That is on page 25, and defendant Jodl says, "This order is intended for commandos only and must not under any circumstances fall into enemy hands." Was that the case, that because you and the Defendant Jodl were ashamed of the order, that you had this secrecy provision put on it?
A I haven't found it yet, I am afraid. I would life to find the provision. I have got the page 25 and that teleprint letter.
Q From the Oberkommando Wehrmacht, dated 19 October. Now have you got it., the second sentence.
A Is the date October 18, 1942?
Q 19 October, issuing the order ofthe 18th. "This order is intended for commandos and must not under any circumstances fall into enemy hands." Was that because you were ashamed of the order, that it was put like that?
A I haven't seen the letter and I could consider it proper that General Jodl should be asked. I don't know the decree but our reaction on the order has already been explained by me. I can't give you the reason.
Q You can't give me the reason forth is secrecy?
A I don't know the motives which werebehind it and may I ask you, please, to put this question to General Jodl. I haven't seen the whole letter, but regarding my views and those held by General Jodl, I have already stated what they were. it with regard to this. If you look -- I guess it is page 31, our book, it is a report from Hitler wherein he says "The report on this subject appearing in the armed forces communique will briefly and laconically state, that sabotage, terror, or destruction units had been encountered and exterminated to the last man." You were doing your best -- and when I say "you", I mean you collectively, Hitler, yourself, and Jodl and everyone else concerned -- you were doing your best to keep quiet about this, about anything being known about this order, weren't you?
A That was not my impression. We always mentioned the fact in the daily bulletin of the armed forces. We always referred to that thing, as to my recollection; namely, that in the daily bulletin we did say that and that incident had occurred and this and that are the consequences; that is my recollection.
because in that regard, you remember after the Soviet Union tried certain people at Karkov, when you were trying to get up counter propaganda -- now, look at this document, about these executions, it is page 308, document UK-57. You have a copy of it. I am only going to ask you about two incidents. You see it is a memorandum and the passage that I want you to look at is number 2, the fourth memorandum, paragraph 2, which is headed "Attempted attacks on the Battleship Tirpitz." Do you see that?
A Just one moment, I haven't found it yet, the matter of the Tirpitz, I mean.
Q Have you got it? Just, now, listen: "At the end of October 1941, a British commando that had come to Norway in a cutter, had orders to carry out an attack on the Battleship Tirpitz in Drontheim Fjord, by means of a two-man torpedo. The action failed since both torpedoes, which were attached to the cutter were lost in the stormy sea. From among the crew, consisting of eight men who were English and four Norwegians, a party of three Englishmen and two Norwegians were challenged on the Swedish Border; however, only the British seaman, Robert Paul Evans, born 14 January 1922, in London, could be arrested and the others escaped into Sweden. Evans had a pistol peach in his possession, such as are used to carry weapons under the armpit and also knuckle duster." And in the next line: "..........representing a breach of international law could not be proved." Did incidents such as that, under this order, come to your attention?
A The actual incident I don't remember, but it is clear that it has been reported by the department. years, that emphasized your military position. What, in the name of all military tradition, has that boy done wrong by the towing of a two-man torpedo to make an attack on a battleship; what had he done wrong?
A No, this is an attack against a weapon of war; if it was done by soldiers as members of armed forces, then this is an attack against a military targed by the use of sabotage.
a battleship, what is wrong with a sailor doing that? I want to understand what is in your mind. What do you as a man who has been a soldier for forty years, what do you see wrong for a man doing that, towing out a torpedo against a battleship? Tell us. I can't understand what is wrong.
an aerial bomb. I recognize that, I recognize that it is a perfectly legal attack. putting the others in as they are all just the same, men in uniform coming up to the Girand to attack German ships.
What I want to understand is this. You were a Field Marshal, standing in the boots of Bucher, Gneisenau and Moltke. How did you tolerate all these young non being murdered one after the other without making any pretests? by me and confessed in detail and I cannot today alter the facts. I know that these matters have happened, these incidents, and I know the consequences.
