Accordingly, we ask the indulgence of the Tribunal if for these reasons we make the presentation of this part of the case as detailed as seems to us necessary in view of the outstanding importance of the subject matter. tion has been stated in the opening address of Mr. Justice Jackson. That address indicated to the Tribunal the general nature and character of the evidence to be offered by the American prosecution in support of the allegations with which I shall deal. However, before approaching the actual presentation of that evidence, it seems to us it would be helpful to an orderly presentation of the case, to address the Tribunal in an introductory way concerning this specific segment of the prosecution's case. In doing so, I shall not attempt to retrace the ground so ably covered by Mr. Justice Jackson. On the contrary, I shall confine my introductory remarks to matters specifically and peculiarly applicable to that part of the American case relating to the crime of illegal warfare, and the common plan or conspiracy to commit that crime. Tribunal on this aspect of the case, and the rule of law which must be controlling in the final judgement of the Tribunal on this part of the case, is stated in Article 6 of the Charter of the International Military Tribunal. Article 6, so far as is pertinent here, reads as follows:
"Article 6. The Tribunal established by the Agreement referred to in "The following acts, or any of them, are crimes coming within the juris '(a) CRIMES AGAINST PEACE:
namely, planning, preparation, initiation or conspiracy for the accomplishment of any of the foregoing;"Subparagraphs (b) and (c) of Article 6 are not pertinent to this aspect of the case.
However, the unnumbered final paragraph of Article 6 is of controlling importance on this aspect of the case.
That paragraph reads as follows:
"Leaders, organizers, instigators and accomplices participating in any persons in execution of such plan."
Charter I have just read: (1) The Charter imposes "individual responsibility" for acts constituting "crimes against peace"; (2) The term "Crimes against peace" embraces planning, preparation, initiation, or waging of illegal war;(3) The term "Crimes against peace" also embraces participation in a common plan or conspiracy to commit illegal war; (4) an illegal war consists of agreements or assurances.
These two kinds of illegal war might not necessari ly be the same.
It will be sufficient for the prosecution to show that the ments or assurances.
On the other hand it would be sufficient for the pro aggression.
We think the evidence in this case will establish conclusively were illegal for both reasons.
The fifth principle which I ask you to bear criminal responsibility of a defendant is imposed by the Charter not merely by reasons of direct, immediate participation in the crime.
It is sufficient for the prosecution to show that a defendant was a leader an organizer, instigator, or accomplice who participated either in the formulation or in the execution of a common plan or conspiracy to commit crimes against peace. In the case of many of the defendants the evidence will show direct and immediate personal participation in the substantive crime itself. In the case of some of the defendants the evidence goes to their participation in the formulation and execution of a common plan or conspiracy. In the case of each defendant we think the evidence will establish full individual responsibility for crimes against peace as defined in the Charter of this Tribunal. In this connection I wish to emphasize that the Charter declares that the responsibility of conspirators extends not only to their own acts but also to all acts performed by any persons in execution of the conspiracy. out to rob a bank in accordance with a criminal scheme to that end, and in the course of carrying out their scheme one of the conspirators commits the crime of murder, all the participants in the planning and execution of the bank robbery are guilty of murder, whether or not they had any other personal participation in the killing. This is a simple rule of law declared in the Charter. All the parties to a common plan or conspiracy are the agents of each other and each is responsible as principal for the acts of all the others as his agents. aspect of the case. Indictment lodged against the defendants on trial which relate to the crimes of illegal war or war of aggression. Particularly I ask the Tribunal to advert to the statements of offenses under Count I and Count 2 of the Indictment in this case. in paragraph III. The offenses there stated so far as pertinent to the present discussion is:
"All the defendants, with divers other persons, during a period of years preceding 8th May 1945 participated as leaders, organizers, instigators or accomplices in the formulation or execution of a common plan of conspiracy to commit, or which involved the commission of, Crimes against Peace, as defined in the Charter of this Tribunal ..... The common plan or conspiracy embraced the commission of Crimes against Peace, in that the defendants planned prepared, initiated and waged wars of aggression, which were also wars in violation of international treaties, agreements or assurances."
