding between the CG VI Corps and the CG 3rd Inf Div that penalties prescribed by the former French Commander were at not time considered valid after assumption of command by US troops. Regulations from Headquarters Seventh Army have at all times conformed to the provisions of the Geneva Convention."
And then I would simply like to call your attention to page 26 of the document. I won't impose on your patience by reading this, but it is the proclamation which was published in the French newspaper at Strasbourg, "L' Alsace Liberce" on December 12, 1944. I think that that sufficiently disposes of the Strasbourg incident.
DR. LATERNSER: Your Honor, might I ask that proceedings be stopped for a moment, because I am just looking through this document and perhaps afterwards I might have to read something from it into the record.
MR. FULKERSON: If your Honor please, I could go ahead and submit my next document and if Dr. Laternser wants to make some comments about this one afterwards, it is perfectly all right with me, meanwhile we can be getting along.
THE PRESIDENT: I was just about to suggest that we proceed with some other matter and perhaps between now and the conclusion of our afternoon recess, Dr. Laternser will have had full opportunity to read it and at that time he can make his further comments. That reservation will be granted to you, Dr. Laternser.
MR. FULKERSON: The next document we would like to submit is NOKW 2792, which will be prosecution exhibit 657, I believe. This has to do with the Stuttgart incident. The Court will recall that a witness testified here that in June, July or August, I think, he has no more specific than that, of 1945, a poster, or perhaps several posters, had been put up in Stuttgart, which bore the signature of General Lattre de Tassigny, and which threatened the shooting of hostages for hostile demonstrations against French troops.
DR. SAUTER (Counsel for the defendants Lanz and Geitner): Your Honor, through the submission of two affidavits, I have shown the Tribunal that at a certain time in the year 1945 certain posters were also posted in Stuttgart. The Prosecution has had at all times the possibility of cross examining the witnesses whose affidavits I brought here. The Prosecution did not do this ; instead in rebuttal it brings an affidavit of a lawyer, Karl Maier, who is the holder of the license of a newspaper in Stuttgart.
If one reads this affidavit by Mr. Maier, one can see that he merely talks about a conviction, according to his conviction such posters were not posted ; but he can't actually say this with certainty. He only talks about his convictions and he mentions that he did not see such posters.
I think that a throadbare document of this kind, as this affidavit by Franz Karl Maier, cannot he admitted in evidence at all. On the other hand, we produced affidavits by witnesses who themselves saw the posters. One cannot disprove the evidence of something that has been seen with evidence of something which has not been seen and, therefore, I would ask that this evidence be not admitted.
THE PRESIDENT: The Tribunal will evaluate the character of the affidavit, the nature of the statements made, the words used, and give it such probative value as it deems that it merits.
MR. FULKERSON: I begin with the second paragraph:
"I entered the Stuttgart Prefecture of Police" -- by the way, is my voice grating on your Honors?
THE PRESIDENT: You might modulate it a little, please. By that I do not comment on your last statement, that that is to be taken as joining in your last statement.
MR. FULKERSON: "I entered the Stuttgart Prefecture of Police on 24 April 1945, three days after the occupation of Stuttgart by the 1st French Army and was active in a leading position as a legal adviser.
Among other things, the bringing about and supervising of all posters belonged to my province of work ; either if such were ordered by the French Military Government, or if it was a question of posters of the German administrative offices.
On 8 July 1945, the territory of Greater Stuttgart was transferred to the Americans by the French. The transfer took place with immediate effect. No French offices which could give any sort of instruction with regard to the city territory of Greater Stuttgart were active in Stuttgart after 8 July 1945. The carrying out and supervising of posters belonged to my field of work under the American Military Government also.
According to my convictions, it is completely impossible that there could have been a single poster put up in Stuttgart in June, July or August 1945, which had threatened hostage shootings in any form, bearing the signature of General Delattre de Tassigny. In the beginning of May, 1945, it was already the basic practice that all posters which the French desired went via the Public security Officer (Officier de la Securite Publique) to the Prefecture of Police, which had to effect the poster. No poster concerning the threatening of shooting of hostages ever went through my hands in the whole period. Since, however, every poster had to be effected by me through the police organs carrying it out, the possibility is practically excluded that such a poster was ever posted.