Q But, Field Marshal, I want you to understand this. As far as I know in the German military code, as in every military code, there is no obligation on the part of a soldier to obey an order which he knows is wrong, which he knows is contrary to the laws of war and law. It is the same in your army and our army and I think in every army, isn't that so? by me personally. I was neither at the Girand nor present at the attack of the Battleship Tripitz. I have merely known that the order was issued, together with all the throats of sentences which prohibited commanders from departing from the existing instructions. and I have given you a clear cub answer, that it was impossible for me to prevent the action in the case of the Girand and the Tirpitz if I wanted to.
Q You see my difficulty. I have only given you two, there are plenty more. There are others which occurred in Italy which we have heard. The point I am putting to you is this. You were the representative, that you have told us a hundred times, of the military tradition. You had behind you an officers corps with all its -
A No, no Mr. David, I have to deny that. I was neither responsible for the navy nor for the army nor for the air force. I was not a commander, I was a Chief of Staff and I had no influence upon the carrying out of orders in the various sub-sections of the armed forces.
I had no right to interfere. perfectly clear. You were a Field Marshal, Kesselring was a Field Marshal, Milch was a Field Marshal, all I gather with military training behind them and all having their influence if not their command, amongst the armed forces of Germany. How was it that there was not one man of your rank, of your military tradition with the courage to stand up and oppose cold-blooded murder? That is what I want to know. cannot say any more about that. As far as the others are concerned, I cannot talk for them. been asked to deal with some matters for the French delegation. were flying with the Russians. Do you remember making an order about that? You captured some De Gaullists, as you called them, that is Free French people who were fight ing for the Russians. Do you remember your action with regard to that? handing ever of these Frenchmen to their government, the one that had been recognized by us. you.
"Detailed investigations are to be made in appropriate cases against relatives of Frenchmen who fight for the Russians. If these relatives are residents in the occupied area of France, if the investigation reveals that relatives have given assistance to facilitate escape from France, then severe measures are to be taken. OKW/WR is asking the necessary preparations with the military commander on the spot and with the SS and police chief. (Signed) Keitel." the mother of a young man who has helped him to go and fight with the allies of his country? Can you imagine anything more despicable?
war. on. make and the point which I make. Losing sons in a war is a terrible tragedy. Taking severe measures against a mother of a boy who wants to go and fight for his country's allies, I am suggesting to you is despicable. The one is a tragedy, the otter is the height of brutality. Do you not agree? investigations should have. I do not know. at something else. suffered for the misdeeds of their sons.
Q Well, I will not waste the time by taking up the word "misdeed." If you think that is a misdeed it is not worth our discussing it further. I just went to protest against your word.
Now, let us see, that was not an isolated case. Just look at page 110 (a) of the document book which you have ( age 122). This is an order quite early on, the 1st of October, 1941.
"Attacks on members of the armed forces Lately committed in the occupied territories give reason to point out that it is advisable that military commanders always have at their disposal a number of hostages of different political tendencies, namely (l) nationalists, (2) Democratic-bourgeois, and (3) communists. It is important that among thorn shall be well-known, leading personalities or members of their families whose names are to be made public.
Depending on the membership of the culprit hostages of the corresponding group are to be shot in case of attacks.
It is asked that commanders be accordingly instructed, (Signed) Keitel." bourgeois that your commanders should have a sufficient bag of democraticbourgeois to shoot as hostages? I thought you were not a politician. originate from me but it is in accordance with the instructions regarding hostages which I had mentioned the day before yesterday or yesterday and which states that these who were held as hostages must come from those circles who originated the attacks. That is my recollection and is an explanatory statement or a confirmation. a member of a democratic-bourgeois family who had been taking part in say sabotage or resistance, thatyou should shoot a number of democraticbourgeois on his behalf? Did you approve of that? tages were ordered, how they were to be handled, and how the shooting of these people was to take place. number of democratic-bourgeois to we taken as hostages for one democraticbourgeois who happened to be -
A It doesnot say so in the document, it does not say so. What it saysis that the names of the hostages should be taken, and not as to their shooting. depending upon the membership of the culprits, that is, whether he is a nationalist, or a democratic-bourgeois or communist, "hostages of the corresponding group are to be shot in case of attacks." out in such form or another. Just how it was handled in practice that becomes clear from the document referring to the discussion between the commanders.