..... relevant at this point. It must be obvious that essentially Counts I and 2 interlock in this indictment. The substance of the offense stated under Count 2, paragraph V of the Indictment is this:
"The emphasis in the statement of offenses under Count 1 of the Indictment is on the common plan of consoiracy. The emphasis under Count 2 of the Indictment is on the substantive crimes to which the conspiracy related and which were committed in the course of a nd pursuant to that conspiracy." case as between the chief prosecutor of the four prosecuting governments, primary responsibility for the presentation of the evidence supporting Count 1 has been placed on the American prosecutor, and primary responsibility for the presentation of the evidence supporting Count 2 of the Indictment has been placed on the British prosecutor. a cooperative effort as between the prosecutors to present both counts together, In addition to the statement of offense relating to illegal warfare in paragraph III under Count 1 of the Indictment, Count 1 also contains what amounts to a bill of particulars of that offense. In so far as those particulars relate to illegal warfare, they are contained in paragraph IV (F) of the Indictment which sets out in the English text on pages 7 through the top of page 10 under the general heading "Utilization of Nazi Control for Foreign Aggression." The allegations of this bill of particulars have been read in open court, in the presence of the defendants, and the Tribunal, as well as the defendants, are_certainly familiar with the contents of these allegations. I call attention to them, however, in order to focus attention on the parts of the Indictment which are relevant in consideration of the evidence which I intend to bring before the Tribunal.
would be faulty if I did not invite the Tribunal to consider with me the relationship between history and the evidence in this case. Neither Counsel nor Tribunal can orient themselves to the problem at hand neither counsel nor Tribunal can present or consider the evidence in this case in its proper context - neither can argue or evaluate the staggering implications of the evidence at hand to be presented without reading that history, reading that evidence against the background of recorded history, and by recorded history, I mean the history merely of the last 12 years.
Justice Oliver Wendell Holmes, of the U.S. Supreme Court, found in his judicial experience that "a page of history is worth a volume of logic." My recollection is that he stated it perhaps better, perhaps earlier in the preface as to his book on the common law where he said, I think, "The life of the law has been not logic but experience." I submit, that in the present case, a page of history is worth a hundred tons of evidence. As lawyers and judges we cannot blind ourselves to what we know as men. The history of the past 12 years is a burning, living thing in our immediate memory. The facts of history crowd themselves upon us and demand our attention. of common knowledge need not be proved but may receive the judicial notice of courts without other evidence. The Charter of this Tribunal, drawing on this uniformly recognized principle, declares in Article 21:
"The Tribunal shall not require proof of facts of thereof."
The facts of record history are the prime example of facts of common knowledge which require no proof. No court would require evidence to prove that the Battle of Hastings occurred in the year 1066, or that the Bastille fell on the 14th of July 1789, or that Czar Alexander I fre ed the Serfs in 1863, or that George Washington was the first President of the United states, or that George III was the reigning King of England at that time. fessor of mine used to present a curiosity of the law - that a judge is held to responsibility for no knowledge of the law whatsoever, that a lawyer is held to a reasonable knowledge of the law, and a layman is hold to an absolute knowledge of all the lawyers. It works inversely as to facts, or facts of common knowledge. There, the Judge is imputed to know all of these facts. Howevere, many of them he may have forgotten as an individual man, So one of the purposes of this presentation will be to implement the judicial knowledge, if a hypothesis actually exists. these proceedings into a history book. The evidence which we offer in this case is the evidence which for the moment has been concealed from historians. It will fill in recorded history, but it must be read against the background which common knowledge provides. The evidence in this case is primarily captured documents - these captured documents fill in the inside story underlying the historical record. The evidence which we will offer constitutes an illustrative spot-check on the history of recent times as the world knows it. The evidence to be offered is not a substitute for History.