If, in the time under discussion, a poster of this sort had been put up in the region of Olgastrasse, that is to say in the center of the city and in the immediate vicinity of the Senior French Headquarters, the Prefecture of the Police would certainly have found this out at once. Such a poster would have attracted great attention at that moment and would have had to be reported by the Police offices at once as a poster which was not ordered. I know of no case in which offices of the occupying power could have carried out the posting of posters themselves without involving the police.
After the taking over of the territory of Greater-Stuttgart by the Americans on 8 July 1945 it is completely unthinkable that an order of a French office was posted. To the contrary, French orders had to be rescinded at once after the arrival of the Americans. There was never a working together of American and French offices in Stuttgart.
On this next document that I am going to present, it is a little complicated. I almost feel like saying, "Behold, I show you a mystery," but I would like to ask first that I be allowed to explain to the Court what I am trying to do and I can only do that by showing you the document and then, as I understand it, the only defense counsel involved here is Dr. Tipp -- and if Dr. Tipp has any objections that he at least wait until I finish explaining what I think the document shows and why I think it is proper rebuttal before he makes his objections.
In actual fact, it would have been better if I could have combined two documents into one but, due to the complicated index system in the document room, one document has received one number and that is inviolate and you can no longer take part of that and give it another document number ; so, since part of one of these documents has already been introduced into evidence and labeled, I was forced to make my submission in two parts.
The actual new document is NOKW-2828 which will be Prosecution Exhibit 658 and then I would also like to present pages 4, 4a and 5 of Document NOKW-075, part of which has already been submitted by the Prosecution before. I think that we had better have these distributed before I go on with any further explanation.
Actually, it would be better if we could recess now because this is going to be rather difficult to follow and Dr. Tipp will have a chance in that way to look this over before I begin.
THE PRESIDENT: The Tribunal will be in recess for fifteen-minutes.
THE MARSHAL: The Tribunal will be in recess until fifteen-fifteen.
(A recess was taken.)
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Tribunal is again in session.
MR. FULKERSON: If the Court please, I didn't realize it but Dr. Tipp does not have the German of one of these copies so I will go get the German for him now and, meanwhile, Mr. Fenstermacher will continue with the presentation of some other documents.
THE PRESIDENT: You are referring to this last exhibit?
MR. FULKERSON: Yes, sir. He doesn't have the German of those pages of NOKW -075.
THE PRESIDENT: This has not been read into the record, has it?
MR. FULKERSON: No.
THE PRESIDENT: So any objection or any comment that he might wish to make will be taken up at such later time as -
MR. FULKERSON: Well, what I thought I would do, if your Honors please, is to get the German photostate now and bring it back into Court and he can read that, and meanwhile Mr. Fenstermacher can present some other documents. Then I can come back to this.
MR. FULKERSON: I believe I gave the Exhibit No. 657 for both of these documents. I am introducing the two of them as - 658 I'm sorry, for both 075 and NOKW-2828.
THE PRESIDENT: 2828 has not been distributed to the Tribunal, I don't believe.
MR. FENSTERMACHER: Your Honors will recall that during the defense case of General Foertsch and General Geitner, a good deal of emphasis was placed upon the fact that they were chiefs of staff and performed staff functions and had no command functions. A similar defense, was made during the International Military Trial by Fieldmarshal Keitel and Col. General Jodl. For the convenience of the Tribunal, the Prosecution has excerpted certain portions of the testimony of Fieldmarshal Keitel and Col. General Jodl with respect to this particular point. We will distribute those excerpts now. They will be given in judicial notice of the Tribunal, even if they are not presented in this form. We offer them in this form solely for the convenience of the Tribunal in referring to them.