Q I now ask you, did you approve of that? hostages, but I signed it, because I had been told and ordered to do so.
Q You said you had a differ at view. Will you just look at a letter from Herr Terboven, who was in charge in Norway, Document PS-870, and it is page 85, 71 (a), GB 307. This is a report from Terboven for the information of the Fuehrer and I what you to look at paragraph 2 "Counter Measures", sub-paragraph 4. Do you see it? Have you got it, defendant? I am sorry, I did give you the number, probably you did not hear it, 71 (a), page 71 (a) of the document book. So sorry I did not make it clear.
SIR DAVID MAXWELL FYFE: My Lord, I am told that this has been put in by the French Prosecution as Exhibit RF-281. I gave it a GB number, as I recall.
THE PRESIDENT: What number is it?
SIR DAVID MAXWELL FYFE: RF-281. BY SIR DAVID MAXWELL FYFE:
Q Do you find section 2, paragraph 4. That is:
"Just now I received a cable of Fieldmarshal Keitel, in which the issue of a decree is demanded, according to which members of the personnel, and, if the occasion arises, their next of kin are directly responsible for cases of sabotage occurring in their department. This demand makes sense and promises success only if I am actually allowed to perform execution by firing squads. If this isnot possible, such a decree would cause exactly the opposite reaction."
Opposite the word "If I am actually allowed to perform executions by firing squads" there is the pencil note from you, "Yes, that is best." So that is a third example where I suggest you, yourself, are approving and encouraging the shooting of next of kin for the act of some member of their family. What do you say to that, your own pencil note? worded very differently. A reply was made which was worded differently, but I have written that remark there.
Q That's what I wanted to know. Why did you write this remark, "Yes, that is best", approving of a firing squad for relatives of people who had committed some occupation offense in Norway? Why did you think it was best that there should be a firing squad for the relations? Why?
A It wasn't done and It wasn't ordered. What wasordered was something different.
Q That's not what I'm asking, and I shall give you one more chance of answering it. Why did you put with your pencil on that document, "Yes, that is best"?
A I can't explain it to you today, considering that I've seen hundredsof documents daily. I've written it and I'm admitting it now.
you've written, it meant that you approved it yourself and thought the best course was that the relations should be shot by the firing squad.
SIR DAVID MAXWELL FYFE: I think My Lordship said that you wished to adjourn.
THE PRESIDENT: Yes.
SIR DAVID MAXWELL FYFE: I am not finished, my Lord. I have a few matters for Monday morning.
THE PRESIDENT: Well, the defendant can return to the deck, and we will proceed with the other applications.
Sir. David, shall we deal with these applications in the same way we have done before?
SIR DAVID MAXWELL FYFE: Yes, My Lordship. The first one that I have is an application on behalf of the defendant Kaltenbrunner for a witness called Hoess, who is the former Commander of the Auschwitz Concentration Camp. My Lord, there is no objection on the part of the Prosecution to that.
THE PRESIDENT: So that is the application v/hich has to be made by a great number of the defendants' counsel.
SIR DAVID MAXWELL FYFE: Oh, yes, My Lordship is quite right. secution feels that he could contribute to the information of the Tribunal, if no objection is to be coming.
THE PRESIDENT: Dr. Stahmer, I see that you are among the counsel who applied for him. Is there anything you wish to add about that?
DR. STAHMER: I have nothing to add to my written application.