We hope the Tribunal will find it to be an authentication of history. The evidence which we have drawn from captured documents establishes the validity of the recent history of the past 12 years -- a history of many aggressions by the Nazi conspirators accused in this case. the court to see in those documents definite additions to history the addition of new elements long suspected and now proved. The ele ments which the captured documents on which this particular aspect of the case will add to recorded history are the following: (1) the conspiratorial nature of the planning and preparation which underlay the Nazi aggressions already known to history; (2) the deliberate premeditation which preceded those acts of aggression; (3) the evil motives which led to the crimes; (4) the individual participation of named persons in the Nazi conspiracy for aggression; (5) the deliberate falsification of the pretexts claimed by the Nazi aggressors as they arose for their criminal activities. beyond possible doubt and these ele ments in the context of historical facts we think are all that need be shown. the initiation of the first war of aggression was a very short period. This critical period of lawless preparation and illegal scheming which ultimately set the whole world flame was unbelievably short. It covered 6 years, 1933 to 1939. The speed with which all this was accomplished evidence at once the fanatical intensity of the conspirators and their diabolical efficiency. Crowded into these 6 short years is the making of the greatest tragedy that has over befallen mankind. years of war that followed, demands that we see this period of time divided into rather definite phases, phases that reflect the development and execution of the Nazi master plan.
I suggest that the Tribunal as it receives evidence, fit it into five phases. The first was primarily preparatory, although it did involve over-acts. That phase covers roughly the period from 1933 to 1936. In that period the Nazi conspirators, having acquired government control of Germany by the middle of 1933, turned their attention toward utilization of that control for foreign aggression. Their plan at this stage was to acquire military strength and political bargaining power to be used against other nations. In this they succeeded. The second phases of their aggression was shorter. It is rather interesting to see that as the conspiracy gained strength, it gained speed. During each phase the conspirators succeeded in accomplishing more and more in less and less time until toward the end of the period, the rate of acceleration of their conspiratorial movement was enormous. The second phase of their utilization of control for foreign aggression involved the actual seizure and absorption of Austria and Czechoslovakia in that order. By March the third month of 1939 they had succeeded in this phase. The third phase may be measured in months rather than years from march 1939 to September 1939. The previous aggression being successful having been consumated without the necessity of resorting to actual war, the conspirators had obtained much desired resources and bases and were ready to undertake further aggresssions by means of war, if necessary. By September 1939 war was upon the world. The fourth phase of the aggression consisted of expanding the warinto a central European war of aggression. By April 1941 the war which had thertofore involved Poland, the United kingdom and France, had been expanded by inva sions into Scandinavia and into the low countries and into the Balkans. In the next phase the Nazi conspirators carried the war eastward by invasion of the territory of the Union of Soviet Socialist Republics, and finally, through their Pacific ally, Japan, precipitated the attack on the United States at Pearl Harbor.
While on the phase of the case we shall not rest exclusively on them alone, the essential elements of the crime which I have already pointed out can be made out by a mere handful of captured documents. My order of presentation of these will be first to present one by one this handful of documents, documents which prove the essential elements of the case on aggressive war up to the hilt. These documents will no leave no reasonable doubt concerning the aggressive character of the Nazi war or concerning the conspiratorial premiditation of that war. Some of this group of documents are the specific basis for particular allegations in the Indictment. As I reach these documents, I shall invite the attention of the Tribunal to the allegations of the Indictment which are specifically supported by them. Having proved the corpus of the crime in this way, I will follow the presentation of this evidence with a more on less chronological presentation of the details of the aggressive war fare producing more detailed evidence of the relevant activities of the conspirators from 1933 to 1941. this point, before developing the case in detail, are tenin number. The documents have been selected to establish the basic facts concerning each phase of the development of the Nazi conspiracy for aggression. Each document is conspiratorial in nature. Each document is one, I believe, hereto unknown to history and each document is selfcontained and tells its own story. Those are the three standards of selection which we have sought to apply. an orderly, planned sequence of preparation for war. This is the period covered by paragraphs 1 and 2 of section IV (F)of the Indictment, to be found at page 7 of the printed English text, The essential character of this period was the formulation and execution of the plan to re-arm and to re-occupy and fortify the Rhineland, in violation of the treaty of Versailles and other treaties, in order to acquire military streng and political bargaining powers to be used against other nations books.
They are English translations of German documents in some cases German versions. I shall ask that they be handed up and we will hand one copy at the moment to counsel for the defendants. It has been physically impossible to prepare twenty one sets of them. If possible we shall try to furnish further copies to the defendants.
DR. DIX: I would be very much obliged in order that there should be no misunderstanding. We have arranged that tomorrow-
THE PRESIDENT: Speak a little bit slower.