The excerpts from the testimony of Fieldmarshal Keitel should be given Prosecution Exhibit No. 659. We have not had these typed up in German simply because the entire German transcript of the proceedings of the International Military Tribunal are available to Defense Counsel. Only Dr. Rauschenbach and Dr. Sauter are involved here. I think from citing the dates on which the particular testimony was given they will be able to follow the excerpts which the Prosecution calls to the attention of the Court. The excerpts from the testimony of Col. General Alfred Jodl should be given Prosecution Exhibit No. 660.
DR. SAUTER: Sauter, for the defendant Geitner.
I have considerable doubts as to whether the testimony of any defendant which he may have made in some other case, some other trial would be a suitable rebuttal document. These testimonies are submitted regarding two persons who have been sentenced by the International Military Tribunal, sentenced to death and who have meanwhile been hanged. Those two persons also held a completely different position from that held, for instance, by defendant Geitner. In 1944 Geitner became Brigadier General of the Reserve. He held the lowest rank as a general but Fieldmarshal Keitel was a Fieldmarshal, that is a five-star-general. He had the highest position in the German Wehrmacht and Col. General Jodl being a Colonel General, held the position of Commander-in-Chief of an Army. I don't think that the position of Brigadier General can be compared to the position and rank of those other two and I ask that the Court examine as to whether these testimonies made before the International Military Tribunal really constitute a feasible and fair rebuttal document. I think it is very questionable.
THE PRESIDENT: May I make an inquiry of Mr. Fenstermacher on what theory you are offering this and under what rule?
MR. FENSTERMACHER: This is not offered as evidence Your Honor. It is offered in the nature of argument. As I understand the uniform rules of procedure here, when either party asks the Court to take judicial notice of something, you must present the Court with the actual testimony, previous testimony, or whatever document you are offering.
The last time, I believe, we offered something for the judicial notice of the Tribunal, we were concerned with the provisions of the Armistice agreement between the Italian Army and the Allies in September, 1943. That too, of course was entitled to be judicially noticed by the Tribunal but for the convenience of the Tribunal in following precisely what the Prosecution wanted to call attention to, we served it up. That is all we did here in this case. It is not to be considered as evidence at all.
DR. SAUTER: If it please the Tribunal, I and I think my colleagues also are quite unclear on what a difference there is. Such a document is not submitted so that the judges have something to read; it is being submitted so that something can be established and proven to the Tribunal. Further, whether Mr. Fenstermacher now states "I am submitting it as evidence," or whether he just says "I submit it for the Court to take judicial notice of," that is the same thing. He submits it so that the Court take judicial notice of its contents so that in arriving at its judgment, consideration can be given to these documents. We cannot find that the mere statement of Counsel for the Prosecution that a document which in itself is not admissible makes it admissible, particularly in the rebuttal, which in itself creates a very difficult situation for every defendant because at the moment they are confronted with a series of documents which may be months old and may already have been in the pigeon-holes of the Prosecution for months but are only being introduced now at such a moment as the defendants have no opportunity of defending themselves against these allegations.
We are of the opinion that considering the very grave incrimination caused by the submission of rebuttal documents anyhow and especially by rebuttal documents of that kind, these documents ought to be restricted to the very minimum.
THE PRESIDENT: It seems to me, Mr. Fenstermacher, that this offering of documents even for the judicial notice of the Tribunal has its place in the argument. Judicial notice is to be taken of matters which are so common and so generally accepted that there cannot be any question as to their authenticity or their general correctness and that can hardly be the term which could be applied to these documents.
MR. FENSTERMACHER: Your Honor, I may have the word of art wrong. Am I not correct that the Tribunal is entitled to take judicial notice of the testimony in the entire proceedings of the International Military Tribunal? I believe it is in Ordnance No. 7, Your Honor.
THE PRESIDENT: All right, where is it? Read it. As I see, you take judicial notice of the judgment. I can remember that much of it, the findings of the International Military Tribunal, but as to the whole proceedings, I am somewhat in doubt as to that.