THE PRESIDENT: Thank you. Then the Tribunal will consider them, you see, after you have dealt with them.
SIR DAVID MAXWELL FYFE: My Lord, the next one is Dr. Navile. Dr. Navile was allowed as witness to the defendant Goering, provided he can be located. He has been located in Switzerland and I understand he has informed the Tribunal that he sees no use of his coming here as a witness for Goering, and he is now asked for by Dr. Nelte, counsel for Keitel, to prove that prisoners of war had been treated according to the rules of the Geneva Convention, Mr. Navile having been a representative of the Red Cress.
Dr. Nelte, I am told, will be satisfied with an interrogatory, and the Prosecution have no objection to an interrogatory.
THE PRESIDENT: Dr. Nelte.
DR. NELTE: That is correct, yes. If I may have permission, then I would be agreeable to permit the questions to Dr. Navile which I have to put to him in writing. But may I add something here, not to this application, but withreference to another application, which I have already, I think yesterday or the day before, submitted to the Prosecution through the translating department. My application regarding Hitler's stenographers and their admissibility as witnesses had been refused by the Tribunal, saying that they are irrelevant. I have now received a letter, together with an affidavit from one of these stenographers, and in that affidavit I find a passage which refers to Keitel's conduct towards Hitler during his reports and during their conferences. It has been said in public, and it has been said in this courtroom, that the defendants are always quoting dead people whenever they want to state anything in their favor, Keitel would like to ask that the part of the affidavit, which I shall submit to the Tribunal, having already submittedit to the Prosecution, should be admitted so that the witness can be forfeited, but that, nevertheless, I would have the possibility to submit that passage of the affidavit, provided that the Prosecution would agree.
SIR DAVID MAXWELL FYFE: If Dr. Nelte, My Lord, will submit the passage, we will consider it, but I have not had the chance of doing it up until now.
THE PRESIDENT: Well, you will carry out that course, if you want no objection to it.
SIR DAVID MAXWELL FYFE: Verywell, you will let me have it, a copy of it?
DR. NELTE: Yes.
SIR DAVID MAXWELL FYFE: My Lord, the next application is on behalf of the defendant von Schirach, a request to submit an affidavit of Dr. Hans Carossa. The gist of the affidavit is that the defendant tried to keep himself independent of Party directives in matters of literature and art and that, while Gauleiter in Vienna, he repeatedly intervened on behalf of Jews and concentration camp inmates.
My Lord, the Prosecution has no objection to an affidavit being filed.
SIR DAVID LAXWELL-FYFFE: The next is an application on behalf of the Defendant Funk for interrogation to be submitted to Mr Messersmith.
THE PRESIDENT: Just wait a minute.
SIR DAVID MAXWELL-FYFFE: I am sorry.
THE PRESIDENT: Yes, sir David?
SIR DAVID MAXWELL-FYFFE:My Lord, the next is an application on behalf of the Defendant Funk, asking for interrogatiories to be submitted to or Messersmith dealing with Funk's relation to the Party and his work in the Reich Ministry of Propaganda. My Lord, the Prosecution have no objection, but remind the Tribunal that the defendant Funk has already, on the 15th of March, asked permission to submit another affidavit to Mr Messersmith, dealing with MR Messersmith's affidavit. The Prosecution did not raise any objection, but the Tribunal has not, as far as we know granted that yet. So I wanted the Tribunal to know there was a previous request -
THE PRESIDENT: Do you mean an affidavit or interrogatory on the 15th of March?
SIR DAVID MAXWELL-FYFFE: Interrogatories.
THE PRESIDENT: Interrogatories? surely we must have dealt with it.
SIR DAVID MAXWELL-FYFFE: Well, that is the information that my office had They haven't seen the -
THE PRESIDENT: I see.
SIR DAVID MAXWELL-FYFFE: In case the Tribunal hadn't dealt with it, we want to know that there is one outstanding. We have no objection to either.