DR. DIX: We have arranged that tomorrow we will discuss with the authorities in what way in the future the whole of the evidence may be made available to all the Defense Counsels. It is, of course, necessary that no one has the advantage over the other. For this reason, I should like to acknowledge the good will on the part of the prosecution in this difficult situation. be unfair advantage over the others. I am not in a position during this procedure to give my colleagues the evidence. For this reason, I hope you will understand if I do not accept this document. I am convinced that tomorrow we shall agree how in a perfect manner we can receive the evidence, and we shall try to continue today in the former manner.
THE PRSIDENT: Can you inform the Tribunal how many copies of these documents you will be able to furnish the Tribunal by Monday?
MR ALDERMAN: I cannot at the moment. If your Honor please, may I make this suggestion in connection with it, which I think may be of help to all concerned? I think many of us have underestimated the contribution of this interpreting system to this trial. We all see how it has speeded the proceeding, but in so far as my presentation of German documents is concerned. I shall let the documents speak.
I expect to read the pertinent parts of the documents into the system so that they will go into the transcript of the record. Counsel for the German Defendants will get their transcript in German; however, our French and Russian Allies will get their transcript in their language, and it seems to me that that is the most helpful way to overcome this language barrier. I can recognize that for Dr. Dix to receive a volume of documents which are English translation of German documents might not seem very helful to him. Further, as an aid, we will have an original German document in Court, one copy, and if the Court will allow, I would ask that the original German document, from which I shall read, be passed tothe German interpreter under translation back into perhaps a bad German, he will have the original document before him and in that way, the exact German text will be deliverered in the daily transcript to all of the Counsel forthe Defendants. I hope that maybe a helpful suggestion.
THE PRESIDENT: That, to some extent depends, does it not, upon how much of the document,you omit?
MR ALDERMAN: That is quite true, Sir, as to these ten documents with which I propose to deal immediately. I expect to read into the transcript practically the whole of the document, because, the whole of them is significant, much more significant than I could say. Also all of these ten documents were listed in the list of documents which er furnished Counsel for the Defendants, I believe, the 1st of November.
THE PRESIDENT: You say that was in the list. Are the documents very long?
MR ALDERMAN: Some of them are very long and some of them are very short; you can't generalize. Whenever it is a speech of Adolf Hitler you can count it is fairly long.
THE PRESIDENT: Can you not by Monday have in the hands of every member ofthe Defense Counsel copies of these ten documents. It is suggested to me that the photostating could be done quite easily. MR ALDERMAN: I understand both our photostatic facilities and our mimeographing facilities are right up to the hilt with work. It is a very difficult mechanical problem.
COLONEL STOREY: If the Tribunal please, in further explanation, the documents which Mr Alderman intends to offer were on the Defendant's list filed in the Document Center on the 1st day of November, 1945. Lt Barrick had twenty-three, each one photostated as far as he could on that list. Six copies went into the Defendants Information Center, Now, we can't say at this time whether six copies, that is, photostatic copies of each one have been furnished to the Defendants, but whenever they wanted copies of any particular one, either the original was exhibited to them or photostatic copies were made. unsurmountable, to make twenty-three photostatic copies which are required of every document.
THE PRESIDENT: If I may interrupt you, I imagine the list which was deposited on the 1st of November, did'nt contain only these ten documents but contained a great number of other documents.
COLONEL STOREY: That is correct, Sir.
THE PRESIDENT: So that the Defendant's counsel would'nt know which out of that list of documents were going to be relied upon.
COLONEL STOREY: Except, Sir, they were notified that the prosecution would use all or some of those documents and if the copies were not furnished upon request, they had been made and delivered to them. furnish ten sets of all of these to Defendant's Counsel and there will be one complete set. One complete set was delivered to Defendants Counsel here now as a convenience to follow. The other sets I feel certain will be in their hands sometime Sunday, but one complete list we now turn over to them--not a list, complete copy, Sir.
DR SIEMERS: I beg the pardon of the Court for being rather hoarse. I should like to point out one fact. The prosection had declared this morning that those documents that will be put before us today are contained in the list which on the 1st of November was made available to us, or was in the list which was made available to us this morning. This morning a list was made available to us in room fifty-five. I have it in my hand This morning nine documents were named.
Of these documents only one, contrary to what the prosecution said, was present; the other eight or nine documents were neither in the old list, nor in the new list. The eight documents are, as I ascertained at lunch-time today, not in the document room, not available in photostatic copies, so they could not be made available to us. I think, your Honors, that it will not be possible for us to work on this basis.