MR. FENSTERMACHER: Well, would your Honor suggest that -
THE PRESIDENT: Unless otherwise advised to the contrary, they will not be received and will not be accepted by the Court even for matters of judicial notice. If they have any place at all, their place is in argument.
MR. FENSTERMACHER: My opinion may be incorrect on these next succeeding documents also. -
THE PRESIDENT: Unless you can prove so convincingly that they should be admitted under that rule, why, we may change our mind, but you present the ruling in proof and in absence of that, the Court will adhere to its former announced ruling.
MR. FENSTERMACHER: Now in assembling the great bulk of material which the Prosecution has offered into evidence, your Honors will recall that we prepared lists showing the chronological order in numerical sequence of all the documents which we have offered. That was simply for the convenience of all parties concerned in keeping the documents straight. We have also prepared cross reference lists of the documents. That is to say, we have chosen and made lists of those documents which relate to particular subjects. We have prepared cross reference tables of the documents and exhibits to Jews and Gypsies, to documents which concern the success of the policies of the German Army in the Southeast, of those documents which relate to forced labor and deportation, the documents which relate to concentration camps and the documents which relate to insignia and partisan units, etc.
We should like to present those for the information of the Tribunal. I believe it will be also very helpful to each of the defense counsel in going through the Prosecution's material by way of subject matter. I think this corresponds somewhat to the lists of documents which certain of the defendants have offered solely for the information of the Tribunal. This is, in other words, simply a rearranging of the documents by way of subject matter. The first cross reference table to the documents relating to Jews and Gypsies should be marked Exhibit 659.
DR. LATERNSER: If it please the Tribunal, that is no evidence and no proof which ought to be admitted now. It is merely a final statement in writing and purely argumentative.
THE PRESIDENT: As we understand it, this particular document is being submitted only for information purposes and is being given an exhibit number not with the thought of its being received in evidence but solely for the information of the Tribunal.
It should also be stated that the Tribunal is not receiving this document or any of the statements that are incorporated therein as proof of the facts there stated.
The proof will come from the documents to which the reference is there made. I think with that in mind, Dr. Laternser, it perhaps will avoid any question in your mind as to how it is being received by the Tribunal.
DR. LATERNSER: Yes, your Honor. If it please the Tribunal, the assertion of the Prosecution that these things should also help us in our work is not true, because they are only in English.
MR. FENSTERMACHER: The document number is set forth, so is the exhibit number, and the document book number, and they can very easily refer to the index in the document book itself.
DR. RAUSCHENBACH: It please the Tribunal, these lists and cross references do not facilitate the work of the defense for yet another reason: namely, virtually they constitute an abbreviated closing brief. That is, they present to the Court the contentions of the prosecution arranged according to the topics of prosecution. If the defense is not to be at a disadvantage, they ought to be allowed to use this same procedure, but considering the time limit set us for handing over our final pleas for translation, that is impossible now.
THE PRESIDENT: I made a suggestion outside the Courtroom, personally to Dr. Laternser, which I take it he in turn passed on to his associates, that they prepare as to their own documents something of this similar nature and similar to that which was originally presented by the Prosecution. So far there has only been one presented by the defense counsel that has come to my desk.
DR. RAUSCHENBACH: That is correct, your Honor, but these tabulations and compilations here do not refer and they do not establish a connection between the documents of Prosecution and those submitted by the Defense. That is the most difficult thing in the matter.
THE PRESIDENT: This has not been received as evidence and the Tribunal will give it such consideration as it deems it merits for information purposes only.
MR. FENSTERMACHER: The next cross reference table is a list of documents referring to the question of the success of the German policy in the Southeast. It should be marked Exhibit 660.
The next lists of those documents which relate to the question of forced labor and deportation to forced labor; it should be marked Exhibit 661.
The next list is of those documents in the Prosecution's case which refer to concentration camps; Exhibit 662 should be given to it.
And the final list relates to documents bearing on the question of insignia in the partisan units. This should be given Exhibit 663.