Then the Defendant Rosenberg requests Hitler's decree to Rosenbers of June 1943. There is no objection on the part of the Prosecution. I am told that we can't trace any previous application but the position at the moment is that we haven't any objection to it. for Proffessor Kossuth, a resident of Prague. Really they ask for interrogatories My, Lord, there is no objection to interrogatories. from Dr. Dix on behalf of the Defendant Schacht, the downgrading of Herr Huelse, who was drafted as a witness, to an affidavit. My Lord, we have no objection to that.
DR. DIX, (Counsel for the defendant Schacht): This is the witness Hueles. He had been granted to me as a witness. So as to simplify and abbreviate, I have decided to forfeit the right to hear the witness and use an affidavit. I have received the affidavit. Whilst this application of mine was pending, however, the witness arrived in Nurnberg and he is here now, and I think therefore it would be best if he stayed and I had permission to examine him in such a way that I present his own affidavit to him and then ask him whether he will identify it. And if I could have your permission, I would like to ask him one of tow additional questions. I think that would be much more practical than to have the witness come here and then send him away again and have nothing but an affidavit.
What I wanted to say was to point out the difficulty of getting him here -
SIR DAVID MAXWELL FYFE: The withdraw the application to have the affidavit -
THE PRESIDENT: Is the witness Huelse a prisoner or not, or an internee?
DR. DIX: No, he is a free witness. He is a free witness. He is not in detention. And he is going about Nurnberg freely.
THE PRESIDENT: Can he remain here until the Defendant Schacht's case comes on?
DR. DIX: I have talked to him and he has told me that he can stay, yes.
SIR DAVID MAXWELL-FYFE: My Lord, we have no objection. The Tribunal has already granted him as a witness. If Dr. Dix wishes him as a witness, of course we have no objection to it. an affidavit from a Dr. Herold. To put it quite shortly, the Prosecution suggests that it should he interrogatories rather than an affidavit, and on that basis we would make no objection.
My Lord, there is only one thing I have to say. We had a most useful discussion with Dr. Dix last night, following out the Tribunal's suggestion of going through the documents. Dr. Dix was most helpful in explaining the purpose of his documents and what they were. I do suggest that if any of the Defense Counsel when they are explaining the documents would also care to explain the purport of their witnesses -- I don't want to embarrass them in any way -- but if they would voluntarily explain the purport of witnesses, either to Mr. Dodd or myself, we might be able to save them a great deal of time, by indicating whether the evidence of that witness would be agreed to or might be the subject of objection. if they would extend it to witnesses, I am sure we could have most profitable cooperation.
THE PRESIDENT: You are suggesting. Sir David, are you, that they should explain to you the nature of the evidence which the witness was going to give?
SIR DAVID MAXWELL-FYFE: Yes.
THE PRESIDENT: And if the Prosecution were not going to dispute it, that it might be incorporated in an affidavit?
SIR DAVID MAXWELL-FYFE: Yes, that we could probably dispense with the witness, and probably incorporate that in an affidavit. Of course, I have been told the general purport of the witness, because I attended on the application, but if they could elaborate on it a little more and let me know what the scope of the witness's testimony would be, I could concede, either in whole on in part, and save them a lot of work and the Tribunal a lot of time.
THE PRESIDENT: Well, I think the Tribunal would like to know whether the Defendants' Counsel think that is a possible course, whether it might lead to same shortening of the Defense. Could Dr. Dix possibly tell us whether he thinks it would he possible?
DR. DIX: Of course, I can't make the statement on the reaction of my colleagues, since I cannot read their minds. All I can state at the moment is that the type of conversation which I had the honor of having with Sir David yesterday appears to be extremely practical and very advantageous. Personally, I am inclined to think that my colleagues too would probably agree to that, unless there are some difficulties that might arise.
THE PRESIDENT: Do you understand what Sir David was suggesting, that such a conversation should apply not only to documents but also to witnesses and that if you could indicate more fully than you do in your applications what the subject of the testimony was going to be, possibly the Prosecution might he able to say in those circumstances that upon those matters we should not propose to dispute the evidence and therefore it might he incorporated in an affidavit?