I therefore request that, first of all, we may wait until we have had our discussion tomorrow with the prosecution, which they have kindly offered to us and see how this -
THE PRESIDENT: The Tribunal proposes to adjourn now and to give Defense Counsel the opportunity of meeting Counsel for the Prosecution tomorrow morning. Both Counsel for the prosecution and Defense Counsel appear to be perfectly ready to make every possible effort to deal with the case in a most reasonable way, and at that meeting you will be able to discuss these documents which you say have been omitted and Counsel for the prosecution will try to satisfy you with reference to the other documents.
Dr. SIEMERS: I have one more request. It has just been said by the prosecution that it will hardly be possible to make twenty-three photostatic copies. I believe, your Honors, if this is a case of such very important documents, as the prosecution said today, it is a contiguous sine qua non that every Defense Counsel and every accused should have a photostatic copy of these documents. that in a few hours with the excellent apparatus that the prosecution has here. In my opinion, it ought to be an easy matter to produce twenty or forty copies of ten documents in forty-eight hours.
THE PRESIDENT: Well, you will meet the Counsel for the prosecution tomorrow and attempt to come to some satisfactory arrangement with them then; and now the Tribunal will adjourn.
(Whereupon, at 1645 hours the hearing of the Tribunal 1000 hours.)
Military Tribunal, in the matter of: The Dr. SAUTER:
(Defense Counsel): May it please the Court, I should like to make an application. I am Dr. Sauter and defend the accused von Ribbentrop. Dated the 30th of October, the accused, von Ribbentrop, requests that his former secretary, Margerita Blank, who at the time was in the prison at Nurnberg, might be made available to him in order that he might make his answer to the indictment and make a complete survey of the way he carried out the duties of his office during the last seven or eight years. He wished to dictate them. The accused, von Ribbentrop, thereupon, for a few hours was able to dictate, but this was stopped for reasons, which are unknown to the accused, von Ribbentrop. Ribbentrop has also not received back the notes, which he dictated to his secretary, neither in shorthand nor in typed script; nor has he been able since then to dictate to Fraulein Blank. Ribbentrop then repeated his request on the 15th of November, but Miss Blank has not since then been made available. The accused, von Ribbentrop, therefore, makes the application to the Court that the President be good enough to decree that his former secretary, Margerita Blank, be made available again in order that he might dictate to her an he considers necessary. Such permission seems to be necessary for the orderly preparation of Ribbentrop's defense before his hearing and for the hearing of the defense witnesses. be treated is so voluminous that no other way of treating it seems possible to us. The accused, von Ribbentrop, has a further request to make.
He has often asked that some of his former colleagues, in particular, Ambassador Gaus, the Ambassador van Rintelen, Minister von Sonnleitner, Professor Fritz Berber, and the Under Secretary of State Henke might be brought to Nurnberg as witnesses, and that he may be permitted, in the presence of his counsel, to speak to these witnesses. This request has been refused in part by the Court on the 10th of November; for the rest it has not been decided. the question of the whole of foreign policy for the last seven or eight years, to give a clear and exhaustive account of the foreign policy of the last seven or eight years, if nothing is made available to him except a pencil and paper. The White Books of the Foreign Office, for which he has asked, have not been given to him. Von Ribbentrop, considering the voluminous character of the material, which the foreign policy of Germany entailed during the last seven or eight years, cannot possibly remember every single date of the events and the documents, ct cetera, simply without any outside aid. If his memory-by means of a discussion with his former colleagues -- could be supported by this, then without this he would find it impossible. taking a great many sleeping drops, in particular bromides, and for this reason his memory has suffered considerably. For the investigation of the historical truth in a field, which not only interests the Court, but also the whole of the world, very little would be gained if von Ribbentrop in the course of his hearing would have to declare over and over again he could not remember a great number of details. named colleagues may be brought here and that Ribbentrop receive permission, in order to prepare for the rest of the trial, to discuss the material with them.
THE PRESIDENT: The Tribunal has already intimated to Defendants' Counsel, that all applications should, as far as practicable, be made in writing and they consider that the applications, which have now been made orally, should have been made in writing.