If your Honors please, I have checked Ordnance No. 7 on the question of judicial notice. Article 9 reads as follows:
"The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. They shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents that the commitees set up in the various Allied countries for the investigation of war crimes and the records and findings of military or other tribunals of any of the United Nations."
I believe your Honors will be entitled to look at this under it being a record of a military or other tribunal of any of the United Nations.
THE PRESIDENT: In the judgment of the Tribunal, the matters of pleadings, the Journal entries, the final judgment and record and decision constitute records; not the evidence. Then besides that these men are not here so that they can be cross-examined.
Mr. FENSTERMACHER: Your Honor please, I am not offering it as evidence, I am simply calling Your Honor's attention that in the course of the transcript of the international military tribunal certain defenses were offered which are by persons occupying positions which are similar to those positions occupied by General Foertsch and General Geitner, and that the defense put in by Keitel and Jodl were similar to those offered by Foertsch and Geitner.
THE PRESIDENT: The court will adhere to its former ruling.
MR. FULKERSON: I would like to ask the Court again to look at the two documents to which I have previously referred, that is NOKW 2828, and these additional excerpts from NOKW 075. Both of these are daily reports from the 15th Mountain Corps and therefore concern the defendant von Leyser.
DR. TIPP: If the Tribunal please, in order to prevent a false impression gaining ground, I want to state that Document 2828, reference to which has just been made as a daily report of the 15th Corps; is a daily report of the Inspector of the Railway Security - Croatia. I can not understand how the Prosecution can contend that in both cases these are daily reports by the 15th Corps if the document be clearly captioned "Daily Report Inspector of Railway Security - Croatia" of 4 November 1943.
MR. FULKERSON: You don't contend, do you, Doctor, that this excerpt from NOKW 075 is not a part of the daily report of the 15th Mountain Corps?
DR. TIPP: No, if it please the Tribunal, and I didn't say so. I merely contested the assertion by the Prosecution that both documents NOKW 075 and NOKW 2828 were a daily report by the 15th Corps. It is correct NOKW 075 contains inter alia a report by the 15th Corps, but NOKW 2828does not contain a daily report by the 15th Corps, but a daily report by the Inspector of Railway Security - Croatia, and that is all I have just been saying.
MR. FULKERSON: Well, -
THE PRESIDENT: I take it there is no objection then.
DR. TIPP: As far as the Prosecution wishes to introduce Document 2828 as being a daily report by the 15th Corps, with the assertion that it was a daily report by the 15th Corps, and thus wishes to incriminate my client, of course, I do object to that, but I may add that the Prosecution has not so far contended, nor had it proved, that the Inspector of Railway Security - Croatia, was ever subordinate to the 15th Corps. General Leyser was never in command of that unit.
THE PRESIDENT: The Tribunal will keep that matter in mind and will give consideration to these statements and be guided only by the proof which has been presented.
MR. FULKERSON: First, a remark about this NOKW 075, the document was submitted in its entirety in German, but only excerpts from it were submitted in English and that is why it is necessary here for us to go back and translate additional parts of the document which is already in evidence. General von Leyser testified that "From my perusal of the documents here, the only case in my Corps Area where human lives were taken as a reprisal measure is the case of the Cossack Division." That is the case in which the twenty-two hostages were hanged on the spot, or something to that effect; that can be found in the English transcript for the 7th of November, page 5232. In the original document which was--.
THE PRESIDENT: The page number again, please?
MR. FULKERSON: 5232, Your Honor. In the original series of excerpt from this document which were translated into English and introduced here as part of the Prosecution's Case in Chief, if you will now turn to page 5 of this additional translation and look under Daily Report of 4 November 1943 --.
DR. TIPP: Your Honor, I object to the further submission of this document. I have just stated that this Document 075 is in part concerned with an entry of a daily report by the 15th Corps, and the Prosecution has just shown me the report of the 6th of November 1943, on page 4. Mr. Fulkerson now proceeds to dwell on the remaining contents of this document and he is attempting to prove by a quotation that General von Leyser's testimony on direct examination had been improper.