SIR DAVID MAXWELL-FYFE: My Lord, if your Lordship allows me to interject, if they care to bring a statement on a particular witness's testimony, the Prosecution would, I am sure, in many particulars be prepared to say, "Well, you produce that statement on that point and we will admit it, without any formality."
THE PRESIDENT: Perhaps, Dr. Dix, you and the other Counsel for the Defendants could consider that matter.
DR. DIX: Yes. I understood it exactly as you, My Lord, have just stated it, and of course I had talked about both witnesses and documents with Sir David. And in that sense we came to an agreement.
THE PRESIDENT: If that is all we need do at the moment, then -
SIR DAVID MAXWELL-FYFE: If your Lordship pleases, yes.
THE PRESIDENT: -- then the Tribunal will adjourn.
(The Tribunal adjourned until 8 April 1946 at 1000 hours.)
BY SIR. DAVID MAXWELL FYFE: who escaped from Sagan Camp. As I understand your evidence, very shortly after the escape, you had this interview with Hitler at which certainly Himmler was present. That is right, isn't it?
Q Yes. Now, you say that at that conference Hitler said that the prisoners were not to be returned to the Wehrmacht but to remain with the police. They were really your words. That is right isn't it?
Q That is that you said. So that is what you say took place. In your own mind, you were satisfied Then you left that conference, that these officers were going to be shot, were you not?
Q Now, will you agree with this? You were satisfied that there was a grave probability that these officers would be shot? not discussed at the conference. you not?
q I don't know if you cam remember, because General Westhoff was a comparatively junior officer compared with yourself, but he sold that it was the first occasion on which you had sent for him. Does your memory boar that out?
A No, I did not call him. He had been brought along so that I could meet him because I had never mot him before. I had only summoned General Graevenitz.
Q You had never met him before? Do you agree that you had never met General Graevenitz before since he had come into that job?
Q That is what he said. Now you agree, as I understand your evidence, that you were very excited and nervous? to this effect, "Gentlemen, this is a bad business" or "This is a very serious matter" or something of that kind? "This morning Goering reproached me in the presence of Himmler for having lot some more prisoners of war escape. It was unheard of."
A That must be a mistake of Westhoff,s part. A day later, we were at Berchtesgaden and General von Graevenitz and Westhoff called on me the next day, the next morning, and it must be a mistake; also that I mentioned the name of the Reichsmarshal G oering in this connection. That must also be a mistake.
Q So you weren't very sure about that, were you, as to whether or not G oering was present. You weren't very sure, were you? I was told that witnesses had stated that Goering was present; thereupon I said it is not completely impossible but I do not exactly recall it.
Q Well, that is quite right. When you were interrogated an American officer put to you exactly the sentence that I put to you now. He put that sentence to you, from General Westhoff's statement. Do you remember that he read what I have read to you now? "Gentlemen. this is a bad business; this morning Goering reproached me in the presence of Himmler for having let some more prisoners of war escapt. It was unheard of." Do you remember the interrogator put that to you, didn't he?
A. It was something like that but I believe I said that I was not certain that Goering was present at all.
Q. I was going to put exactly what you said -- and you listen carefully, and if you have any disagreement, tell the Tribunal. You said, "I request that you interrogate Jodl about the whole incident and the attitude which I displayed during the whole conference in the presence of Goering, of whose presence during that conference I am not absolutely certain, but Himmler was there." That was your view when you Were interrogated on the 10th of November, wasn't it? You said" .... during the whole conference in the presence of Goering, of whose presence I am not absolutely certain...." That was your view on the 10th of November?
A. No, that must have been misinterpreted through the record, which I never read. I expressed my uncertainty about the presence of Goering and in the same connection put the question and the request to interrogate Colonel General Jodl in this connection also, since I was -