They will consider the facts with reference to the application in respect to the Defendant Ribbentrop's secretary. The other applications, as to witnesses and documents, which have been made in writing, have been considered or will be considered by the Tribunal.
DR. SAUTER: Mr. President, allow me to make the observation that the applications which I have made today, have often been lodged with the Court in writing, but my client is very anxious lest he should have difficulties in preparing his own hearing.
THE PRESIDENT: As was announced at the sitting on Friday, Counsel for the Prosecution, were to try and arrange with Defendants' Counsel some satisfactory arrangement with reference to the production of documents in the German language. In accordance with that announcement, Counsel for the Prosecution saw Counsel for the Defense, and representatives of the Prosecution and the Defense, appeared before the Tribunal and the Tribunal has provisionally made the following arrangement: First, that in the future, only such parts of documents as are read in Court by the Prosecution, shall in the first instance be part of the record. In that way, those parts of the documents will be conveyed to Defendants' Counsel through the earphones in German. Second, in order that Defendants and their Counsel may have an opportunity to inspecting such documents in their entirety in German, a photostatic copy of the original and one copy thereof shall be deposited in the Defendants' Counsel room at the same time that they are produced in court. Three, the Defendants' Counsel may at any time refer to any other part of such documents. Four, Prosecuting Counsel will furnish Defendants' Counsel with ten copies of their trial briefs in English and five copies of their books of documents in English at the time such briefs and books are furnished to the Tribunal. Five, Defendants' Counsel will be furnished with one copy each of the transcript of the proceedings. That is all.
THE PRESIDENT: I call upon the prosecuting counsel for the United States.
MR. ALDERMAN: May it please the Tribunal, may I make, Mr. President, one inquiry with reference to your reference to trial briefs. Court trial briefs. Whatever I have in the nature of trial briefs will be put over the microphone. I wonder if that is satisfactory.
THE PRESIDENT: I think what I said meets that case.
MR. ALDERMAN: I thought so, yes.
THE PRESIDENT: Because what I said was that the defendants' counsel would be furnished with ten copies of the trial briefs in English at the same time that they are furnished to the Tribunal. Therefore, if you don't furnish the trial briefs to the Tribunal none will be furnished to the Defendants' counsel.
MR. ALDERMAN: Yes. introductory statement preliminary to the presentation of evidence on the aggressive war aspect of the case. In that introductory statement I had invited attention to the parts of the Charter and to the parts of the Indictment which are pertinent to this aspect of the case. I had also discussed the relationship between recorded history and the evidence to be presented, indicating what sort of additions to recorded history would be made by the evidence contained in the captured documents. presenting singly a handful of captured documents, which, in our opinion, prove the corpus of the crime of aggressive war, leaving no reasonable doubt concerning the aggressive character of the Nazi war, or concerning the conspiratory premeditation of that war. I indicated to the Tribunal that after proving the corpus of the crime in this way I would follow the presentation of this evidence with a more or less chronological presentation of the case on aggressive war, producing evidence in greater detail of the relevant activities of the conspirators from 1933 to 1941.
make plans about presentation than to keep them. There have been, by necessity, some changes in our plans. I indicated on Friday that to a certain extent the American case under Count 1 and the British case under Count 2 would interlock. The British Chief Prosecutor, Sir Sidney Shallcross, is by force of circumstances required to be in London this week. He expects to be back next week. The intention now is that he will make his opening statement covering Count 2 of the Indictment, and such interrelated parts of Count 1 of the Indictment as have not by then been presented, when he returns on Monday. Court's views, is that I shall continue as far as I may within two days of this week on the detailed story as to aggressive war; that thereupon we shall alter the presentation and present some other matters coming under Count 1. Then, following the British Chief Prosecutor's opening on Monday of next week, we shall continue jointly with the Chapters on Poland, Russia, Japan, as parts of both Counts 1 and Counts 2. While that may not be strictly logical it seems to us the best method to proceed under the circumstances. by an orderly, planned sequence of preparation for war. This is the period covered by Paragraphs 1 and 2 of IV(f) of the Indictment. This may be found at Page 7 of the printed English text of the Indictment. execution of the plan to rearm and to re-occupy and fortify the Rhineland in violation of the Treaty of Versailles and other treaties in order to acquire military strength and political bargaining power to be used against other nations.